Posted By Philip McAleenan
Frank, I am happy to respond to your request and will do so by reference to remarks I made last year in relation to concerns raised by a Mr Penrose, MP, concerning the 40-60 page risk assessments that people are completing (cf. UK parliament Works and Pensions committee).
In respect of the two concepts of Written Risk Assessments, and Significant Risks I made the following observations within which contains my contention that written risk assessments are not a requirement:
The concern of the committee to ascertain the origins of such “over interpretation” of regulations has highlighted a degree of finger pointing with various bodies blaming others but themselves for the situation. However, at this point I wish single out and query the suggestion that this is an “over interpretation of regulation” in the first place.
Firstly, no-one has pointed to the regulation which these excessive risk-assessments are seemingly an over interpretation of. Indeed I would suggest that rather than an over interpretation, what has happened has been an incorrect interpretation of the regulations in the first instance which has led the various bodies and professions concerned to build a monster that has gotten out of hand.
There are two key concepts to this situation that have no basis in regulation, but which practitioners, educators and enforcers suggest are requirements in law. They are;
(a) Written Risk Assessments, and
(b) Significant Risks (and its corollary the trivial risk).
Regulation 3 of the Management of Health & Safety at Work Regulations 1999 states,
(1) Every employer shall make a suitable and sufficient assessment of –
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,
for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.
Risk assessment is a process whereby any given situation is viewed from the point of view of identifying potential sources of harm and thereby permitting the assessor to take such actions as is necessary to prevent that harm being realised. The process is so simple that children are taught to do it, and from an early age can apply it quite effectively to, for example, crossing the road.
As a process we become more skilled as we grow older such that in our daily lives we conduct risk assessments all the time, often subconsciously, and certainly without the need to have a “written risk assessment” available before we can act. As we become competent workers, that same learned ability to assess the work operation grows with our competence to undertake the tasks required of us.
What Regulation 3 does is make a duty of this process as it relates to the employer and his duties to those effected by his undertakings. The duty does not extend to a requirement that all risk assessments are written risk assessments, indeed when we look at Reg.3 (6) there is no requirement the he produce any written risk assessments at all;
(6) Where the employer employs five or more employees, he shall record –
(a) the significant findings of the assessment; and
b) any group of his employees identified by it as being especially at risk.
What he is required to do is record any significant findings of his assessment.
It is by combining the requirement to conduct risk assessments with the requirement to record significant findings that we source the error that is the belief in a “Written Risk Assessment” for every activity, situation, disabled person, pregnant woman etc. in the workplace.
Whilst it may be prudent in more complex operations to have the process of assessment written up, it is not necessary to do so. There are those who would argue that it is only by having the written assessments that we know that the process has been carried out. This is a logical fallacy. The safe work practices that have been developed by operatives, employers and industry in general point to the same conclusion. Such safe practices are the result of full operation assessments (and not just risk assessments) and therefore point to the risk assessment process having been carried out suitably and sufficiently.
Others would argue that the written risk assessment should and must be carried out only where there are significant risks. And this is the second of the interpretation errors. The regulations make no mention of “significant risks”; anywhere.
The error stems from a misinterpretation of Reg. 3 (6), which requires that significant findings be recorded.
In the context of risk assessment a significant finding is a major or substantial conclusion about the risk that still exists and which renders the work operation unsafe to proceed. Something further is required in order to control the work operation / environment. A suitable method statement would be cognisant of any significant findings and a competent worker would aware of and able to implement appropriate controls that will eliminate or protect him from the effects of the hazard. Once such controls have been ascertained and put in place, there should no longer be any significant findings; the work operation should be safe to proceed.
In the light of this we can be assured that written risk assessments, of whatever length, are not an over-interpretation but a misinterpretation of the regulations and with the correct approach to the analysis of any operations, appropriate controls can be developed and implemented with the option to write up the risk assessment component of the process being left up to the employer and his view on the necessity to do so and based on the competent advice of his employees.
Hopefully Frank, this expansion of my thoughts is beneficial,
Regards, Philip