Posted By Bob Y
Dave, I most certainly did not say that "anything is OK if you get away with it" at all. You have made a quantum leap from a discussion on risk retention, risk management and compliance (or not) to suggesting that I condone a deliberate act of violence. For the sake of clarity, I do NOT condone acts of violence against little old ladies or anyone else for that matter, nor do I consider the mugging of an old lady to be "..everyday business practice", or condone routine breaking of the law per se. I take exception to your correlation/suggestion/comparison.
Life, including working life is not guaranteed to be free from risks, nor is it required to be. In the broader sense, I would have thought that risk retention is the ‘bread and butter’ of ‘health and safety officers’. It is enshrined in the HASAWA (albeit I accept in a different context), and depending on the circumstances it is permissible in law and morally acceptable.
Andrew to try and answer your question “..can being in breach of a statutory requirement ever be legitimate? Let me use a couple of simple (and some may suggest flippant) examples that may or may not help to answer the question.
1. It’s late on a Friday afternoon and I have a ‘hot date’ but I notice that an accident form has arrived on my desk and that this is needs reporting to the HSE under RIDDOR and this is ‘day 10’. To comply with the law and not be in breach of a statutory requirement I MUST report it before I go home. On the other hand I could leave it until Monday when I will be in breach but it will still be reported, it won’t make any material difference and is highly unlikely to lead to any action from the HSE. Yep, you guessed it the hot date wins!
2. Years ago my Mother was pretty poorly and when I went to see her after work I thought that her condition had deteriorated considerably to the extent that I called the out of hours doctor (despite her wish that I shouldn’t). When the doctor eventually arrived he examined my Mother and said that she needed to go to the hospital immediately and that I should not wait for an ambulance but take her myself. So, bundled her into my car and took her to the hospital myself. I didn’t drive like mad but I did on a number of occasions break the speed limit and was therefore in breach of a statutory requirement. Would I do it again? You bet!
Whether that makes either breach legitimate is, I accept debatable, but on balance the risk to me was acceptable. Now to turn to the more specific issue raised by Liam.
I am conversant with LOLER and YES an out of date TE cert is just that, out of date and if push came to shove and an inspector called on those 5 days then you would probably find yourself with a IN, PN or prosecution depending on the circumstances. Of course if there were an accident during those 5 days that could clearly complicate the matter somewhat. For my part, I feel that the safety of the kit is about more than having a TE cert. And of course we could debate the value of a TE cert in isolation (other than to prove that we have complied with the law)!
The fact is that we don't actually know what pieces of kit Liam is referring to, how well they are maintained or what their usage would be over the 5 days (2 of which are weekend days), all of which could and should form the basis for a decision by management as to whether to retain the risk and continue to operate the kit.
We have a fleet of refuse lorries, all of which have a 'bin lift' that are covered under LOLER. They are regularly maintained by our own workshop and have a 'LOLER examination', often on the same day or over a couple of days, each year. So then; the engineer calls to say that he will be 5 days late in coming to inspect them and the fleet manager asks for my advice as to whether we can continue to operate and collect refuse around the district. The really easy decision would be for me to say an emphatic 'NO' and walk away - anybody can do that but I wouldn't feel that I was doing much of a job, if the extent of my advice amounted to no more than what people could or couldn't do in order to comply with the law. Over the years I have come to the conclusion that H&S/risk management is about ‘enabling’ not preventing, nor about mere compliance with a statutory duty. I would happily advise the manager that if he continues to operate the refuse trucks during those 5 days then he would be breaking the law and that if we were caught that we could be served with IN, PN or otherwise prosecuted. I would also discuss whether the fact that we aren't in compliance has a significant effect on the risks to health and safety; and that to me is the key issue, not mere compliance for compliance sake but securing the health and safety of people. As we don't normally collect refuse over the weekend then we would actually only be using the refuse trucks with out of date TE certs for 3 working days, the kit is well maintained, not used for lifting people etc etc then I would be inclined to advise that we could continue with operations, and retain the risk as long as the health and safety risks were properly considered and controlled.
I accept that some of you will consider this to be wrong. I for one don't confuse compliance, for compliance sake, with the proper management of health and safety risks. Acts of risk retention, involving statutory duties must surely happen every single day in various different guises, and I accept often with little or no thought of the consequences, but a carefully considered risk management strategy that includes where necessary a degree of risk retention is IMVHO a valuable tool for most businesses.
And if any of you are still awake after reading this - sorry to have rambled! :-)