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chris42  
#1 Posted : 08 April 2019 11:08:15(UTC)
Rank: Super forum user
chris42

For a topic of debate, I have been pondering this on and off for a while (prompted by a question someone put in the Members forum).

The Management regulations require you to assess significant risks and if more than 5 employees, record the significant findings. It does not say you have to record the risk assessment, just the significant findings. So, if you were to do a risk assessment in your head and then write a working procedure of how to do something and it be in a safe way with regard to the significant findings of such an assessment (but not specifically highlighting them as significant findings), have you fulfilled your duty to the letter of the law?

I am considering a working procedure / safe working procedure is a set of instructions which will be more than just the safety aspects, but include the safety aspects.

Or do you feel that you physically need a record of the actual raw assessment for a given task.

Chris

Hsquared14  
#2 Posted : 08 April 2019 11:58:32(UTC)
Rank: Super forum user
Hsquared14

That's a very interesting question and the argument about only recording significant findings is fine until you add the civil law into the equation.  This is one of the areas where the proof required in civil and criminal law can be in conflict and produce a difficult situation.  As I see it there are two issues regarding the question of proof as to whether or not you did a risk assessment:

Firstly in criminal law - how do you prove you did the risk assessment in your head and how did you arrive at the conclusion that you didn't need to record anything or that you had the correct significant findings?  In case of an incident it would leave you without so much as a fig leaf if you were being investigated.

Secondly in civil law - if someone brings a claim for personal injury and something as fundamental as a risk assessment for the task doesn't exist then on the fast track protocol the case is likely to be found automatically in favour of the claimant because lack of  essential documentation would make the case indefensible.   This is one of the many reasons why civil claims are settled without any attempt at defense much to the annoyance of the employer. 

Everything has consequences and sometimes those consequences are unforeseen and take you around in ever decreasing circles and this is one of those that can take you down a darker and blinder alley than any other.  My advice is do a simple spreadsheet that shows the tasks you have considered, which ones have a full risk assessment and which ones have a simple tag in the spreadsheet relating to the fact that there are no significant risks. 

Xavier123  
#3 Posted : 08 April 2019 12:48:24(UTC)
Rank: Super forum user
Xavier123

Topic of debate...fun times ahead!

Generally, 'risk assessment' is not defined in law. There may well be some specific legislative requirements for certain hazards (I'm still reeling from an earlier thread 'accident investigation in Sharps legislation spot'!) but the HSE have long been at odds to highlight the multiple possible approaches to risk assessment and hence no 'right' way to do it.

It must fundamentally be possible to not keep a record since you're not legally required to record any findings at less than 5 employees. And thats because risk assessment, the document, does not equal risk assessment, the act. One is a noun, one is a verb. The two things are different and the two requirements in the Management Regulations are different. I postulate that the act of assessment is the critical part of safety management.

I personally have zero problem with accepting that someone has assessed a risk and complied with the law without needing a bit of paper that says risk assessment.  Your example of a work procedure is a good one as it will either show that the risks have been understood and controlled or not.  I would caveat that by highlighting that such an approach should be clearly laid out in company management arrangements. It does somewhat rely on a mature system, clear roles and responsibilities etc. and likely a number of 'pre-requisites' for good safety.

I think the test of 'proving it' is a separate one. One is about you going about complying with the law, the other is about someone else assessing your compliance. Obviously highly related but ultimately not quite the same thing.

The point made above about civil law is right though and promptly undoes all my comments  ;)

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aud on 11/04/2019(UTC)
A Kurdziel  
#4 Posted : 08 April 2019 13:06:37(UTC)
Rank: Super forum user
A Kurdziel

This could just be a matter of labelling- one person’s risk assessment is another person method statement. Xavier is quite right that risk assessment is process not a piece of paper and nowhere in law does it say you have to record the process just its findings (which can then be incorporated into the above mentioned method statement). If we are talking about recording the process-just what would you be recording? Often people think that this is the risk matrix but HSE have made it clear that they are not that bothered about the risk matrix and think too much time and effort is wasted on trying to come up with the “right” numbers when people should really be thinking about how they are going to apply the controls identified by the risk assessment process.  It could be useful to record this process, particularly if you need to “sell” the controls to resistant management and make it clear that you did not just invent the controls from thin air( as some people seem to think)  but legally I think not.

Clark34486  
#5 Posted : 08 April 2019 13:40:55(UTC)
Rank: Super forum user
Clark34486

Couldn't a suitably robust 'method statement/ safe system of work' incorporporate an assessment of risk and therefore fulfill two tasks in one? I've seen method statements that, in essence, evidence an assessment of the risk and then go on to outline a safe methodology.

If I could see just one 'change' to the process of planing and assessing a task (and therefore the hazards within it) it would be to see a robust approach to how a task is safely carried out.

One thing I have seen clearly is that if you involve the person/s in a methodolgy you will get their buy-in, in many cases a risk assessment has only ever been an organisation/ management function. I'f you don't  involve  the end user in the process do you really believe they'll follow your piece of paper?

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A Kurdziel on 08/04/2019(UTC)
johnc  
#6 Posted : 08 April 2019 19:19:57(UTC)
Rank: Forum user
johnc

Cannot find it on HSE website but I am sure that in the last year or so they indicated that if a procedure or method statement shows what controls should be implemented to reduce the risk to someone then it would be indicative of a risk assessment having been carried out.
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MrBrightside  
#7 Posted : 09 April 2019 10:15:28(UTC)
Rank: Forum user
MrBrightside

I often write the process / method statement / ssow (call it what you will) first and from that populate the risk assessment. I often find that putting togeather the process for using a machine or carrying out an activity will highlight the hazards and more often than not the control measures will be devloped organically.

In all honestly for me a process document is far more usful than a risk assessment and pretty much does the same thing without all the 'Potential and Severity' ratings. I would all be for not having two seperate documents.

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stevedm  
#8 Posted : 09 April 2019 11:07:27(UTC)
Rank: Super forum user
stevedm

The presentation of summary findings is what you  are legal obliged to communicate to an employee or others..how you arrive at that is entirely up to you..however, there needs to be evidence to support that you have looked at best practice, industry norms and even calculations where necessary...

Once case from memory Dreamspace 2006 (2 fatalities) - summary findings were available but the designer had omitted to complete background calculations on wind loading etc to support the findings.

chris42  
#9 Posted : 09 April 2019 11:28:49(UTC)
Rank: Super forum user
chris42

Its an interesting point about criminal and civil law I had only been considering Criminal law. Where my thought process was that when looking at the hazards and risks, I considered say there was a manual handling issue due to weight or awkwardness. I would write in the process to use the manual handling equipment provided when doing “x”. therefore, I could demonstrate I had done an assessment as the process statement had use manual handling equipment. I would have thought that should there then be a claim from an employee, due to an injury from lifting, that I would be able to defend by saying there was an explicit instruction to use provided equipment and that person had been trained & instructed as such. So, are we saying that would be blown out of the water because no piece of paper with Risk assessment written on it? Mmm

 

The HSE web site states:-

“Make a record of your significant findings - the hazards, how people might be harmed by them and what you have in place to control the risks. Any record produced should be simple and focused on controls.

Any paperwork you produce should help you to communicate and manage the risks in your business. For most people this does not need to be a big exercise - just note the main points down about the significant risks and what you concluded.” My bold highlighting

 

But on this web site time and time again the discussion has been that risk assessments are a tool/ structured process for examining risks and not for communication to employees necessarily! This lends itself to going straight to SWP. I think what I’m saying is that surely the SWP is proof you have considered particular aspects ie otherwise why would you have written use handling equipment and provided such equipment?

I didn’t mean to imply that all the usual things when considering a risk assessment would not be done, ie discuss with users, review manufacturing info, look at industry guidance etc. But all that can be done before putting pen to paper (or finger to keyboard).

I think if senior management do not understand the process of risk assessment then even showing them a risk assessment is still going to look like you pulled these controls out of the air. Which you did from your experience and training and doing the other things as noted above.

There has been a couple of mentions about changing the paperwork to make it seem like both RA and SWP. I would rather the scenario not go that route at least for now. So to add to the scenario consider you purchase a brand new gadget never used in the company before and it comes with a very explicit set of operating instructions which includes all safety related instructions within it.

It may start with:-

  1. Ensure all operatives have been trained in these instructions before use.
  2. Ensure machine is turned off before placing work piece in clamp
  3. Close guard
  4. Turn machine on

…………..

27) Turn machine off

28) remove work piece

So, everything very explicit, now you may have a risk assessment specific to its location, and for transporting work pieces to and from the area but as far as the operation goes the instruction that comes with the machine is the SWP. Do you still need to do a risk assessment specifically for its operation? Or is the fact the manufacture has done it and produced a SWP from it and given it to you sufficient?

You effectively just risk assess the operations around its use, not its actual use. Like Johnc I feel I have seen something about this in the recent ish past but can not find. Again the management regs don’t specify you have to do the assessment just one has to be done!

Sorry for the length

Chris

Edited by user 09 April 2019 11:30:31(UTC)  | Reason: area has two a's

Xavier123  
#10 Posted : 09 April 2019 11:42:06(UTC)
Rank: Super forum user
Xavier123

Originally Posted by: johnc Go to Quoted Post
Cannot find it on HSE website but I am sure that in the last year or so they indicated that if a procedure or method statement shows what controls should be implemented to reduce the risk to someone then it would be indicative of a risk assessment having been carried out.

Did thou meaneth this draft document?

http://www.hse.gov.uk/risk/draft-indg163.pdf

Hsquared14  
#11 Posted : 09 April 2019 12:43:52(UTC)
Rank: Super forum user
Hsquared14

Originally Posted by: chris42 Go to Quoted Post

Its an interesting point about criminal and civil law I had only been considering Criminal law. Where my thought process was that when looking at the hazards and risks, I considered say there was a manual handling issue due to weight or awkwardness. I would write in the process to use the manual handling equipment provided when doing “x”. therefore, I could demonstrate I had done an assessment as the process statement had use manual handling equipment. I would have thought that should there then be a claim from an employee, due to an injury from lifting, that I would be able to defend by saying there was an explicit instruction to use provided equipment and that person had been trained & instructed as such. So, are we saying that would be blown out of the water because no piece of paper with Risk assessment written on it? Mmm

 

T

In civil law you make your case by presenting your documentation not by a spoken or supplementary written defence.  In a criminal case you get interviewed, you appear in court and can give an account of what happened and why but in a civil case that doesn't happen.  You disclose your documentation and then a decision is made as to whether there is enough information to mount a defence, lack of a written risk assessment is a hole that a coach and horses could be driven through.  Its an anomaly created by a move to more self policing on the criminal law side and the Woolf Reforms and subsequent tweaks aimed at making access to justice easier, quicker and cheaper for all concerned.  Hence most smallish claims submitted to employer's liability insurance companies get paid out almost straight away because it just isn't worth the cost of trying to defend them due to the huge discrepancy in costs.
chris42  
#12 Posted : 10 April 2019 13:00:35(UTC)
Rank: Super forum user
chris42

Thank you all for joining in the discussion I have found it interesting and there seem to have been quite a few views, so I hope others also did.

The original post that lead me to this trail of thought was regarding a franchise. I postulated that a franchise such as my local Ford dealers, would be expected to work to Mr Fords working procedures, which would include how to do it safely. Tasks like removing the air bag from the steering wheel or replacing a clutch which would not be affected by local conditions and there would be step by step guidance and expected to be done a particular way so as not to invalidate any warranty. They may even be expected to use fords own design special tools (so no variation allowed).

When you consider there will be hundreds if not thousands of these types of tasks which will have to be done to their work method, when you consider all the different models and variants, which change constantly from year to year. A single H&S person for a couple of franchise garages would never be able to keep up. But Ford would have a library of working procedures (which include safety requirements from Mr Ford.). Obviously, risk assessments for the periphery tasks (manual handling equipment to transport the clutch etc) will be required as they are likely to be location specific to a degree, but not the core task. These tasks would also be carried out by trained mechanics (possibly specific Ford training)

However, what we are saying is that although Criminal law having a work method that covers all Safety requirements might be sufficient you would need to generate tons of paperwork to satisfy a claim lawyers and insurance companies. How would the company with less than 5 employees fair as they are not required to have a written assessment, just control the risks?

Regards

Chris

NB other car manufacturers exist and are likely to work the same way.

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A Kurdziel on 10/04/2019(UTC)
A Kurdziel  
#13 Posted : 10 April 2019 13:31:15(UTC)
Rank: Super forum user
A Kurdziel

Time for provocative statement!

As far as civil proceedings are concerned there is no requirement to do risk assessments. I challenge anybody to find any binding precedent which spells out the requirement to do a risk assessment.

Prior to 2013 it might have been possible to sue an employer for Breach of Statutory Negligence if the claimant could prove that the defendant had a statutory duty to carry out a risk assessment, that they had failed to carry out such a risk assessment and that the injury that the claimant suffered was as a result of that failure to carry out the risk assessment. Quite a big ask.

Since 2013 due to Section 69 of Enterprise and Regulatory Reform Act 2013, it is no longer possible to sue for Breach of Statutory Negligence in connection with Health and Safety laws.

This means that the only avenue open for someone taking a claim against the employer is to sue for negligence, a common law tort.I have never heard of any case law which says that a risk assessment must be carried out for any task.

Even so whenever a claim is made the claimant’s lawyers always seem to mention risk assessments, as they know this will cause defendants to panic, and give in more easily. Somebody slips on the floor and they ask if there is a risk assessment for walking along the corridor-that sort of thing. This would not pass even under the old law as they would have to prove that the lack of the risk assessment was the cause of the injury.

There is also this misunderstanding of what the Woof reforms actually mean- people seem to think that if you do not supply all of the paper work requested by the claimant’s lawyers that you will automatically lose the case. That is just not true, the case will proceed as normal but any delay will be taken into account when legal costs are awarded and if either side draws out proceedings unnecessarily, costs (and especially the interest on the costs) are more likely to be awarded against them.

I will now wait for various objects to be thrown in my direction but I think I am right and there is no 
requirement in common law to create  risk assessmentss  
thanks 3 users thanked A Kurdziel for this useful post.
chris42 on 10/04/2019(UTC), Connor35037 on 10/04/2019(UTC), Dave5705 on 11/04/2019(UTC)
westonphil  
#14 Posted : 10 April 2019 19:12:41(UTC)
Rank: Super forum user
westonphil

Originally Posted by: chris42 Go to Quoted Post

For a topic of debate, I have been pondering this on and off for a while (prompted by a question someone put in the Members forum).

The Management regulations require you to assess significant risks and if more than 5 employees, record the significant findings. It does not say you have to record the risk assessment, just the significant findings. So, if you were to do a risk assessment in your head and then write a working procedure of how to do something and it be in a safe way with regard to the significant findings of such an assessment (but not specifically highlighting them as significant findings), have you fulfilled your duty to the letter of the law?

I am considering a working procedure / safe working procedure is a set of instructions which will be more than just the safety aspects, but include the safety aspects.

Or do you feel that you physically need a record of the actual raw assessment for a given task.

Chris

Consider the requirements of Regulation 10.

Consider why you are writing a 'safe working procedure' and where that sits in the typical list of prevention measures and what that means. 

Regards.

Dave5705  
#15 Posted : 11 April 2019 07:32:58(UTC)
Rank: Super forum user
Dave5705

Originally Posted by: A Kurdziel Go to Quoted Post
I will now wait for various objects to be thrown in my direction but I think I am right and there is no

That is what I was taught. Though sometimes it gets close... Court of Appeal on

Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 (10 February 2016) (though in Scotland)

The importance of a suitable and sufficient risk assessment was explained by the Court of Appeal in the case of Allison v London Underground Ltd [2008] EWCA Civ 71[2008] ICR 719. Smith LJ observed at para 58 that insufficient judicial attention had been given to risk assessments in the years since the duty to conduct them was first introduced. She suggested that that was because judges recognised that a failure to carry out a sufficient and suitable risk assessment was never the direct cause of an injury: the inadequacy of a risk assessment could only ever be an indirect cause. Judicial decisions had tended to focus on the breach of duty which led directly to the injury. But to focus on the adequacy of the precautions actually taken without first considering the adequacy of the risk assessment was, she suggested, putting the cart before the horse. Risk assessments were meant to be an exercise by which the employer examined and evaluated all the risks entailed in his operations and took steps to remove or minimise those risks. They should, she said, be a blueprint for action. She added at para 59, cited by the Lord Ordinary in the present case, that the most logical way to approach a question as to the adequacy of the precautions taken by an employer was through a consideration of the suitability and sufficiency of the risk assessment. We respectfully agree.

chris42  
#16 Posted : 11 April 2019 08:40:34(UTC)
Rank: Super forum user
chris42

So, I guess the question boils down to, following the previous posts and the scenario in my post at #12 regarding Ford supplying safe working procedures for core vehicle maintenance tasks which are not location specific. Would you if working for the Ford franchise and not having access to all the risk assessments that produced the SWP’s, sit down and write several thousand risk assessments to cover all models and variants for all core tasks?

Obviously, you have to do the peripheral tasks which are location specific, but would you do the core ones? Yes or No

Chris

Roundtuit  
#17 Posted : 11 April 2019 09:04:02(UTC)
Rank: Super forum user
Roundtuit

Back to the motor franchise - new position?

There are common items in vehicles and ergo common risks so for example:

any work on the wiring regradless of manufacturer or model would identify the potential for an electrical shock and the control could be to disconnect the battery at its wiring terminals (possibly discharge the HV pot).

any work on the fuel system regradless of manufacturer or model would identify the potential for pressurised flammable liquids and the control could be to disconnect potential source of ignition (the battery) and allow the engine to cool before conducting any works (given the opportunity for contact burns a sensible strategy for any engine bay/exhaust work).

any work on the climate control / air conditioning wet systems would identify a pressurised refrigerant so the first control may be to discharge the pressure to an extraction system or suitable venting system.

Don't need the same document replicated for every manufacturer and every model they have ever produced.

However you may need to factor in age specific items e.g. a classic car may still have its original asbestos brake pads and gasket seals.

MrBrightside  
#18 Posted : 11 April 2019 10:00:49(UTC)
Rank: Forum user
MrBrightside

https://www.shponline.co.uk/in-court/risk-assessment-missed-forklift-danger/

'The HSE’s investigation found there was inadequate segregation of forklift trucks and pedestrians within the workspace. A risk assessment had been carried out but had not highlighted the importance of marking segregation areas'

'After the hearing, HSE Inspector Jane Carroll said: “Those in control of work have a responsibility to provide safe methods of working and a safe working environment. If a suitable system of work had been in place the injuries sustained by this employee could have been prevented.”

Mid Cheshire Pallets Ltd of Leslie Road, Woodford Park Industrial Estate, Winsford pleaded guilty to breaching Section 2 (1) and Section 3 (1) of the Health and Safety at Work etc. Act 1974 and was fined £6,500 with costs of £7,362.58

Where does this sit with the above conversations? I'm not that fantastic on the Law side of it all so always willing to learn more and how it all fits.

jdc1975@hotmail.co.uk  
#19 Posted : 11 April 2019 10:11:20(UTC)
Rank: Forum user
jdc1975@hotmail.co.uk

Fascinating topic and conversation.

Totally worth the time to read this.

Thanks for all your contributions. I have nothing significant to add.

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JohnW on 16/04/2019(UTC)
CptBeaky  
#20 Posted : 11 April 2019 10:22:34(UTC)
Rank: Forum user
CptBeaky

I look at a lot of machinery where I work. My issue with having a RA as well as the the SOP relates more to maintenance. For example, when reviewing a risk assessment I revisit the machines. I may notice that a guard needs replacing, or a modification needs to be made to the machine. Using my RA I can easily add to the actions needed and sign it off when it is completed.

If I only had an SOP I would still need a separate form to prove that we have being taking and completing actions. Whilst I understand this is a personal thing, relating to how I combine PUWER and RAs. But personally yes we require RA in my company.

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JohnW on 16/04/2019(UTC)
stevedm  
#21 Posted : 11 April 2019 10:46:32(UTC)
Rank: Super forum user
stevedm

Originally Posted by: chris42 Go to Quoted Post

So, I guess the question boils down to, following the previous posts and the scenario in my post at #12 regarding Ford supplying safe working procedures for core vehicle maintenance tasks which are not location specific. Would you if working for the Ford franchise and not having access to all the risk assessments that produced the SWP’s, sit down and write several thousand risk assessments to cover all models and variants for all core tasks?

Obviously, you have to do the peripheral tasks which are location specific, but would you do the core ones? Yes or No

Chris

Did a similar exercise for 3000 customer delivery points/ types of delivery and vehicle.  The risk assessments where not site specific but specific for the type of delivery/ vehicle and localised when the facility or installation was different to that assumed in the assessment. So no only when there are differences. I should also mention that the risk assessment process itself was born from a prosecution...single fatality... not on my watch fortunately...but sad nonetheless..

A Kurdziel  
#22 Posted : 11 April 2019 11:08:40(UTC)
Rank: Super forum user
A Kurdziel

Dave

Yes new one to me Obiter dictum- a comment but not actually legally binding-yet. Modern judges would be very unwilling to make risk assessment a common law requirement in negligence cases but they might in future.

 Thank You Mr Brightside

We are talking about civil law requirements based on negligence. In every claim for negligence that I have seen the paper work always mentions risk assessment even though there is no specific requirement in civil law for such a thing. In the current climate, I doubt this would ever come about but I have been surprised before.

There is nothing to stop anybody creating their own risk assessment policy and insisting that they are documented; in fact I can see the advantages in a larger more complex business but legally as far as the criminal law goes, all you need is a record of the findings which can go into the Method Statement (hence RAMS) and nothing in particular is required  for the civil law side.

 

Dave5705  
#23 Posted : 11 April 2019 15:20:23(UTC)
Rank: Super forum user
Dave5705

Originally Posted by: chris42 Go to Quoted Post
So, I guess the question boils down to, following the previous posts and the scenario in my post at #12 regarding Ford supplying safe working procedures for core vehicle maintenance tasks which are not location specific. Would you if working for the Ford franchise and not having access to all the risk assessments that produced the SWP’s, sit down and write several thousand risk assessments to cover all models and variants for all core tasks?

Personally, and in my humble opinion, I would think not. I agree with Roudtuit, there are controls you should put in place that are general to working on vehicles, but presumably, the technicians are Ford trained and accredited, attend regular updates when things change or new vehicles are introduced and have schemes of work to follow (instructions) which have been developed by Ford Motor Co for Ford trained technicians to follow. (I assume you can get all those because you are a Ford franchise)

I cannot imagine it is reasonably practicable for every franchise to recreate an entire set of RA's for every task outlined in the Ford-provided Schemes of Work. They would be vehicle specific and should be provided in SOW by Ford, all you need to cover is the site-specific risks (one being to ensure the technician has done the course for that particular task on that particular vehicle) or anything that differs from the Ford manuals.

What does anyone else think?

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chris42 on 12/04/2019(UTC)
Dave5705  
#24 Posted : 11 April 2019 15:24:19(UTC)
Rank: Super forum user
Dave5705

Originally Posted by: A Kurdziel Go to Quoted Post
Yes new one to me Obiter dictum- a comment but not actually legally binding-yet. Modern judges would be very unwilling to make risk assessment a common law requirement in negligence cases but they might in future.

Yes, but can you feel the force? 

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A Kurdziel on 12/04/2019(UTC)
Connor35037  
#25 Posted : 11 April 2019 15:32:15(UTC)
Rank: Forum user
Connor35037

If you write a risk assessment for the construction of each vehicle type, then you look at them and they're all  exactly the same, that seems an inefficient approach to me.

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A Kurdziel on 12/04/2019(UTC)
chris42  
#26 Posted : 12 April 2019 08:14:33(UTC)
Rank: Super forum user
chris42

Originally Posted by: Roundtuit Go to Quoted Post

Back to the motor franchise - new position?

Haha No not in car trade and no new job, mores the pity

But similar, so topic is of direct interest to me.

As I said this is not about the location specific items but the core items which can be very different.

Ie A friends car was a Peugeot 206 ( I think) and he was saying that to change the headlight bulb on one side you just opened the bonnet to access the back of the light unit, but on the other side you had to take the bumper off to get at it ( so jack up car and put axle stands under for safety).

My own car (a Ford) to get to the windscreen water pump and reservoir you have to jack up the front of the car, remove the driver’s side front wheel, removed the plastic liner under the wing and there it is in front of you. Of course, the bolts that hold the reservoir in place are under a piece of plastic that can’t be taken off, just to add to the fun. So, what you may think should be a relatively easy job often requires a lot of unanticipated work (not necessarily difficult, but more)

So, no there are literally thousands of unique working procedures /instructions/ methods call you what you will. And even though some risks may come out the same you would still need to look at every model and variant (it’s a variant for a reason).

Chris

Roundtuit  
#27 Posted : 12 April 2019 10:11:45(UTC)
Rank: Super forum user
Roundtuit

If you have certain Audi's the battery holder needs to come out to change the bulbs which makes a mockery of some national regulations that mandate a vehicle must carry replacement bulbs - what is the point if the driver needs special tools / training?

Hsquared14  
#28 Posted : 12 April 2019 10:35:12(UTC)
Rank: Super forum user
Hsquared14

Originally Posted by: A Kurdziel Go to Quoted Post

Time for provocative statement!

As far as civil proceedings are concerned there is no requirement to do risk assessments. I challenge anybody to find any binding precedent which spells out the requirement to do a risk assessment.

Prior to 2013 it might have been possible to sue an employer for Breach of Statutory Negligence if the claimant could prove that the defendant had a statutory duty to carry out a risk assessment, that they had failed to carry out such a risk assessment and that the injury that the claimant suffered was as a result of that failure to carry out the risk assessment. Quite a big ask.

Since 2013 due to Section 69 of Enterprise and Regulatory Reform Act 2013, it is no longer possible to sue for Breach of Statutory Negligence in connection with Health and Safety laws.

This means that the only avenue open for someone taking a claim against the employer is to sue for negligence, a common law tort.I have never heard of any case law which says that a risk assessment must be carried out for any task.

Even so whenever a claim is made the claimant’s lawyers always seem to mention risk assessments, as they know this will cause defendants to panic, and give in more easily. Somebody slips on the floor and they ask if there is a risk assessment for walking along the corridor-that sort of thing. This would not pass even under the old law as they would have to prove that the lack of the risk assessment was the cause of the injury.

There is also this misunderstanding of what the Woof reforms actually mean- people seem to think that if you do not supply all of the paper work requested by the claimant’s lawyers that you will automatically lose the case. That is just not true, the case will proceed as normal but any delay will be taken into account when legal costs are awarded and if either side draws out proceedings unnecessarily, costs (and especially the interest on the costs) are more likely to be awarded against them.

I will now wait for various objects to be thrown in my direction but I think I am right and there is no 
requirement in common law to create  risk assessmentss  

Technically right and right in terms of what the law says but my experience of working in insurance and looking at claims, post claim surveys and pre-claim surveys is that without having risk assessments in place an insurance company is much less likely to attempt to defend a case.  It comes down to real world practicality.  I can claim I did a risk assessment of every breath I have every taken but without anything written down there is no evidence and no proof.  This is the black hole / circular argument we are always going to have on these issues.  So my advice would always be "always write it down and never throw it away!"

MrBrightside  
#29 Posted : 12 April 2019 10:38:22(UTC)
Rank: Forum user
MrBrightside

In the Bus industry we just carried out general risk assessments ie. Working under vehicles, working in pits, changing batteries (they were a tad heavy), hot works, working at height (double deckers) etc. We only carried out a risk assessment if there was a unique or specific risk such as working on Hybrid Vehicles.

As the engineers carrying out the work are trained and competent and are given technical training, which covers safety. There was no need to risk assess every part they changed as the risks and controls would be pretty much the same. 

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Connor35037 on 12/04/2019(UTC)
bxuxa  
#30 Posted : 14 April 2019 23:27:52(UTC)
Rank: Forum user
bxuxa

“Make a record of your significant findings - the hazards, how people might be harmed by them and what you have in place to control the risks. Any record produced should be simple and focused on controls."

and as already said:

Regulation 10...

Every Employer shall provide his employees with comprehensible and relevant information on—

(a)the risks to their health and safety identified by the assessment;

(b)the preventive and protective measures;

...

Why are you trying to make things more difficult for yourself?

Otherwise, you only are supplying good practices.

thanks 1 user thanked bxuxa for this useful post.
JohnW on 16/04/2019(UTC)
chris42  
#31 Posted : 16 April 2019 10:46:36(UTC)
Rank: Super forum user
chris42

Thank you all for joining in with the discussion.

I have re-read everyone’s input and it is quite interesting the different viewpoints. I think on the whole everyone agrees technically there is no need for a piece of paper / other document form that has the words RISK ASSESSMENT on top. That is providing that the SOP/ SWP/ Instruction is clear and contains the controls with respect to the risk identified. These risks may be identified by a third party ie new equipment with explicit instructions or a working method supplied to a franchise as they way it is to be done, with training to suit.

A lot of the discussion was about proving you have done an assessment, and I agree in places the HSE seem to be in conflict. They want you to focus on the controls and not overly producing paperwork and what paperwork you do produce is useful to communicate the safe way of working to an employee. However, when they arrive on site, they will ask to see Risk Assessments, due to expectation. This may not be a problem if your management system explains the thought process and how safety is achieved and can be demonstrated ( i.e. In the assessment there is a risk from work at height, and that is reflected in the SWP by insisting on the use tied off ladders for short duration work and provision of inspected ladders, with training to use).

The question about Civil claims, is interesting as pointed out insurance companies and claims solicitors will ask for a risk assessment. But that can of course be supplied as a general assessment plus SWP covering the injury risk (hopefully). The way I see this is whether or not you record the RA process or go straight to SWP, if you didn’t consider a particular risk, it will not show up in either document. Again, technically there is no need for a Risk assessment as the claim has to prove negligence now, not just lack of statutory duty.

I think in the scenario I mentioned in #12 about ford, the logic noted in Dave’s post at #23 is exactly what I was thinking. A supplied working method / instruction that includes all safety requirements for a particular task provided by the large team of people Ford will have to assess risk. This is then adopted by the franchise with specific Ford training on the tasks. There is then only need for the peripheral tasks and general location / equipment to have specific RA’s, which come together to form a whole.

All very interesting comments from both sides of the debate, thank you all for taking the time and joining in. It does have relevance for me (though I am not in the car industry, I understand how it works) and has strengthened what I had been thinking and working towards. It also helped put a bit more form on it, as you have to imagine what the whole thing will finally look like. I hope others found it insightful also.

Chris

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