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Kaza015  
#1 Posted : 24 September 2021 14:16:46(UTC)
Rank: New forum user
Kaza015

Good afternoon all;

I've been a follower of this forum for some time, but only signed up to contribute/pester!

One of my clients has drawn my attention to the below consultation on amendments to the PPE Regs (although it's now closed) - how I missed this the first time, I don't know. 

https://consultations.hse.gov.uk/hse/cd289-amends-ppe-work-regs-1992/ 

They have a number of casual employees who work for them as and when needed and appear to be captured by these amendments, although they do provide their PPE for them anyway. 

Did others know about these proposals, or am I just late to the party?

peter gotch  
#2 Posted : 24 September 2021 15:31:09(UTC)
Rank: Super forum user
peter gotch

Thanks Kaza - welcome and contribute/pester away.

I think in simple terms this amendment is aimed at catching the zero hours contracts employers who repeatedly argue they are not employers.

In practice the amended Regulations have probably been largely overtaken by legal judgments which these employers keep losing (though some law firms have done very nicely).

chris.packham  
#3 Posted : 24 September 2021 21:42:45(UTC)
Rank: Super forum user
chris.packham

I sometimes wonder if we have lost sight of the original Health and Safety at Work etc. Act 1974.

In section 1 we find the following wording:

(l) The provisions of this Part shall have effect with a view to-

(a) securing the health, safety and welfare of persons at work;

(b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work;

This suggests to me that the duty is to protect the health safety at work of anyone due to what is happening in that workplace, whether employee, contractor, visitor or merely someone passing by or living in the vicinity who might be affected by what we are doing. Or am I missing something?

Kate  
#4 Posted : 25 September 2021 07:40:06(UTC)
Rank: Super forum user
Kate

That is true enough, Chris, but there are two ways of achieving this when it comes to PPE.

1. "Here's your PPE which we've provided for you free of charge."

2. "You haven't brought your PPE and you're not going to work for us without it, so go home and don't get paid."

chris.packham  
#5 Posted : 25 September 2021 11:31:15(UTC)
Rank: Super forum user
chris.packham

True enough, Kate, but I suggest you would have to ensure that the PPE is appropriate for managing the exposure to the hazard.

peter gotch  
#6 Posted : 25 September 2021 14:41:48(UTC)
Rank: Super forum user
peter gotch

Chris

I am NOT an advocate of deregulation of health and safety BUT we could use Brexit as an excuse to get rid of almost all health and safety regulations in the UK.

Most are only there as successive UK Governments decided that the easiest way to transpose EC Directives without "gold plating" the requirements was by writing regulations so as to "copy out" requirements of the Directives.

But as you point out it's generally all there in the Health and Safety at Work etc Act 1974 as implemented in GB and by a legal nicety in Northern Ireland [noting also that the Republic of Ireland then also enacted virtually identical legislation, though putting Safety before Health in line with the mainland European norm].

So, we take HSWA - Section 2(1) of the Act sets out the general duty of an employer towards their employee(s), and Section 3(1) the duty of an employer to others in essentially the same words. The only real difference is that Section 2 also has a Section 2(2) in five parts which provides examples of the general duty under Section 2(1).

By inference you could apply exactly the same examples to Section 3(1).

It would be quite easy to back up Sections 2(1) and 3(1) with an Approved Code of Practice telling employers that they have to provide their workers [of whatever employment status] with suitable PPE + all the adminstrative things that go with it - training etc.

None of this actually required Brexit but it might be sold as a "benefit" of going it alone. Complete nonsense, but every Govt likes good spin.

One of the downsides of the copy out approach [in my opinion] was that it led to multiple statutory requirements for risk assessments when none was needed. How could a duty holder possibly convince themselves or anyone else [including the regulator] that they had done all that was reasonably practicable to remove or mitigate the risks arising from the conduct of their business without doing a risk assessment?

Nobody suddenly invented the concept of risk assessment merely because it was in the requirements of successive EU Directives, transposed via COSHH 1988, Noise at Work Regulations 1989, Management of Health and Safety at Work Regulations 1992 amongst other codes of regulations - all driven by the generally consistent wording within Directives.

Instead doing risk assessment was a natural output of a legislative regime in which prescriptive and proscriptive measures were being progressively ditched in favour of the goal setting requirements of HSWA, whilst at the same time maintaining the standards demanded by prior legislation as required by Section 1(2) of HSWA.

So we kept the benefits of those DOs and DON'Ts whilst also plugging all the gaps. Even allowed for risks to be controlled by application of the "precautionary principle" BEFORE people started getting injured or ill as a result of the introduction of new technology, materials etc.

Thence as example, standards were set to control exposure to Man Made Mineral Fibres BEFORE people had died from long term lung diseases as a result of exposure to MMMFs.

Kate  
#7 Posted : 25 September 2021 15:56:58(UTC)
Rank: Super forum user
Kate

I have a hazy memory (this was a long time ago) that COSHH regs originated in the UK and were then taken up in the EU, instead of the other way around as for most H&S directives / regs- is that not correct?

peter gotch  
#8 Posted : 26 September 2021 13:03:13(UTC)
Rank: Super forum user
peter gotch

Hi Kate

I confess that my memory is hazy on this.

However, I do remember finding myself accompanying the Minister responsible for health and safety at work on a factory visit to look at noise issues.

Just at the time when there was lots of debate about the first EC Directive on noise at work and employers and worker representatives were arguing about where the thesholds should be set as to the "First Action Level" and the "Second Action Level". 

There was also going to be a "Peak Action Level" but its threshold seemed less controversial.

So, at the end of the visit there was a wash up session and the employer was arguing for a higher "First Action Level" - when I was asked to comment I pointed out that there were very few parts of this particular operation where the measures taken didn't already mean that exposure was below the First Action Level being proposed (and eventually adopted) - 8 hour time weighted exposure aka LEP,d of 85dB(A). 

[Note - that First Action Level has, of course, since been reduced]

So, whatever the position with the origins of COSHH, EC influence on requiring formal risk assessments predated the "Framework Directive" adopted in 1989.

A Kurdziel  
#9 Posted : 27 September 2021 09:40:40(UTC)
Rank: Super forum user
A Kurdziel

You read the  Robens Report, which is what the Health and Safety at Work Act is based on, you realise, by reading between the lines, that he was trying to get away a simple rules approach to H&S adopting something which we know call risk assessment. Certain H&S professionals had already adopted this approach in their sectors. Robens also hoped that each industry sector would draft their own Approved Code of Practice which would be the basis of H&S management in that sector. 

Regulations would be used to tweak the Act, not create in depth regulations. If you look at the dates of the regs, there isn’t much regulation created between 1975 ( when the Act came into force) and 1990 when the Community (precursor to the European Union) began to get involved. The EC decided to get involved in H&S to create a level laying field and they introduced the  H&S Framework Directive, which set out a number of principles that countries had to follow. These  included: 

•             Employer is responsible for the H&S of employees

•             Employer has vicarious responsibility for fellow employee

•             Information, training and supervision of employees is the employer’s responsibility

•             Employers should use risk assessment to manage H&S in the workplace

 The Health and Safety at Work Act already covered all of that apart for the explicit requirement to do risk assessments.  To ensure that was covered the UK adopted the  Management of Health and Safety at Work Regulations. Then the Commission started drafting directives covering all of the possible hazards. The UK government was not keen on this approach, arguing it was for employers to identify the hazards, but  they accepted the directives starting with The Chemical Agents and Biological Agents Directives, which we adopted as COSHH (single set of regulations) others then followed but as has been pointed out many time they all said basically the same thing:

  • Identify the hazard
  • Quantify the hazard
  • Assess the risk that the hazard poses and record the findings
  • apply the hierarchy of controls to adopt the optimum control
  • Supervise the staff so that they follow the controls
  • Train them so they understand the controls
  • Maintain the controls

 

IMHO, the  ‘gold plating’ often takes place at the employer’s end.  Firstly they get obsessed with the idea of publishing risk assessments.  There is no legal requirement to do this; they should record the findings. During the covid outbreak the government insisted that employers publish their so called ‘covid risk assessments’ , which was not a legal requirement and just created loads of work for no real benefit.

Because  the requirement to assess risk is described  in  several sets of regulations employers decide to create separate documents for each and every type of risk assessment. So a cleaning firm will have one risk assessment for manual handling, one for COSHH,   and one for slips trips and falls. Of course they only need one record of the findings and these should them be made into some sort of work instructions for the employees.  The HSE are not interested in pages of risk assessments, they want to know,  is what people actually do, things like training etc.

The final issue is the obsession with templates and table to calculate ‘risk’.  This is again a waste of effort.

We don’t need to get rid of the regs, just apply them correctly. If it was ever suggested that we get rid of the regs, we would not be left with a more streamlined system, the aim would be to get rid of the system all together so that post Brexit Britain could compete on a level playing field with the likes of Vietnam and Bangladesh.

thanks 2 users thanked A Kurdziel for this useful post.
pseudonym on 27/09/2021(UTC), Kate on 27/09/2021(UTC)
peter gotch  
#10 Posted : 27 September 2021 10:47:31(UTC)
Rank: Super forum user
peter gotch

Thanks AK - so the original Chemicals, Physical and Biological Agents Directive dating back to 1980.

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31980L1107&from=EN

Interesting that the Directive specifically uses the words "reasonably practicable" showing how much the UK was influencing what was happening across the EU before starting to push back at "excessive regulation" where the UK had to accept the Display Screen Equipment Directive kicking and fighting but as a minority in a Directive adopted via "Qualified Majority Voting" 

Agreed that leaving all these regulations intact does no harm if employers etc treat them as a group and usually consider the risks as a package.

However, sweeping them away should not really result in a level playing field at the bottom UNLESS Section 1(2) of HSWA were to be repealed. To save some looking it up it's the bit in the Act which envisaged prior legislation being progressive replaced but so as to maintain or improve on the standards previously achieved.

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