Posted By AlB
Firstly, it is a legal requirement for every business, including self-employed persons, to carry out a risk assessment. The regulations do not differentiate between who records and who don't. The ACOP suggests that it is mandatory for those employeing 5 or more persons to record the findings, therefore, if the business (that is, the registered business, and not per site) is run by one person (the MD) then if he employs 4 people (this includes cleaners, part time employees etc) the ACOP does not state it is a requirement to record the findings. However, if the risks of the business is large (working at heights, using hazardous substances, dealing with electricity etc) then it would be incredibly difficult to prove in court that a written record was not required. According to the ACOP, the findings of the risk assessment are only required to be recorded when the owner of the business employs 5 persons or more in addition to himeself (as the owner would be the "employer" employing 5 "employees").

Hope that makes sense.

Posted By Stuart C
As i understand it Directors are employees of the company and therefore a company with 2 directors and 3 other staff member would qualify under the 5 or more rule

Posted By Robert S Woods
Adrian,

I would have read where as; in the instance of or case of, rather than as a location. When would be better but is not good English.

If where were to mean location then following this through logically an employer could employ four people at several sites.

Posted By Robert S Woods
Re:The five or more employees rule; is this employees’ of the company i.e. any one getting paid including directors? Or is it persons who are employed by the company i.e. persons other than the directors?

I was thinking more overall than specific to risk assessment.

Do you include the Directors in the head count?

Posted By Richie
Adrian,

Master of Laws... you are scaring me now. That's not the take I had on "where", but I shall give way (grudgingly...)

Richie

Posted By busbybelle
We have 2 sites just around the corner from each other...1 with 40+ employees and one with only 4....does this mean I don't need to carry out RA's for the smaller site, unless there are specific risks i.e. FLT's?

Posted By Tony Brunskill
I think some are hanging thier hats in the letter of the law rather than the spirit and intent. By way of illustration; A property management organisation employs 100 maintenance engineers and 3 admin staff in a call centre. The engineers work independently. It is my view that they would require a Safety Policy and written risk assessments. I believe the word "where" in this instance refers to a stage in a process rather than a geographical location. If you have precedent that states otherwise I would be interested to hear it. Otherwise I would fall back on the advice I received from HSE.

From HSE Web Site:

2 Section 2(3) of the HSW Act states etc

3 This requirement is limited by the Employers Health and Safety Policy Statements (Exceptions) Regulations 1975 (SI 1975 No. 1584) to exempt employers who carry on undertakings in which for the time being less than five employees work.

4 It should be noted that "undertaking" does not mean the same as "establishment". An employer could operate a number of small establishments, each employing less than five employees. If all the establishments form part of the same undertaking, and the total of employees is five or more, the employer must prepare a written health and safety policy for the whole undertaking.

Posted By J Knight
Hi Adrian,

The ACOP doesn't agree with you, it states:

23

All employers and self-employed people are required to make a risk assessment. The regulation also provides that employers with five or more employees must record the significant findings of their risk assessment. This record should represent an effective statement of hazards and risks which then leads management to take the relevant actions to protect health and safety. The record should be retrievable for use by management in reviews and for safety representatives or other employee representatives and visiting inspectors. Where appropriate, it should be linked to other health and safety records or documents such as the record of health and safety arrangements required by regulation 5 and the written health and safety policy statement required by section 2(3) of the HSW Act. It may be possible to combine these documents into one health and safety management document.

24

This record may be in writing or recorded by other means (eg electronically) as long as it is retrievable and remains retrievable even when, for example, the technology of electronic recording changes. The record will often refer to other documents and records describing procedures and safeguards.

Since it uses phrases like 'an employer with five or more employees' it seems to describe a total number, rather than those at a particular location. This is certainly the way it is interpreted by those LA H&S Inspectors who want to see a recorded RA in our shops (typically one or two employees).

It is also explicit that 'recorded' includes writing, but does not exclude other forms of record. A writen risk assessment isn't required, a recorded one is.

I know this is an ACOP, rather than the Regs, but ACOPs have always been good enough for me,

John

Posted By Adrian Watson
Tony,

The aim of the law is to safeguard health and safety not to produce paperwork.

The quote from the health and safety executive referring to the Employers Health and Safety Policy Statements (Exceptions) Regulations 1975 (SI 1975 No. 1584) is wrong. It was held in Osborne V Bill Taylor of Huyston Ltd [1982] ICR 168, DC that in determining whether there were five or more employees regard must be had only to employees present on the premises at the same time. This is not the first time the HSE ACoP is wrong. This and the wording of the wording of the regulations strongly suggest that "where" means place. Furthermore it has also been held that in interpreting criminal law, the benefit in the interpretation should be given to the citizen rather than the state.

Therefore the evidence in the round suggests that the written findings of a risk assessment as well a written health and safety policy are not needed at locations where the employer employs less than 5 people at any one time.

Regards Adrian Watson

Posted By Tony Brunskill
Hi AIB,

I may be misinterpreting your posting regarding the MHSWR 99 and the fact that they do not explicitly detail 5 employees and this information is contained in the ACoP. I think you may have missed....

Reg 3

(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.

It is late and I could be reading you point and missing it.

Regards

Tony

Posted By J Knight
Adrian,

I take your point, but on the whole I agree with the approach laid out by Tony; there seems no reason beyond perversity to argue with an approach which HSE in the ACOP intends to promote safety. I can see why an employer with temporary workplaces would perhaps need a defence for not writing everything down, but we've been in our shops for up to 30 years, and documentation is about the only means we have of controlling them. How might a judgment go if we were to stand up in Court and say that our 800 employees in Charity Shops don't get to see a written RA because we don't employ more than five people in each?

John

Posted By J Knight
Adrian,

I couldn't agree more with your sentiments! We need paperwork in our shops because they are isolated and dispersed; the written RA is there to help shop managers ensure a safe and tidy environment. It does also help dialogues with LA H& Inspectors run more smoothly, as it is always the first thing they ask for and its production is always seen in a positive light. But if I was being honest, I would have to say that for me and for the Retail H&S Adviser its always the first reason that's in our minds, which is why he has designed a semi-generic form requiring little actual writing and providing maximum clarity and usability.

Paperwork is the bane of modern business, but it has its place,

John