Posted By Darren J Fraser
This covers the legal
THE CONSTRUCTION (HEAD PROTECTION) REGULATIONS 1989
INTRODUCTION
1 This circular gives details of the Construction (Head Protection) Regulations 1989 which came into force on 30 March 1990, and have since been modified by the Personal Protective Equipment at Work Regulations 1992. The regulations and guidance on them are in the HSE publication "Construction (Head Protection) Regulations - Guidance on Regulations" revised (ISBN 0-7176-1478-6, HSE Books, price £5.50).
BACKGROUND
2 The regulations have a simple objective - everyone, except turban wearing Sikhs (see paragraphs 20-22), working in the construction industry should wear suitable head protection whenever there is a risk of injury to the head from failing objects or hitting the head against something. To achieve this objective, the regulations place duties on employers, on persons in control of others, on individual employees and on self-employed persons.
3 The primary duty under the regulations is on employers and persons in control of others to ensure head protection is worn. Only when enforcement officers are completely satisfied that this responsibility has been discharged should they consider proceeding against individual employees or self-employed persons for failure to wear head protection.
REGULATION 1 - CITATION, COMMENCEMENT AND INTERPRETATION
Suitable head protection
4 Suitable head protection is defined by reference to 3 criteria:
(i) protection against risk of injury to the head;
(ii) fit after any necessary adjustment; and
(iii) suitability for the work or activity carried out by the wearer.
In most cases suitable head protection will mean an industrial safety helmet conforming to British Standard BS EN 397 or equivalent standard. While working in in areas with particularly limited space, bump caps to BS 4033 (to be replaced by BS EN 812) or an equivalent standard may be appropriate. Any new head protection bought should be CE-marked to indicate that it complies with the Personal Protective Equipment (EC Directive) Regulations 1992. Employers and self-employed people can continue to use head protection without a CE-mark that was legally supplied to them before the PPE (EC Directive) Regulations came into force. No automatic exception should be taken to non British Standard, head protection as long as the 3 criteria above are met.
REGULATION 2 - APPLICATION OF THE REGULATIONS
Building operations and works of engineering construction
5 The regulations apply to building operations and works of engineering construction, as defined in the Factories Act 1961. However, the Construction (Health, Safety and Welfare) Regulations 1996 (CHSW) modified definition in the Factories Act so that the regulations now apply to "construction work" as defined in the Construction (Design and Management) Regulations 1994 (CDM) and CHSW Regulations.
REGULATION 3 - PROVISION, MAINTENANCE AND REPLACEMENT OF SUITABLE HEAD PROTECTION
Level of provision
6 Every employee who is at work on operations or works to which the regulations apply, must be provided with head protection by their employer regardless of whether they will exposed to a risk of head injury. "Provide" does not necessarily mean that the head protection must be given directly to the employee, but it must at least be readily available.
7 Self-employed persons must provide themselves with head protection in exactly the same circumstances.
Provision for visitors to a site
8 Other people who visit a site as a part of their job and are at work on operations or works to which the regulations apply, will require head protection to be provided by their employers eg surveyors, architects etc.
9 The regulations do not require head protection to be provided to people not undertaking construction work, for example, people delivering goods to a site or prospective house purchasers. However, in order to comply with general duties under section 3 of the Health and Safety at Work etc Act 1974, employers and self-employed people engaged in construction work should require visitors to wear suitable head protection if there is a foreseeable risk of head injury.
REGULATION 4 - ENSURING SUITABLE HEAD PROTECTION IS WORN
Duties on employers and those in control
10 Employers and those in control of others have a duty to ensure so far as is reasonably practicable that head protection is worn unless there is no foreseeable risk of injury to the head other than a fall. In any legal proceedings it will be for the defence to establish that there was no risk of injury to the head. This is a general rule in relation to the onus of proving exceptions (see Stone's Justices' Manual 1990 1-733).
11 It may be argued that certain categories of workers such as steel erectors or scaffolders work in such a way or at such heights that they need not wear helmets. However, in nearly every case they work underneath one another or under a crane and will therefore be required to wear head protection because of the risk of failing objects.
12 The duty to ensure head protection is worn does not apply when the only risk of head injury is due to a fall because current designs of head protection give little or no protection against such a risk.
REGULATION 5 - RULES AND DIRECTIONS
Making of rules by the person in control
13 If the person in control of a site exercises the rule making provision, those rules apply to everyone on that site who is at work on operations or works to which the regulations apply, regardless of the employment relationship. Such rules must be in writing and must be brought to the attention of those affected. Where the CDM regulations apply, any rules on head protection wear should be included in the construction phase health and safety plan.
Giving Directions
14 Regulations 5(3) and 5(4) allow, respectively, employers to give directions to their employees, and those in control of self-employed persons to give directions to those persons, in pursuit of compliance with reg 4. The purpose of this distinction is to preserve the employer/employee relationship: the employer can only give directions under the regulations to his/her own employees,
15 Para 21 of Schedule 3 of the HSW Act provides that regulations may confer power on employers or other persons to make rules or give directions with respect to matters affecting health and safety. The offences created by reg 6 are worded to reflect this (see below.)
16 While a person in control of a site cannot give the directions to employees of another, they may have the power (by contract or otherwise) to ban these employees from a site for failure to wear head protection, so ensuring they do not fail to meet their duty under reg 4(2). Alternatively, the person in control of the site can make rules so that there are no misunderstandings as to when head protection should be worn.
REGULATION 6 - DUTIES OF EMPLOYEES AND SELF-EMPLOYED PERSONS
Duty to follow rules or directions
17 Regulations 6(1) and 6(2) require employees and self-employed persons to wear suitable head protection when required to do so by rules made, or directions given, under reg 5. In the absence of rules or directions there is no requirement under the regulations for employees or self-employed persons working under the control of another person to wear head protection.
18 Enforcement officers will find rules made which specify the whole site as a "hard hat area". Such rules will avoid difficult demarcation problems but it is considered that in places where there is in fact no risk of injury to the head other than by falling such rules cannot create a duty under reg 6.
Self-employed persons not working under the control of another person
19 Self-employed persons working on their own, ie not under the control of another person, must wear head protection unless there is no foreseeable risk of injury to the head other than by falling (reg 6(3).)
THE EMPLOYMENT ACT 1989 - SIKHS AND HEAD PROTECTION
20 Section 11(1) of the Act exempts a follower of the Sikh religion from any legal requirement to wear a safety helmet while on a construction site ("any place where building operations or works of engineering construction are being undertaken"), provided that he is wearing a turban. Accordingly, turban-wearing Sikhs do not have to comply with any duty under reg 6 to wear head protection on construction sites (nor with the general duty under HSW Act s.7 in the same respects.)
21 Section 11(2) of the Act also exempts Sikhs and any other persons from any legal requirements connected with the wearing, provision or maintenance of safety helmets in relation to Sikhs on construction sites. Hence, employers and other persons in control of workers are relieved of their duties to a Sikh under regs 3, 4 and 5 provided that the Sikh is wearing a turban. In the same way, they are exempted from like duties under HSW Act ss.2, 3 and 4
22 Section 11(4) and 11(6) sets out the civil liability position when the above exemptions are in operation, and Section 12 protects Sikhs from racial discrimination in connection with requirements to wear safety helmets. These aspects of the Act are dealt with by the Department for Education and Employment, not HSE
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However it may be possible for a Sikh to wear a hard hat if they are prepared to wear a Pakta in place of their traditional Turban, this cannot be forced, but I have found that by explaining what you wish to achieve and asking for their comments (positive and negative), and listening to what they have to say you can reach a mutually satisfactory agreement.
Also means that their cultural beliefs are still respected.
Regards
Darren