Posted By R Joe
Not so long ago I recall that HSE was, on a number of occasions, concerned to stress that not all HSE guidance was compulsory, as they felt that this appeared to be a commonly held - and sometimes deliberately propagated - misconception.

The now published Corporate Manslaughter and Corporate Homicide Bill includes the jury ‘having regard to ANY health and safety guidance that relates to the alleged breach’. Moreover, “health and safety guidance” means any code, guidance, manual or similar publication that is concerned with health and safety matters and is made or issued (under a statutory provision or otherwise) by an authority responsible for the enforcement of any health and safety legislation.

Bearing in mind that jurors will be members of the public, does this, in effect, make all HSE guidance compulsory, and where does it leave the status of ACoPs?

As a further thought, if an LA as ‘an authority responsible for…enforcement’, issues its own (well meaning but possibly inaccurate and/or badly worded) local 'guidance' which is not implemented.........

You can tell it’s Friday afternoon!

Regards RJ

Posted By Adrian Watson
No, but the guiodance would act as the standard expected of a reasonable employer.

Regards Adrian Watson

Posted By Chris Packham
So what do you do when the guidance from HSE is technically incorrect?

For example, the ACoP for COSHH defines a substance hazardous to health in several ways, including depending upon its chemical or toxicological properties and the way it is used or is present at the workplace. This is correct. Water would not normally be considered hazardous, but repeated, extended exposure to water (wet work) is an extremely common cause of occupational irritant contact dermatitis.

However, elsewhere in the ACoP HSE suggests that you can conduct a risk assessment based on risk phrases. News to me that water has a risk phrase. Certainly in my field (skin) it is possible for an employer to follow the guidance, conclude that there is no risk, then find their organisation faced with significant occupational skin problems.

Who would then be responsible for the compensation etc.?

Incidentally, this is not an isolated case. For example, I can argue that the HSE guidance on natural rubber latex does not correspond with the scientific facts and that, if correctly selected and used, any risk is minimal.

Chris

Posted By Adrian Watson
Chris,

Possibly HSE as they would be in breach of their duty of care, & the loss would not be economic!

Regards Adrian

Posted By Jonathan Hall
All juries should be guided by the judge as to what is and is not admissable and should be considered. Any advisory documents which detail best practice could, I believe, be put forward in a court case which swung on a decision or decisions made by the defendant.

The guidance documents (ACOPs, guidance notes, industry standards, BS/ISO standards, instruction manuals, etc.) should be the ones on which an employer has made a decision to do or not to do something, or to do something in a particular way.

That doesn't necessarily make them legally binding, as the defendant is always free to give their own reasons for making a particular decision and for justifying why they felt they were behaving correctly and legally. It would then be a test of opinion of the jury whether they felt the employer should have done more, or whether they had taken every reasonable precaution and could justify the way they carried things out or made their decisions.

Posted By R Joe
Bob

What if a lay jury decides that the breach was ‘gross’ BECAUSE in their view it is a reasonable expectation that all organisations should comply with ANY H&S guidance that is published by an enforcing authority?

Does the status of the materials, in fact, remain unchanged if they ‘gain an additional ability to guide on what is the normal accepted practice’?

Regards RJ