Understanding Risk Management and Control

Health and Safety at Work etc Act 1974 (HSWA 1974)

Employers have a legal duty under the HSWA 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees [HSWA 1974 s2(1)]

This places a statutory duty on employers, besides their common law duty of care, to ‘everything reasonable and practicable’ to minimise the risk of harm from hazards to health in their working environment.

“Where violent incidents are forseeable employers have a duty under section 2 to identify the nature and extent of the risk and to devise measures which provide a safe workplace and a system of work”

Lord Skelmersdale

DHSS Advisory Committee on Violence to Staff

“Reasonably Practicable”

The meaning of this phrase is key to the interpretation of HSWA 1974.

When considering management of health and safety, any risk must be balanced against the resources needed, whether in time, money or effort needed to mitigate that risk or avoid it. By balancing the risk versus the resources required, the employer can decide what steps are reasonable to take.    The need for this balancing to be carried out implies the need for risk assessment.

“Reasonably Practicable is a narrower term than physically possible and seems to me to imply that a computation must be made by the employer in which the quantum of risk is placed on one scale and the sacrifice invlved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them.  Moreover, this computation falls to be made by the employer at a point of time anterior to the accident”

Lord Asquith Edwards v NCB [1949]

Duties to Others

Employers, under section 3 of the Act, are required to conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, the safety of other people who are not their employees.

The Act was created to cover the risks of industrial workplaces, although the basic principles are easily applied to services-based workplaces, for example.   Indeed, with the recent decision by the Health and Safety Executive (HSE) to prosecute the employer of Ashleigh Ewing, Mental Health Matters, under Section 2 of the HSWA 1974, we can see the direct relevance of this act to the management of the risks of violence at work.

Employees Duties

Under section 7 of HSWA 1974, employees are required to take reasonable care for themselves and the people around them who may be affected by the things they do, or the things they fail to do.   The test of “reasonable care” is that the employee should do what a reasonable person could be expected to do.

Management of Health and Safety Regulations 1999 (MHSWR)

Employers are compelled to consider the risks to people by these regulations.   The implied need for the assessment of risk and the putting in place of reasonably practicable control measures from HSWA 1974 was made more explicit and binding by the introduction of these regulations.

The key part of MHSWR applicable to Risk Assessment is Regulation 3 (1):

1. 1. 1Every employer shall make a suitable and sufficient assessment of -
      

   1. aThe risks to the health and safety of his employees to which they are exposed whilst they are at work; and
      

   2. bThe risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.
      

2. So, employers must:
   

3. •Establish how significant any risks are
   

4. •Identify what can be done to prevent or control the risks
   

5. •Create management plans to achieve risk prevention and control
   

In doing this, the employer should make sure that any instructions given to employees are clear and unambiguous.  Employees should be trained and competent to carry out their role, and to a level which adequately considers the levels of risk to which they may be exposed.

The employees should be supervised competently, and should be advised to avoid practices which are unsafe.   This includes being made aware of procedures for dealing with ‘serious and imminent danger’ and for entering dangerous areas [Section 8 (2)].

The regulations also make it clear that employees must be authorised to stop work and withdraw from circumstances where it would be unsafe to continue or stay.   They may also be prevented from resuming work where that serious or imminent danger persists.

Finally, there is an obligation to monitor staff for signs or symptoms of harm they may be sustaining through their work.   This may include stress or trauma suffered through incidents of aggression or violence which the person is involved in at the workplace.

With the clear direction imposed by these regulations, employers whose workplaces have risks of violence or aggression to staff are compelled to assess those risks, document the assessment process and its outcomes, create a policy and relevant procedures which detail risk-control measures which can include a wide variety of actions, including staff training.

This has clear implications for employers whose staff work alone and who may face violence and aggression in their work.