Journal Detail back to listing
Break Glass in case of Emergency! Regulatory Assurance, a step up from Compliance
- Aug 20, 2024
- Latest Journal
In this joint article, Senior Consultants and Expert Witnesses Tom Leach and Richard Hoyle discuss the difference between compliance and regulatory assurance and the responsibilities of owner and duty holders to ensure the suitability of equipment and safety of their employees.
We don’t like the way in which the term ‘compliance’ is often used; it carries many negative connotations and is often misunderstood, and the term is incorrectly quoted. Whilst compliance is critical in maintaining a safe work environment in line with UK legislation, from experience it can often become a tick box exercise where policy and procedures are put in a folder until that “Emergency – break glass” moment occurs.
Compliance is a legal requirement, much like a speed limit. Be honest, we have all exceeded the speed limit at some point in our driving career, even by 1 mph. We do it sometimes without thinking, other times deliberately, and hope not to get caught. The consequences should we be caught in breach of that compliance with the law is a fine, points, or much worse – a custodial sentence if, as a result of that excessive speed, someone is killed or severely injured.
How is Compliance different to Assurance?
In simple terms, being compliant means that you meet the minimum criteria or standard of a particular set of regulations or accreditation at the point of assessment. By itself, it is the most basic demonstration of a duty of care, but there are significant flaws with this. Adequate, may not always be enough.
Assurance, on the other hand, is: the continuous process of evaluating all management processes, procedures, and cultural practices that lead to compliance and demonstrate competency and currency in knowledge and
development, rather than simply meeting the goal of attaining a certificate passing an audit.
As an example, a Regulation 9(3) Thorough Examination of a crane under LOLER only brings you compliance with one part of the regulation, not the regulation in its entirety, this is commonly misunderstood by owners and duty holders.
Layman’s example
Much like your car passing an MOT, this is the minimum legal criteria required to consider your car road worthy. It goes further - Insurance companies can null and void your cover if it is found that your vehicle is not MOT’d.
Once a MOT certificate is attained, does this mean you do not have to conduct any maintenance or remedial work on your car for the next 12 months to ensure it remains “suitable”? Does this mean that the advisories are simply that, “nice to know” that require no further action until your friendly reminder from your local garage informing you that your MOT is due?
Your MOT certificate is a snapshot of the roadworthiness of the vehicle at the time of the MOT test when considering certain safety-critical aspects that are assessed, e.g. brakes, structure, tyres, steering, suspension, lighting, seatbelts etc, meeting the acceptance criteria allowing for a further 12 months of normal road usage. What if you decide not to take heed of the MOT tester’s advisory comments regarding the steering, brakes, and suspension?
On your way home from the garage (where you have just had the annual service and MOT), you hit a pothole causing damage to the wheel, suspension and steering assembly causing instability – an instant MOT failure (now not due for another 12 months). Or, what if your brake systems started to malfunction causing your brake pads to stick, resulting in excessive and uneven wear so they fail the minimum legal braking requirement? You are aware of the damage caused and the effect on the vehicle’s driving stability, but money is tight, and you continue driving the car.
Six months later, you are driving along, a child runs into the road and you apply emergency braking but inefficient brakes fail to slow the car adequately. You try and swerve to avoid collision but due to the fault in the suspension and steering, the car oversteers and crashes into a school bus stop.
You are now being interviewed under caution for causing death by dangerous driving. The police report details the faults and damage to the steering, suspension, and braking systems. Your only defence is an MOT certificate from 6 months ago and you claim that the MOT is valid for a further 6 months. Would this be considered sufficient to demonstrate you have done everything reasonably practicable to keep the vehicle safe and roadworthy?
What is your defence?
Scary stuff right?, these same principles apply to statutory work equipment, and owners and duty holders should be able to evidence that they have taken all reasonable steps to ensure the work equipment is suitable, safe, and in good working order and that a sufficient risk assessment is in place for the work activity in accordance with Regulations 3 of the Management of Health and Safety at Work Regulations 1999.
What legislation applies to work equipment in the UK?
Regulations and ACOPs are intended to assist an organisation in complying with the Health and Safety at Work Act 1974 but can also be legally binding in their own right. It is important to remember that the primary purpose of UK Health and Safety legislation is not just compliance, it is to ensure the safety of people, by ensuring the safety of people, this assists in achieving compliance with the HSWA 1974. As owners and duty holders, it is your responsibility to ensure the safety of those persons in your employment and those persons who are not in your employment, i.e. members of the public whose safety may be affected by your activities.
There are several pieces of legislation that apply to work equipment in the UK. Legislative regulations and statutory instruments are laws in the UK that must be abided by. Below are a few examples of the most common that will be relevant for most businesses. Other, more specialist regulations such as DSEAR and COMAH are relevant to dangerous and explosive atmospheres. These regulations are discussed in more detail in an article by Tristan Pulford.
The Health and Safety at Work Act 1974 (HSWA)
This is the overarching primary piece of legislation in Great Britain covering occupation health and safety. This is the dominant piece of legislation that the HSE prosecutes under most times.
The Management of Health and Safety at Work Regulations 1999 (MHSWR)
This was introduced in December 1999. Its aim was to reinforce the HSWA. The MHSWR placed a duty on the employer to identify risks that employees, contractors, and members of the public may face and steps to be taken to control and/or mitigate those risks through a formal assessment process, which is clearly documented and briefed to the concerned parties.
The Supply of Machinery Safety Regulations 2008 - SoMSR
The purpose of the legislation is to ensure safe machinery is placed on the UK market or put into service by requiring manufacturers to show how their machinery products meet the ‘Essential Health and Safety Requirements’. The equivalent document in the EU is the Machinery Directive. The SoMSR and Machinery Directive are symbiotic which demonstrates that such imports and exports to/from the EU have been produced to the necessary safety standards. The difference between them is that the SoMSR is legislation and therefore enshrined in UK law.
The Lift Regulations 2016
The 2016 Regulations provide powers to market surveillance authorities to take action to protect consumers, workers, and users from the risks associated with unsafe lifts or associated safety components. This allows those authorities to take action against economic operators that present a risk through the import/export of unsafe Lifts/components or are not in compliance with the Regulations.
The Provision and Use of Work Equipment Regulations 1998 -PUWER
PUWER places duties on people and companies who own, operate, or have control over work equipment. PUWER also places responsibilities on businesses and organisations whose employees use work equipment, whether owned by them or not. This is another common piece of legislation by which the HSE prosecutes under various regulations within it, particularly access to dangerous parts of machinery Regulation 11).
The Lifting Operations and Lifting Equipment Regulations 1998 - LOLER
LOLER place duties on people and companies who own, operate, or have control over lifting equipment. This includes all businesses and organisations whose employees use lifting equipment, whether owned by them or not. As the title states, this is not just about safe and suitable equipment it is also about how you conduct lifting/lowering operations from a small chain block in the garage to a heavy lift crane.
The Pressure Systems Safety Regulations 2000 - PSSR
PSSR covers the safe design and use of pressure systems. The aim of PSSR is to prevent serious injury from the hazard of the release of stored energy (pressure) as a result of the failure of a pressure system or one of its components. It also considers the substance type under pressure.
The Control of Substances Hazardous to Health Regulations 2002 – COSHH
COSHH requires employers to assess the risks that arise from the use of hazardous substances. This will include any arrangements to deal with accidents, incidents, or emergencies, such as those resulting from serious spillages. Currently, the HSE is pushing hard on those businesses that are at risk of exposure to Asbestos and dust created by operations (wood/MDF, brick etc).
Every employer, owner, or duty holder has a legal responsibility under each of the applicable regulations to ensure the safety of those persons in their employment, but also have a duty of care to those persons not in their employment who may be affected by their operations and incumbent responsibilities, this not only extends to sub-contractors but also extends to members of the public.
REMEMBER: Compliance is only part of the story - To get there and maintain a viable, relevant, and robust approach to health and safety you must also put in place an assurance assessment and plan to keep on top of changes to your operations, personnel, and legislation.
What can you do?
1. Ensure you comply fully with the Health and Safety at Work Act 1974 by ensuring your organisation has robust policies and procedures.
2. Carry out and document regular Risk Assessments in accordance with The Management of Health and Safety at Work Regulations 1999, of work activities and work equipment.
3. Make certain that wherever required, all equipment complies with the Supply of Machinery Safety Regulations 2008. If in doubt ask a professional, like Finch, for assistance.
4. Ensure you have effective management of work equipment under the Provision and Use of Work Equipment Regulations 1998. Ensure that equipment is suitable for the work and that it is competently inspected and maintained in accordance with the level of use, environment, and Original Equipment Manufacturers (OEM) instructions.
5. Work closely with your Thorough Examination Provider who, where appropriate carries out the Thorough Examination under LOLER, PSSR, or PUWER. Thorough Examinations are not to be considered as a gold-plated stamp of compliance. A report of Thorough Examination is only equivalent to an MOT certificate for the next statutory period.
6. These basic things are only as good as the documents and records that detail what you have done. You must have robust, clear, and relevant documents that are reviewed regularly, and understood and the information communicated to the relevant parties to which they affect. How? – training, toolbox talks, maintenance and inspection schedules, work equipment procurement planning, policy and procedures etc.
The aim of course is to mitigate the risk of an incident happening but also to ensure that if there is an incident in the workplace and you have to ‘break the glass’, you confidently know that you have done all you could have done to prevent and mitigate as much risk as possible and robust documentation to support that can be used for internal investigations and/or handed to the enforcement authority for scrutinisation.
How can Finch assist?
Finch has over 500 years’ worth of combined expertise and experience across an incredible range of industries. Our consultants and experts cover all aspects of Health and Safety Legislation as well as recognised industry knowledge in Process Safety and Asset Management.
Senior Consultants Tom Leach and Richard Hoyle both have 1st hand knowledge and experience in conducting post-incident investigations, both are time served in the statutory inspection industry, having both held senior positions in two of the largest Inspection providers in the UK covering LOLER, PSSR, PUWER, and COSHH. They conduct machinery risk assessments, document audits, and assist organisations with technical and regulatory due diligence on policy, procedures, and procurement. As a completely independent, impartial third-party pair of eyes, they are adept at spotting gaps and risk exposure points to bring assurance to your organisation, which is more valuable than compliance alone.
If you feel your organisation needs a regulatory health check, please do not hesitate to reach out to Tom and Richard to discuss your requirements. tom.leach@finch-consulting.com and richard.hoyle@finch-consulting.com
Authors
Tom Leach
Senior Consultant
Richard Hoyle
Senior Consultant
