Duty of Care: 5 Questions You Might Need To Answer To Keep You Or Your Directors Out Of Jail
1 June 2021
A House of Lords judgement in 1932 determined that organisations owe a duty of care, not just to their own employees and direct customers, but to anyone who could be affected by the organisation. Case law has shown that employers must protect people from harm to their health through exposure to noise, vibration, asbestos and other harmful substances as well as from accidents. Increasingly, employers have learned that they also have a duty of care to protect people’s mental health.
1. Can you find all your risk assessments and show they have been reviewed appropriately?
It is a legal requirement to identify hazards and appropriate controls, and to document the significant findings. Most people do this through risk assessments. But where are they stored, and how are they used? Have the risk assessments been reviewed recently? Who was involved? You need to be able to show that risk assessments have taken account of any changes to the way things are done, and to any new evidence of risk that comes from accidents or near misses. Have your workers been briefed on the risk assessments?
2. How quickly could you pull together a list of all the regulations that you apply in your organisation?
You cannot ‘risk assess’ your way out of complying with regulations that have specific requirements. If you don’t already have a list of the legal requirements that apply to your business, create one, and use it to audit the controls you have in place. If any buildings within your control could have asbestos, you need to follow the Control of Asbestos Regulations (CAR); if you have machinery, the Provision and Use of Work Equipment Regulations (PUWER) will apply, and specific regulations such as the Lifting Operations and Lifting Equipment Regulations (LOLER) and the Pressure Systems Safety Regulations (PSSR) might also be relevant. The best way to do this is to create a legal register, held centrally, accessible by all.
3. What evidence do you have that controls identified as essential in risk assessments are in place?
Too many organisations see risk assessments as a compliance exercise, to be locked away until someone asks to see them. Good risk assessments include practical controls, such as a reference to instructions on how to do a job safely, or to training requirements for people doing a task. You need to be able to show that people know how to do the job safely. Build the controls from your risk assessments into your procedures and safe systems of work, and reinforce this with training. Where controls are dependent on periodic actions, like inspections or refresher training, records need to be systematic and available for review.
4. How easily could you bring together evidence that you have reviewed and acted on near misses and minor accidents?
Most organisations understand the importance of reporting and investigating near misses and minor accidents. If you can identify underlying causes, you can take corrective action to prevent major accidents. However, too many reporting systems rely on emails, paper or Word forms, and spreadsheets where details have to be copied from reports. With a manual system, it is difficult to manage every incident report with sufficient detail, and to identify trends which might help prevent further mishaps. Centralise all incident information into one, managed location and use incident management software to identify patterns, review risk assessments and improve controls.
5. Can you prove that you are meeting all the requirements in the regulations for reviews and inspections?
Many of the regulations mentioned require documented examinations, inspections and reviews. For example, PSSR requires a written scheme of examination to be prepared and followed for higher risk pressurised systems such as autoclaves and LPG storage systems; LOLER requires thorough examination of all lifting equipment, with maximum intervals defined in the legislation for different types of equipment; PUWER requires a process for preventative maintenance and for inspection at suitable intervals; CAR requires regular reinspection of asbestos. Your risk assessments will also have identified maintenance and inspection actions as controls. Actions will arise from these reviews and inspections, so you must be able to show that these have been followed up in a reasonable period of time.
Conclusion
Hopefully, by making sure you can answer these questions positively, you can avoid accidents leading to a civil claim or a prosecution. But if the worst happens you will be in a better position to avoid large fines – and time in jail – if you can bring the evidence together smoothly.
For further advice, get in touch today.
