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September 2021 Health and Safety Updates
28th SEP 2021

Health And Safety Updates

September 2021

This briefing is intended to give an overview of any updates / changes to Health and Safety legislation, guidance and best practice. For further information or advice on how it may affect your Organisation or activities, please feel free to call us!

Andrea – 07989 557708

Abigail – 07767 221556

Updates to Covid 19 Guidance

The HSE have issued updated guidance for keeping workplaces safe as COVID 19 restrictions are removed.

Employers must still control the risks and keep workers safe as restrictions are eased. Risk assessments must be reviewed and updated to ensure compliance with the latest guidance. It is important that the risk assessments are not generic and cover the specific hazards within the workplace and adequate controls remain.

The following controls must remain in place –

  • Adequate ventilation – employers must identify poor ventilated areas and ensure ventilation is provided either by natural or mechanical methods
  • Sufficient cleaning
  • Good hand hygiene
  • Continue to consult with workforce.

The following guidance is also issued by Public Health and other Bodies (these are not enforced by the HSE)

Vaccinations

Face Coverings

Workplace Testing

Can an employer insist workers return to the office?

As Covid restrictions ease, employers and employees are thinking about how far they want to go back to pre-pandemic working arrangements. Many employers have decided against a return to business as usual. Some are abandoning the office altogether and switching to full remote working, while others are moving to hybrid working, with staff splitting their time between office and home.

But some employers want their staff back in the office when restrictions are lifted, and life to return to normal, not all employees will be happy about this, for a variety of reasons. For example, the impact on work-life balance, altered childcare arrangements or a longer commute having moved further away. 

A recent survey by YouGov found that 57 per cent of workers wanted to be able to continue working from home all or part of the time. 

Legal Issues

The employment contract will usually specify the office as the place of work, but this could have been varied verbally. If managers gave employees assurances about how they would work following the pandemic, and employees relied on these to make personal changes, such as moving away, then they may be able to claim that they have a contractual right to continue to work from home.

It is possible that, regardless of what the employment contract says, a badly handled insistence on returning to the office could breach the implied duty of trust and confidence. This would allow the employee to resign and claim constructive dismissal. (The success of a claim such as this would depend on the specific circumstances)

If the employee has six months' service, they can make a statutory flexible working application, which, if agreed, results in a permanent change. The employer can refuse the application on certain specified grounds, including impact on quality of work or ability to meet client needs. 

Employers may have genuine concerns about the long-term impact on the business of permanent remote working, for example around employee engagement, collaboration or client service. Issues such as this could justify refusal, and ideally would be backed up by evidence. 

The government is said to be considering a consultation on flexible working becoming the default option from day one. This would not create a legal right to work from home but would put the burden on the employer to prove that there are good reasons not to do so. Employers may also be required to publish their flexible working policies in future (following proposals in a 2019 government consultation). We will keep you updated on the progress of this.

In conclusion before issuing any ultimatums to staff need to consider –

  • Consultation – Consult with your staff in advance about your proposals, consider whether you can accommodate a hybrid working arrangement or a gradual return to the office.
  • Risk Assessment – Complete a risk assessment (as discussed above) ensuring you are following the recent government guidance.
  • Vulnerable Employees – You have a legal duty to protect your employees and others from risks to health and safety. You should discuss an employee’s individual needs and support them with any additional precautions advised by clinicians.
  • The needs of pregnant workers should also be protected and must be individually considered.

Reporting COVID 19 cases under RIDDOR

The HSE has reviewed its guidance for the reporting of coronavirus cases under Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.

When to report?

A report under RIDDOR should only be made when one of the following circumstances applies - 

  • An accident or incident at work has or could have led to the release or escape of coronavirus. This would be reported as a dangerous occurrence.
  • A worker has been diagnosed as having COVID 19 attributed to an occupational exposure to coronavirus. This would be reported as a case of disease.
  • A worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to biological agent.

Please see https://www.hse.gov.uk/coronavirus/riddor/index.htm

Building Safety Bill

The Ministry for Housing, Communities and Local Government (MHCLG) has published the Building Safety Bill in which HSE is formally named as the new regulator.

The government has asked HSE to establish a new building safety regulator in the wake of the Grenfell Tower disaster and following recommendations in the 'Building a Safer Future' report by Dame Judith Hackitt.

The new regulator will oversee the safe design, construction and occupation of high-risk buildings so that residents are safe and feel safe. It will be independent and give expert advice to local regulators, landlords and building owners, the construction and building design industry, and to residents.

The Building Safety Regulator will -

  • Implement a new, more stringent regulatory regime for high-risk residential buildings.
  • Promote competence among industry professionals and regulators to raise standards in design, construction and the management of buildings.
  • Oversee performance systems of all buildings, so one regulator can provide guidance on building performance as well as building safety, ensuring that factors like countering climate change are factored into regulatory decisions.

HSE and the Ministry of Housing, Communities & Local Government are consulting with representatives from local and devolved government, industry and citizens before bringing any new regulations into law. We will provide more information on the progress of this when published.

Health Surveillance 

The HSE’s latest guidance is available on website.

Health Surveillance is simply a double check that your risk control measures are working. For example, for the hazard of noise, you would undertake a noise risk assessment, reduce the noise to as low as reasonably practicable and if continues to be a risk, issue hearing protection and offer hearing checks.

Health Surveillance is required when -

  • There is an identifiable disease or health effect that could occur due to a hazard of work.
  • There are valid techniques to detect that disease or ill health.
  • The technique itself is low risk to workers.

Health surveillance is not the same as health monitoring, health promotion or health screening. It -

  • Should only be used for workers who need it.
  • Provides feedback about actions you may need to take to prevent further harm and protect workers.
  • Allows workers to raise concerns about how work affects their health.
  • Provides the opportunity to reinforce workers’ training and education.

Your risk assessment will help you decide if you need health surveillance. You should -

  • Look around your workplace and decide what may harm your worker’s health.
  • Decide if you are taking reasonable steps to reduce risk and prevent harm.
  • Think about reasonably practicable improvements you can make or controls you can put in place to reduce risk.

Your findings from health surveillance must contribute to your risk assessment and implementation of effective controls. Health surveillance can detect ill health effects early and show whether you need to review and revise your risk assessment and control measures. Control measures may not always be reliable, despite checking and maintenance.

Other issues that can indicate whether health surveillance might be appropriate include -

  • Previous cases of work-related ill health in your workplace.
  • Reliance on personal protective equipment as an exposure control measure - experience shows its use isn’t always managed properly.
  • Evidence of ill health in jobs in your industry.
  • Information from insurance claims, manufacturer’s data and industry guidance.

Some occupations require medical surveillance, this applies to specific circumstances such as work with lead, asbestos and ionising radiation.

Recent Case Law

West Yorkshire-based construction company, Peter Duffy Ltd have recently been sentenced for safety breaches after multiple employees were diagnosed with Hand Arm Vibration (HAVS).

Leeds Magistrates’ Court heard that the company reported seven cases of HAVS between November 2016 and August 2018.

All the workers involved had been carrying out ground works involving vibrating tools. Many of them had been working in the industry for over 20 years.

An investigation by the Health and Safety Executive (HSE) found that in 2016 the company contracted a new occupational health provider to replace its existing one.

The diagnosis of the workers’ conditions resulted from these changes. Prior to the new company taking over the contract, there was no suitable health surveillance in place to identify HAVS.

They were found in breach of Section 2 (1) of the Health & Safety at Work etc Act 1974. The company has been fined £40,000 and ordered to pay £3,919 in costs.

Site Inspections / Safe Workplace

Work related accidents caused 142 fatalities last year, a rise of 31 from the previous year. Construction and Agriculture accounted for the highest number of fatal injuries and the most common cause of death across all sectors were falls from height and being struck by moving vehicles. (bit.ly/HSE-fatal-injuries-report

As the Coronavirus restrictions are eased and the numbers in the workplace and on construction sites increase, it is more important than ever to ensure your workplaces/ sites are safe and complying with Health and Safety legislation. All employers have a legal duty to protect the health, safety and welfare of all employees and others in the workplace (Section 2 (1) and Section 3 of the Health and Safety at Work Act 1974.

Recent Case Law

Construction company, Urban Living Constructions Limited, have been fined following a Health and Safety Executive (HSE) inspection which identified numerous health and safety failings.

Westminster Magistrates’ Court heard that an inspection of a construction site on 5 August 2019 identified numerous health and safety breaches. These included locations on site that had no edge protection to prevent falls, including a plank that traversed a basement extension to provide access into the property. There were also insufficient measures in place to prevent the collapse of the sides of a large excavation. 

Urban Living Constructions Limited of The Broadway, Woodford Green, Essex, pleaded guilty to a breach of Section 2(1) of the Health and Safety at Work etc. Act 1974. The court fined Urban Living Constructions £50,000 and awarded full costs of £6,578.84.

The Managing Director of a skip hire and waste management firm, whose employee suffered life changing injuries has received a six-month suspended prison sentence and the company fined £150,000. An investigation by the HSE found that the Managing Director and the company had failed to put in place reasonable measures to ensure adequate pedestrian segregation and they had continued to ignore the advice of the Safety Consultant.

A Principal Contractor has been sentenced after a worker came into contact with an 11kV overhead power line.
Beverley Magistrates’ Court heard that on 3 December 2018, a subcontractor scaffolding worker was unloading some scaffolding poles near power cables in Willerby, Hull, when one of the poles caught the overhead line. He sustained burns to his leg and foot and was hospitalised.

The site was very muddy, and operatives were unable to park their vehicles on site near the work area, meaning they had to move the materials onto the site by hand. There were also inadequate controls on site to warn of the overhead cables.
Cambridge Glasshouse Company Limited pleaded guilty to breaching Regulation 14 of the Electricity at Work Regulations 1989. The company was fined £333,333 and ordered to pay costs of £1,235. 
 

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