The Health and Safety Executive recently prosecuted a self-employed health and safety consultant after he provided “inadequate and flawed” advice to businesses. Sometimes an employer will need help to address health and safety issues and will seek expert help. So what can go wrong, what can the consequences be for the employer and the expert, why is this relevant as the country comes out of lockdown, and how should an employer choose a health and safety consultant?
What Went Wrong?
An HSE investigation has found that a health and safety consultant based in Lincolnshire incorrectly judged the risk from exposure to hand/arm vibration as low and recommended an incorrect remedial measure. He also failed to alert an employer that paints containing isocyanates (which are subject to controls under the Control of Substances Hazardous to Health 2002 (COSHH)) can cause asthma. Consequently, employees of the businesses were exposed to levels of noise, vibrations and chemical substances that could have caused injury to their health.
The court found the consultant to be ‘incompetent’ at advising his clients in the assessment and control of risks from workplace noise, hand and arm vibration and substances hazardous to health. He pleaded guilty to breaching Section 3(2) of the Health and Safety at Work Act 1974 and was fined £1,400.
There are other cases of consultants being prosecuted.
A court convicted an independent health and safety consultant of exposing another to a risk to health and safety and jailed for 9 months following the death of a worker crushed when the wall of an unsupported trench collapsed in December 2010. The court found that despite identifying the risk of trenches collapsing in his risk assessments, the consultant drafted an inadequate method statement to prevent this happening. The consultant also failed to react when the company changed the method of excavation, despite having the authority to stop works being carried out dangerously.
A consultant appointed to deliver fire risk assessments for two hotels failed to identify serious deficiencies in his risk assessments. Nottingham Fire and Rescue Service identified inadequate or locked fire doors, substandard alarms and untested extinguishers and issued prohibition notices to prevent the accommodation being used. The consultant was imprisoned for 8 months and ordered to pay £6000 in costs.
Some cases highlight the importance of looking into the background of consultants. A consultant who issued safety certificates for bouncy castles and other inflatables, despite their dangerous faults, had received a prohibition notice stating that he could not and should not inspect bouncy castles and other play equipment and issue safety certificates. The court imprisoned him for 14 months.
In November 2019, a Cambridge instrument company and a health and safety consultant were fined for risking the health of employees from hazardous chemicals. Poor advice resulted in a worker using trichloroethylene and paints containing isocyanates in an inadequately ventilated setting and without the health surveillance related to the use of hazardous substances. The person trading as a consultancy business had a background in quality control and did not have adequate knowledge of health and safety for the work being carried out. The court fined him £1500 plus £1000 costs under the Health and Safety at Work, etc Act 1974.
The Health and Safety at Work etc. Act 1974 (HSWA) imposes duties on various classes of person (individuals or corporate entities) to take all ‘reasonably practicable’ measures necessary to control and manage health and safety risks. Failure to comply with the HSWA may result in fines and, in serious cases, custodial sentences. The HSWA says “it shall be the duty of every self-employed person [who conducts an undertaking of a prescribed description] to conduct [the undertaking] in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety”.
While it may be more often understood as imposing a duty on self-employed individuals to control health and safety risks arising out of their activities (for example, electrical services supplied by a self-employed contractor), it also applies if the self-employed person’s role is specifically the provision of health and safety advice to other businesses.
Delegating Health and Safety
Employers or their managers cannot shift or delegate their statutory responsibilities concerning health and safety to third party consultants, leaving only the consultant at risk of liability for health and safety failures. The HSWA imposes strict criminal liabilities on employers and relevant individuals within organisations.
This is subject, however, to those persons being able to establish that ‘all reasonably practicable’ precautions to control health and safety risks were taken and that they had therefore satisfied their duties under the HSWA. However, establishing that all ‘reasonably practicable precautions’ have been taken is not technically a defence to a prosecution under the HSWA. Instead, it serves to qualify the extent of the duty an individual is subject to under the HSWA.
The assessment of whether ‘reasonably practicable’ measures have been taken may involve considering the level of risk and the measures taken to avert that risk. Perhaps the hiring of a third-party advisor could be deemed to be a ‘reasonably practicable’ precaution itself (and in many health and safety contexts, seeking specialist third-party input will be essential), but this may only be the case where there is some evidence of due-diligence having been undertaken as to the advisor’s qualifications and experience.
While previous prosecutions show that third-party health and safety advisors are themselves at risk of prosecution if they provide inadequate advice, businesses and managers need to remember that their health and safety duties cannot be delegated to a third party. It is not a case of ‘hire and forget’.
Relevance To The Coronavirus Pandemic
As we move further out of lockdown, efforts to control the spread of the coronavirus are focusing more on the health and safety duties of private companies and individuals. These duties are prescribed by the HSWA and, in certain cases, secondary legislation made in accordance with the HSWA (COSHH, for example). The duties concerning the coronavirus are essentially to follow the government’s Working safely during coronavirus (COVID-19) guidance published online (and to review the HSE’s specific advice to help control the risk of coronavirus in workplaces which the government’s guidance refers to and is deemed to incorporate).
The government’s guidance adds detail to the HSWA’s duties in relation to the coronavirus, and relevant regulatory bodies, including the HSE and local authorities, will base their monitoring and enforcement activities around it. Each business has to adapt the implementation of the guidance to their specific circumstances, which may include seeking specialist or technical advice where necessary. Choosing an external advisor is an important decision, especially in relation to preventing the spread of a virus that has already killed tens of thousands in the UK.
Choosing A Consultant
An appropriate health and safety consultant should know enough about the risks in your business and your business sector. If their background isn’t in manufacturing, hospitality, construction or whatever you do, you may not be getting the right advice.
The HSE states an employer must appoint someone competent to help them meet their health and safety duties. A competent person is someone with the skills, knowledge and experience to manage health and safety. If an employer uses a consultant or adviser from outside their business, they should make sure the person is competent, suitable and will give the help needed.
This provides a list of general health and safety advisers who have a qualification recognised by the professional bodies taking part in the scheme. A consultant can join the register only if they meet eligibility criteria agreed by the network of professional bodies and stakeholders involved in developing the register. All consultants who join the register must also declare they will show adequate continuing professional development, they will abide by their professional body’s code of conduct, they will provide sensible and proportionate advice, and they will have professional indemnity insurance or the equivalent to cover the nature of their duties.
Employers cannot fulfil their health and safety obligations by engaging an outside expert to advise them. Companies must ensure that any health and safety advice they need is provided by someone with the relevant competence, experience and advice. It is also important that consultants ensure they are a good fit for the job, as they may be liable if their activities contribute to health and safety offences.
New Broom Training provides Health and Safety courses. Each course is recognised by the relevant awarding bodies including IOSH, NEBOSH, IIRSM and QCDA. We have experienced and skilled professionals to advise you on your Health and Safety Training requirements and the courses best suited to meet your needs. Contact us for more information.