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Don’t Take the Fall

Published: 17th Sep 2015

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This article will look at working at height, with reference to height safety equipment through analysis of data and assessing the success of the legal approach to the control of height risk in the UK. Such an analysis should be useful both in the UK and for comparative use beyond these shores.

This is a subject that has been covered extensively, but there is an obvious reason – in their very useful document on statistics for falls for the 2013 – 2014 period the Health and Safety Executive (HSE) revealed that falls from height were the most common cause of workplace fatalities in the UK. There were 39 deaths during that period (compared with 40 in 2012/13), accounting for nearly 29% of fatal injuries to workers. The rate of injuries due to falls was somewhere between 48 and 77 per 100,000 workers, with an estimated 567,000 working days lost.

Drawing breath from the above onslaught of data, the figures show that this is a serious subject; however, in the UK the law regulating the activity, the Work at Height Regulations 2005 (WAHR), and its enforcement has been controversial. As with a lot of transposed European law, there have been worries that the UK has over-regulated and over-complicated a fairly simple problem – gravity.

Everybody reading this article will have their own understanding of what ‘working at height’ means. It will be useful, therefore, to define what the UK law regards as working at height (HSE guidance based on the WAHR definition).

“Work at height means work in any place where, if precautions were not taken, a person could fall a distance liable to cause personal injury. You are working at height if you:

  • Work above ground/floor level
  • Could fall from an edge, through an opening or fragile surface •  Could fall from ground level into an opening in a floor or a hole in the ground
  • Could fall from ground level into an opening in a floor or a hole in the ground

Work at height does not include a slip or a trip on the level, as a fall from height has to involve a fall from one level to a lower level, nor does it include walking up and down a permanent staircase in a building.”

It is interesting in that the definition includes the possibility of working at height when you are not elevated from the ground. I am sure most people would instinctively define it as involving being above ground level.

Obviously, work at height was regulated long before WAHR 2005. It was covered by industry-specific laws such as construction, docks, offshore and shipbuilding regulations, as well as the general requirements of the Health and Safety at Work etc. Act 1974, and the Management of Health and Safety Regulations. From the start there were questions regarding the necessity of a new set of regulations, particularly in some anti EU political circles, as they were an implementation of an EU directive, the Temporary Work at Height Directive (2001/45/EC).

This controversy continued until relatively recently when the well-received Lofstedt report  recommended a review of WAHR, although not revocation as some over critical media elements suggested. The review took place in 2012, deciding that the regulations were fine and it was their interpretation that was the problem.

So what do these controversial regulations require? From the HSE website:

  • All work at height is properly planned and organised
  • Those involved in work at height are competent
  • The risks from work at height are assessed and appropriate work equipment is selected and used
  • The risks from fragile surfaces are properly controlled
  • Equipment for work at height is properly inspected and maintained

All very sensible and difficult to argue against. I believe the problem lies in the move from the certainties of the industry-specific prescribed requirements of the previous regulations to the risk based approach of WAHR. Much in the same way as in years gone by there were issues arising from the move from the dictated certainties of the prescriptive Factories Act 1961, which provided dictated standards set out by government, to the Health and Safety at Work Act (HSWA) and associated regulations, which required the employer/occupier to set their own risk based standards.

The risk based approach requires duty holders to interpret the requirements of the law relative to their own situation. To get such interpretation correct requires time, knowledge, expertise and pragmatism. This has been the problem as not all of these qualities have been applied to the interpretation of risk, not only in work at height but many industrial risk challenges.

Experience has shown that often it is a lack of time and pragmatism that cause the problems, e.g. when a difficult risk issue arises in a workplace and there are time pressures (i.e. all the time), two not uncommon responses are to either ignore the issue or overreact/overengineer/over compensate. Both of these approaches cause problems.

An example of one of the previously described ‘certainties’ that was removed by the WAHR was the two metre rule. This rule required the use of specific control measures for construction work that presented a risk of people falling two or more metres. The problem was that the two metre rule encouraged duty holders at the ‘less sophisticated’ end of the risk management spectrum, that adhered to the law only, to leave people vulnerable when working at low heights.

The removal of the two metre rule demonstrated one of the interpretive problems of WAHR.

At the other end of the risk management spectrum some people took the risk hierarchy process required as erroneously meaning that ladders and stepladders were banned – though it is likely that mischief makers of the “health and safety gone mad” persuasion exaggerated this issue. The HSE had to address this in their ‘myth busters’ campaign; though the HSE clearly believe that ladders are sometimes used in inappropriate situations, it was accepted that there are situations where a ladder is the most suitable equipment. Also, the HSE in guidance has stated that there may be low-risk situations where common sense tells you no particular precautions are necessary and the law should recognise this.

It would be useful to look at the WAHR risk based approach in the context of selection of working at height equipment. When considering what the most appropriate equipment is to be used for work at height, employers are to consider the following steps: avoid, prevent and minimise. This is a risk hierarchy.

As an example:

  • Can the risk be avoided, i.e. can the working at height be avoided? There has been a civil case in recent years where compensation was awarded by a judge following a ladder-based injury on the basis that objects stored at height could have been stored at ground level. In other situations, can extendable tools be used, or can the equipment being worked on be lowered? If not, then:Can the risk be prevented? Using scaffolding or an existing place of work that is already safe; for example, a non-fragile roof with a permanent perimeter guardrail. If this is not possible, then:
  • Can the risk be prevented? Using scaffolding or an existing place of work that is already safe; for example, a non-fragile roof with a permanent perimeter guardrail. If this is not possible, then:
  • Can you minimise the distance and/or consequences of a fall? This may involve safety nets, or air bags placed under the place of work.

The above process goes to the heart of the problem, which is that some duty holders find it difficult to deal with work at height, and selection of equipment where necessary, without prescribed solutions. They do not cope well with risk based processes; particularly in industries such as construction that are in a continual dynamic state of change and development.

Having said that, it must be recognised that dealing with the risk process in the construction industry with its dynamic nature and involving a workforce that often differs from job to job is more challenging than other static industries. As a defence lawyer I believe that this is often not taken into account by the relevant regulatory bodies when making their enforcement decisions.

The dynamic situation is a particularly challenging aspect. Many construction managers often prescribe the type of equipment to be used in certain situations, i.e. in which situations to use cherry pickers, scaffolding, nets and harnesses. These decisions are often enshrined in centrally written procedures such as SOPs, method statements and risk assessments to be followed by the onsite crews. The conditions onsite, however, can be many and varied, with underground/overhead services, different shapes of buildings, equipment failures, and even differing weather conditions. Such variations may need a change to the established methods and equipment to be employed, and this will require the situation to be risk assessed and new approaches thought out and properly implemented.

On construction sites in particular this can be difficult for all sorts of reasons: time pressures, unavailability of safety management on weekends, contractors unable or unwilling to deviate from set (and costed) programmes, etc. Many post-accident statements have been taken from managers along the lines of ‘the equipment should never have been used in this situation, if only they had contacted me / head office /safety department/site agent before they did this we would have supplied the correct approach/equipment’.

It can be argued that the regulations require a level of risk management capability that is often unavailable in small organisations or construction sites. However, how have the regulations performed since their implementation? This question was considered in the already mentioned post-Loftstedt HSE review of the regulations 3 . The report states: “ Injuries due to falls have been declining steadily since 2005 across all industry sectors except for water, sewerage, waste and remediation (a relatively new industry grouping, which reports fewer than 100 fall injuries per year). In the period from 2005/06 (introduction of WAHR) up to 2010/11: fatal falls reduced by 25%; major falls injuries by 12%; and over three day fall injuries by 20%. ”

These figures suggest that although there are problems, a risk based approach to working at height has generated a significant success story, although cynics may point out that this time period included the biggest recession since the 1930s, with a major downturn in construction activity.

A brief case study introduces another possible measurement of success of WAHR - ease of prosecution of specific failings. In May 2015 Ivars Bahmanis fell nearly eight metres to his death when installing metal brackets for new roof joists at an old mill. The employer was imprisoned for 45 weeks after pleading guilty to two breaches of the WAHR. The person in charge of works was sentenced to 120 hours unpaid. The owner of the mill was also sentenced to 24 weeks imprisonment suspended for two years and ordered to pay £20,000 towards prosecution costs. An aggravating factor being that another worker had previously fallen at the same site, which was not reported. There are plenty of ‘high fine’ examples in sentencing, but the Bahmanis case shows that custodial sentences are also becoming more prevalent.

This case fits in with another section of the previously mentioned post-Loftstedt HSE review. It states that “WAHR is one of the most enforced set of health and safety regulations with 16,771 notices served since 2005, of which 12,186 (72%) were in construction (mostly smaller sites employing less than 25 workers), which suggests a lack of compliance rather than over compliance in certain areas.” This information is complemented by the statistic that in 2013 to 2014 the HSE prosecuted 77 cases under WAHR, with a 95% success rate and that one in 10 offences prosecuted by the HSE that year was under the WAHR.

This is significant as the HSE is notorious for investigating under specific regulations and then prosecuting under sections 2 and 3 of the Health and Safety at Work Act (HSWA). The general umbrella nature of the HSWA makes it the preferred mechanism of prosecution; therefore, it seems that WAHR has become a front line weapon in the HSE’s armoury.

It should also be mentioned that in the case of fatalities the prosecution choice is widened to include individual gross negligent manslaughter and corporate manslaughter. One of the first corporate manslaughter cases, R v Lions Steel included work at height, involving a fall through a fragile roof with a £480,000 fine.

The statistics suggest that the enforcers and the courts have decided that despite the difficulties that some businesses may have in implementing a successful risk based management system related to working at height, there is to be little tolerance of failure.

That specific failures in work at height safety and use of equipment can be pinpointed and addressed in court.

The potency of the WAHR is set to increase with the removal of maximum financial penalties in Magistrates’ courts from March 2014  and the soon-to-be-implemented guidelines on sentencing, which the majority of commentators believe will increase the level of fines considerably.

This success in prosecution will be a force for improving standards. It will show good performers that their efforts and resources employed in terms of ensuring good standards for work at height are cost effective.

To conclude, the use of a less prescriptive, more flexible risk based approach to combat the terrible consequences of poor safety performance in working at height are now well entrenched in the UK, and figures indicate that the approach is succeeding in reducing injury and death.

The approach demands a lot from the duty holders in terms of understanding the use of risk management and the use of equipment with reference to the hierarchy of control measures. Figures from the courts, however, suggest that there is a wider understanding of the importance of the approach and that there is little sympathy for failure.

The approach is also in tune with other developments in construction management, e.g. the latest version of CDM and the movement towards Building Information Modelling (BIM), which can be explored in further articles.

Published: 17th Sep 2015 in Health and Safety International

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Richard Voke is a Partner and Head of the Business Risk and Regulation Team, Ashfords LLP.
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