THE WORK AT HEIGHT REGULATIONS: NEW HSE GUIDANCE AND A POTTED GUIDE

For accidents after the 1st October 2013 there is no action for breach of statutory duty in relation to these Regulations.  However this does not mean that the Regulations are not relevant. Indeed they remain highly relevant for the reasons discussed in previous posts.  Here we look at:

1. Guidance as to the continued relevance of the Regulations.

2. Recent Health and Safety Executive Guidance on the Regulations.

3. An outline of the crucial parts of the Regulations.

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 GUIDANCE FROM PARLIAMENT ON THE CONTINUING RELEVANCE OF THE REGULATIONS

In Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 the House of Lords stated that the courts can consider Hansard, and Ministerial Statements in Particular when construing statutes:

It is illuminating, therefore, to read the statement of Minister Viscount Younger in the debate by the House of Lords on 22 April 2013:

“We acknowledge that this reform will involve changes in the way that health and safety-related claims for compensation are brought and run before the courts. However, to be clear and to avoid any misunderstanding that may have arisen, this measure does not undermine core health and safety standards. The Government are committed to maintaining and building on the UK’s strong health and safety record. The codified framework of requirements, responsibilities and duties placed on employers to protect their employees from harm are unchanged, and will remain relevant as evidence of the standards expected of employers in future civil claims for negligence”.

 RECENT HSE GUIDANCE ON THE REGULATIONS

The Health and Safety Executive have published guidance on the Regulations.

THE DUTY TO RISK ASSESS

Regulation 6.1 states:

Avoidance of risks from work at height

6.  (1)  In identifying the measures required by this regulation, every employer shall take account of a risk assessment under regulation 3 of the Management Regulations. “

There is a duty to risk assess.  It may be useful to look at the detailed consideration of risk assessments in this blog.

There is a detailed guide to risk assessments  and a smaller “bite sized” guide.

There is a summary of the remaining relevance of the Regulations

UNDERSTANDING THE REGULATIONS: A POTTED GUIDE

The Work at Height Regulations came into force on the 6th April 2005. To some extent the title is misleading.

1.         The Regulations do not apply only to work at heights. Indeed work at heights is defined in Regulation 2(1) as:

 “(a) work in any place, including a place at or  below ground level;

 (b) obtaining access to or egress from such place while at work, except by staircase in a permanent workplace.

 where, if measures required by these Regulations were not taken, a person could fall a distance liable to cause personal injury.”

 2.         The Regulations apply to any workplace where there is a risk of a person falling a distance likely to cause personal injury. It thus applies to holes in the floor of the workplace even if that workplace itself is not at height (Regulation 11).

3.         The Regulations  also apply to falling objects. These duties apply even when the employee is not working at height (Regulation 10).

The duties imposed by the Regulations

There are a number of specific duties imposed.

Organisation and planning

The employer is under a duty to ensure that work at height is properly planned; appropriately supervised and carried out in a manner which is so far as reasonably practicable safe. (Regulation 4). There is a duty to ensure that no person is involved in an activity in relation to work at height unless he is competent to do so (Regulation 5).

 

 Avoidance of risks

The employer’s duty further extends to taking into account the risk assessment carried out under regulation 3 of the Management Regulations. The duty extends to ensuring that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height. Further:

Where work is carried out at height, every employer shall take suitable and sufficient measures to prevent, so far asa is reasonably practicable, any person falling a distance liable to cause personal injury.” (Regulation 6(3)).

The duty is then extended to provide work equipment from preventing, so far as reasonably practicable, a fall occurring and to minimise the distance or consequences of a fall.

There are specific duties in relation to selection of work equipment for work at height and particular work equipment (Regulations 7 and 8).

Fragile surfaces

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The duty under Regulation 9 in relation to fragile surfaces apply to every person at work and not just those working at height. Fragile surfaces means “a surface which would be liable to fail if any reasonably foreseeable loading were to be applied to it.”

  The duty is to:

… ensure that no person at work passes across or near, or works on, from or near, a fragile surface where it is reasonably practicable to carry out work safely and under appropriate conditions without his doing so.”

Where it is not reasonably practicable to prevent work on or near a fragile surface the employer has to ensure suitable platforms, covering, guard rails or similar means of support or protection are available and to take suitable and sufficient measures to minimise the distances and consequences of the fall.

Further a general duty is imposed where any person at work may pass across or near, or work on from or near a fragile surface. The employer shall ensure that prominent warning notices are affixed to the approach to the place where the fragile surface is situated and, where this is not reasonably practicable, persons are made aware of it by other means.

Falling objects

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The employer is under a general duty to prevent any person the fall of any material or object. Where it is not reasonably practicable to prevent a person being struck by falling material or object likely to cause personal injury. (Regulations 10(1) and (2).

 There is a specific duty to ensure that no material or object is thrown or tipped from height in circumstances where it is liable to cause injury to any person and to ensure that materials and objects are stored in such a way to prevent the risk of the collapse, overturning or unintended movement of such materials or objects (Regulations 10(3) and (4)).

Danger areas

In addition to the general requirements every employer has to ensure that where, in a workplace, owing to the nature of the work, there is a risk of a any person at work falling a distance or being struck by a falling object which is likely to cause injury, the workplace is equipped with devices preventing unauthorised persons from entering such areas and such area is clearly indicated. (Regulation 11).

Inspection

There are specific duties in relation to inspection of work equipment and inspection of places of work at height. The duty to inspect places of work at height includes a duty to:

… ensure that the surface and every parapet, permanent rail or other such fall protection measure of every place of work at height are checked on each occasion before the place is used.”

 The Schedules to the Regulations

The Schedules to the Regulations are as important as the Regulations themselves. They provide specific guidance as to the duties owed and steps to be taken.

(1) Schedule 1 sets out the requirements for existing places of work and means of access or egress at height.

(2) Schedule 2 outlines the requirements for guard-rails, toe boards, barriers and similar collective means of protection.

(3) Schedule 3 gives the requirements for all working platforms, including additional requirements for scaffolding.

(4) Schedule 4 deals with the requirement for collective safeguards for arresting falls, this includes requirements for personal fall protection services; requirements for work positioning systems; requirements for rope access and positioning techniques, fall arrest systems and work restraining systems.

(5) Schedule 5 sets out requirements for ladders. This includes a duty to ensure that a ladder is used only if a risk assessment under the Management Regulations has demonstrated that the use of more suitable work equipment is not justified because of the low risk; the short duration of use or existing features on site which he cannot alter.

 

Ladders

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There are other requirements in relation to ladders which must be rested on a stable, firm surface of sufficient strength and of suitable composition safety to support the ladder. It must be positioned as to ensure its stability during use. A suspended ladder has to be attached in a secure manner and a portable ladder must be prevented from slipping during use. Further a ladder used for access must be long enough to protrude sufficiently above the place of landing to which it provides access. No interlocking or extension ladder shall be used unless its sections are prevented from moving relative to each other. Further a mobile ladder must be prevented from moving before it is stepped on.

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