Search

Break Glass in case of Emergency! Regulatory Assurance, a step up from Compliance – Part 1

Break Glass in case of Emergency! Regulatory Assurance, a step up from Compliance – Part 1

In this joint article, Senior Consultants and Expert Witnesses Tom Leach and Richard Hoyle discuss the difference between compliance and regulatory assurance and the responsibilities of owner and duty holders to ensure the suitability of equipment and safety of their employees. This is part 1.

Posted

13.03.2024

Written by

EUR ING Tom Leach Richard Hoyle

We don’t like the way in which the term ‘compliance’ is often used; it carries many negative connotations and is often misunderstood, and the term is incorrectly quoted. Whilst compliance is critical in maintaining a safe work environment in line with UK legislation, from experience it can often become a tick box exercise where policy and procedures are put in a folder until that “Emergency – break glass” moment occurs.

Compliance is a legal requirement, much like a speed limit. Be honest, we have all exceeded the speed limit at some point in our driving career, even by 1 mph. We do it sometimes without thinking, other times deliberately, and hope not to get caught.  The consequences should we be caught in breach of that compliance with the law is a fine, points, or much worse – a custodial sentence if, as a result of that excessive speed, someone is killed or severely injured.

How is Compliance different to Assurance?

In simple terms, being compliant means that you meet the minimum criteria or standard of a particular set of regulations or accreditation at the point of assessment. By itself, it is the most basic demonstration of a duty of care, but there are significant flaws with this.  Adequate, may not always be enough.

Assurance, on the other hand, is:

the continuous process of evaluating all management processes, procedures, and cultural practices that lead to compliance and demonstrate competency and currency in knowledge and development, rather than simply meeting the goal of attaining a certificate passing an audit.

As an example, a Regulation 9(3) Thorough Examination of a crane under LOLER only brings you compliance with one part of the regulation, not the regulation in its entirety, this is commonly misunderstood by owners and duty holders.

Layman’s example

Much like your car passing an MOT, this is the minimum legal criteria required to consider your car road worthy. It goes further – Insurance companies can null and void your cover if it is found that your vehicle is not MOT’d.

Once a MOT certificate is attained, does this mean you do not have to conduct any maintenance or remedial work on your car for the next 12 months to ensure it remains “suitable”? Does this mean that the advisories are simply that, “nice to know” that require no further action until your friendly reminder from your local garage informing you that your MOT is due?

Your MOT certificate is a snapshot of the roadworthiness of the vehicle at the time of the MOT test when considering certain safety-critical aspects that are assessed, e.g. brakes, structure, tyres, steering, suspension, lighting, seatbelts etc, meeting the acceptance criteria allowing for a further 12 months of normal road usage. What if you decide not to take heed of the MOT tester’s advisory comments regarding the steering, brakes, and suspension?

On your way home from the garage (where you have just had the annual service and MOT), you hit a pothole causing damage to the wheel, suspension and steering assembly causing instability – an instant MOT failure (now not due for another 12 months). Or, what if your brake systems started to malfunction causing your brake pads to stick, resulting in excessive and uneven wear so they fail the minimum legal braking requirement? You are aware of the damage caused and the effect on the vehicle’s driving stability, but money is tight, and you continue driving the car.

Six months later, you are driving along, a child runs into the road and you apply emergency braking but inefficient brakes fail to slow the car adequately. You try and swerve to avoid collision but due to the fault in the suspension and steering, the car oversteers and crashes into a school bus stop.

You are now being interviewed under caution for causing death by dangerous driving. The police report details the faults and damage to the steering, suspension, and braking systems. Your only defence is an MOT certificate from 6 months ago and you claim that the MOT is valid for a further 6 months. Would this be considered sufficient to demonstrate you have done everything reasonably practicable to keep the vehicle safe and roadworthy?

What is your defence?

Scary stuff right?, these same principles apply to statutory work equipment, and owners and duty holders should be able to evidence that they have taken all reasonable steps to ensure the work equipment is suitable, safe, and in good working order and that a sufficient risk assessment is in place for the work activity in accordance with Regulations 3 of the Management of Health and Safety at Work Regulations 1999.

 

End of part 1. In part 2 Tom Leach and Richard Hoyle delve into legislation that applies to work equipment in the UK and how Finch can assist your company in process safety and health and safety management.