Preparation is only part of the journey. Implementation and monitoring are key.
Joint Head of Legal, Julia Thomas highlights a recent case where a construction company was prosecuted and fined despite having in place adequate health and safety and risk management processes. This was principally because under scrutiny, it was found they were not backed up by ongoing training and effective monitoring.
I have often said to those involved in the management of health and safety, that having a library of wonderfully drafted safe systems of work only takes you part of the way to complying with the law. It will not get you off the hook in the event of an incident.
Why? Because, a company can have the best construction risk management systems in the world electronically or on paper, but if they are not implemented and monitored, they open up companies to the very risk they are trying to prevent.
Companies must ensure their construction risk policies and procedures are communicated and monitored effectively to those who need to follow them on the ground. If there is no effective monitoring of those persons, then in spite of your policies and systems, the risks that you are trying to prevent may still occur. Subsequently you will have no viable defence if prosecuted.
On 10 January 2020 a well-known construction company (McGee Group Limited), was fined £500,000 after a father of two was killed in an incident in April 2014, when a reinforced concrete slab collapsed underneath him during a demolition.
The fall caused the injuries which proved fatal and the prosecution criticised the following circumstances which it alleged prevailed over a significant period:
- Although it was accepted that the safe systems of work documentation were generally of an acceptable standard, it lacked clarity as to who was responsible for the conduct and supervision of the tasks;
- Procedures had not been followed by staff for a significant period of time. For example, at the time of his accident, the deceased was carrying out hot works without having completed a course mandated by the company’s policy and procedures. Although not causative of his injuries, the fact that he had requested and been issued with hot works Permits to Work without the course evidenced lack of monitoring by the business of compliance with its own procedures;
- On a number of occasions demolition work was taking place in areas where there was insufficient guarding to prevent a fall from height or PPE to mitigate the consequences of a fall; and
- Remedial actions identified by the company’s health and safety team in relation to work at height had not been carried out.
One of the key points raised during the sentencing hearing was the number of workers put at risk whilst working at height in the weeks leading to the incident.
The judge failed to accept the defence submission that the risk complained of was limited and that when considering risk, only the number of workers exposed at any one time was relevant. The judge took the view that the breach was a continuing one which exposed a number of workers to the risk over a period of time which aggravated the level of fine.
The Judge was also satisfied that the breach was causative of injury. The defence had submitted that the supervisor had told those injured by the collapsed slab to move away from it but this was found to be insufficient to break the chain of causation – the Judge decided steps should have been taken to remove the men from the slab which was vulnerable to collapse. The breach of duty was found to be a significant factor in the fatality which aggravated the penalty imposed.
What construction risk management lessons can we take away from this case?
A key lesson to learn from this case is that all health & safety and construction risk management systems and processes must be effective and regularly monitored:
- If you have requirements in your company policies and procedures even if they are above normal industry standards, you must ensure that your employees are following them.
- When giving instructions to employees the communication of those instructions alone is not always going to be sufficient to discharge your duty under the law, particularly where the risk is of a high level of harm or death. Steps have to be taken to ensure the employees are following those instructions.
- Health and safety charges punish inadequately managed risk. Even though an accident may not be caused by the failures, you can be punished for them particularly if the risk was high and/or engendered risk of death or life changing injury.
- If you have a Permit to Work system then ensure those who can sign them off understand what they must check and the risks of non compliance.
- Do 0not rely simply on training to convey an appreciation of the risks faced on a particular site. Risk assessments and the controls they include are your responsibility as employers and need to be gone through with those whose work they impact to ensure that they understand the controls in place.
Finch is a multi-disciplinary practice, with consulting and legal experts who can assist you with this type of issue. From the development of safe systems of work and training of your staff, to advice and legal representation in the event of a prosecution for regulatory non-compliance, our combined expertise can help you prevent incidents from occurring and represent you if under investigation or prosecution.
If you wish to discuss any of the issues arising from this case or any aspect of construction risk management, please contact Julia Thomas for a confidential no obligation discussion.