Director Briefings Part 11: The Competent Person
In this penultimate issue of our Director’s Briefings, engineer and training expert Martin White and health and safety solicitor Sue Dearden consider;
- what is meant by “the competent person” required in every organisation to assist in implementing measures which keep the business compliant on health and safety issues, and
- make practical suggestions of questions Directors could raise to be assured of the competence of their competent person.
From our weekly briefings so far, you should have received the message loud and clear that as Directors, whilst you do not need to be health and safety experts yourselves, you do need to have sufficient awareness of the range of health and safety issues that your business needs to deal with, to avoid committing a criminal offence for which you may have personal liability. These offences may be:
- Failing to take reasonable care for the health and safety of yourself and others who may be affected by your acts or omissions at work (Section 7 duty under the Health and Safety at Work etc Act 1974) (the Act).
- Consenting to or conniving in a corporate breach, or a breach of duty by the company being attributed to your neglect (section 37 offence under the Act).
Every employer has a legal obligation to appoint one or more competent persons to assist in implementing the measures required to comply with the health and safety duties imposed by the Act, and by health and safety regulations, some of which we have been discussing week by week in this series of Director’s Briefings. Whilst we have been focusing on ways in which you might both challenge and support your competent persons to meet your obligations, how can you be sure that those supporting you in this area, are in fact competent?
The Management of Health and Safety at Work Regulations 1999 (MHSWR) identifies the requisite competence as someone with, “sufficient training and experience or knowledge and other qualities to enable him properly to assist in undertaking the measures….” (Regulation 7(5)).
The MHSWR also requires that where there is a competent person within the organisation, they should be appointed in preference to an external adviser (Regulation 7(8)).
According to the HSE’s former Chair, Judith Hackitt, “The essence of competence is relevance to the workplace. What matters is that there is a proper focus on both the risks that occur most often and those with serious consequences. Competence is the ability for every director, manager and worker to recognise the risks in operational activities and then apply the right measures to control and manage those risks.”
So how do you know if your business’ competent person is competent?
Here are five tips to help you in finding the person or persons right for your business:
- It is not usually essential for a competent person to have formal health and safety qualifications or training, though it can help. IOSH and NEBOSH qualifications are well regarded though do not by themselves assure competence. If you are looking at an external provider ask if they are on The Occupational Safety and Health Consultants Register. Ask them to explain to you why they see themselves as competent to advise your business on health and safety.
- Ensure that they understand your business and its key areas of risk. That may derive from having worked in your business or a similar business or a different business facing similar risks and from which references can be obtained. You are in the best position to know what your key risks are, whether that is explosive or hazardous substances, machinery, workplace transport, work at height or any other area. Ask what they see as the top 5 areas of risk for your business – do they align with your thoughts as a Director of the business? Do they understand your health and safety risks?
- If any HSE competence related guidance applies to your work activities (check here) then check their familiarity with and understanding of that guidance and how it applies to your business.
- Ask them to explain to you what they understand by the hierarchy of control to ensure that they are aligned with what H&S regulators like the HSE will expect. The recommended hierarchy of control prioritises elimination of risk where possible (e.g. change this hazardous substance for one that is non-hazardous), followed by engineered controls (e.g. fencing to prevent a fall) that manage or reduce the risk, followed by administrative controls (instruction/training) followed by personal protective equipment. Are they confident in explaining how risks will be identified and controlled? Competent health and safety personnel will keep controls under constant review and actively look to move control up the hierarchy where possible.
- Keep the performance of your competent person under review going forwards. You will be looking for specific and relevant documentation to be produced (through risk assessments, procedures, and policies) and practical proportionate solutions to risk management. You will also be looking for compliance throughout your organisation, usually achieved through effective consultation, communication, and training with staff so that everyone is engaged in health and safety.
There are some aspects of managing and mitigating workplace risks that may require specialist knowledge, such as those covered by DSEAR, PUWER, and LOLER. Your competent person does not necessarily need to be competent in these areas, but should at least be aware of them and able to appoint external advisors if no in house expertise is available.
Ensuring the appointment of a competent person to advise and support your business with health and safety is not the end of your role as a Director. You need to ensure that they are supported with an appropriate budget and periodic training to ensure that they keep up to date with industry and legislative changes. Your behaviour should support and reinforce the safety culture they are helping to put in place and you should also question from time to time the health and safety controls intended to keep your staff and others who may be affected by your business such as visitors, customers and contractors, safe.
If you would like to have a further discussion on competence and the issues you should be looking at to assess the same please contact:
Susan Dearden: [email protected]
Martin White: [email protected].