An Employer’s Duty of Care – 5 Questions to Ask Yourself

The appointment of health and safety consultants such as C&C Consulting Services can assist employers in meeting their duty of care, through the delivery of expert advice and guidance and general assistance in the implementation and embedding of health and safety management within the organisation.

However, it must be understood that this appointment does not ‘contract out’ the employers responsibilities. The Management of Health and Safety at Work Regulations, make it clear that organisations remain responsible.  For example, when a quarrying company was charged with having inadequate risk assessments for respirable silica exposure, the management thought that the consultant appointed to look at health risks would be wholly responsible. The consultant was fined, but so was the employer. The HSE Principal Inspector pointed out: “You cannot outsource your responsibilities — the duty of care remains with you as an employer.”

Here are five test questions to ask yourself as an employer, that you should know the answers too.

  1. Can you find all your risk assessments and show they have been reviewed appropriately?

It is a legal requirement to identify hazards and appropriate controls, and to document the significant findings. Most people do this through tabulated risk assessments. But where are they stored, and how are they used? Have the risk assessments been reviewed recently? Who was involved?  It is not unusual to find risk assessments completed and in use, that have a review date identified well in the past, and that the assessor named, is no longer in employment.

  1. How quickly could you reference a list of all the regulations that you apply in your organisation?

You cannot ‘risk assess’ your way out of complying with regulations that have specific requirements. If you do not have a list of the legal requirements that apply to your business, create one, and use it to audit the controls you have in place. For example: If any buildings within your control could have asbestos, you need to follow the Control of Asbestos Regulations (CAR); if you have machinery, the Provision and Use of Work Equipment Regulations (PUWER) will apply, and specific regulations such as the Lifting Operations and Lifting Equipment Regulations (LOLER) and the Pressure Systems Safety Regulations (PSSR) might also be relevant. The best way to do this is to create a legal register, held centrally, accessible by all and kept up to date with changes etc.

  1. What evidence do you have that controls identified as essential in risk assessments are in place?

Risk assessments are not a tick box tool, used correctly they should be a working tool to assist in identifying hazards and controlling risk.  Too many organisations see risk assessments as a compliance exercise, to be locked away until someone asks to see them. Good risk assessments include practical controls, such as a reference to instructions on how to do a job safely, or to training requirements for people doing a task. You need to be able to show that people know how to do the job safely. Build the controls from your risk assessments into your procedures and safe systems of work, and reinforce this with training. Where controls are dependent on periodic actions, like inspections or refresher training, records need to be systematic and available for review.

  1. How easily could you bring together evidence that you have reviewed and acted on near misses and minor accidents?

It is important to report and investigate near misses and minor accidents. If you can identify underlying causes, you can take corrective action to prevent major accidents. Collate all incident information into one, managed location and analyse the information to identify patterns, review risk assessments and improve controls.  Vision can assist in the collation and identification of incident trends on  a year to date basis.

  1. Can you prove that you are meeting all the requirements in the regulations for reviews and inspections?

A number of regulations require documented examinations, inspections and reviews. For example, LOLER requires thorough examination of all lifting equipment, with maximum intervals defined in the legislation for different types of equipment; PUWER requires a process for preventative maintenance and for inspection at suitable intervals; Asbestos Regulations require regular reinspection of asbestos. Your risk assessments will also have identified maintenance and inspection actions as controls. Actions will arise from these reviews and inspections, so you must be able to show that these have been followed up in a reasonable period of time.  How are your confirming the need to have these actions undertaken, recording the frequency of such actions, completing the actions and saving the continued suitability data in line with compliance?  Vison provides an exemplary solution to recording and managing statutory compliance.

By considering the five questions above, regardless of the appointment of a consultant/advisor not only will you be able to demonstrate that you are meeting a duty of care, it can also serve as a way to challenge the services of your consultant/advisor as they should be in a position to deliver support in these 5 areas.