Weighing up the law

12 June 2019

Laura White ponders whether change is afoot for the Work at Height Regulations 2005

Despite an overhaul of the Health and Safety Executive’s work at height guidance in 2014, falls from height remain one of the main causes of fatal accidents at work. The Work at Height Regulations 2005 apply to all work where there might be a risk of a fall liable to cause personal injury, and introduced a hierarchy of measures to be considered during the work at height process, with the aim of encouraging avoidance of work at height, where possible.

Where it cannot be avoided, the best practicable means of ensuring the safety of those working at height must be used. Since the introduction of these regulations, the UK has consistently had some of the lowest workplace fatality and serious injury rates in the European Union. Despite this, falls from height remain the single biggest cause of workplace fatalities.

Earlier this year, the All Party Parliamentary Group (APPG), formed in October 2017 in a bid to ‘understand the root causes and propose effective, sensible measures to reduce this toll’, published its report, Staying Alive: preventing serious injury and fatalities while working at height. 

The report points to the inconsistency of safety regulation across the United Kingdom, and highlights that there are ‘a number of complex and multi-faceted reasons based on culture, behaviour and competence’ for falls from height. It calls on the government and industry to act to bring about a systematic and cultural change in attitudes to work at height, including an investigation into the suitability of legally binding financial penalties in health and safety akin to civil sanctions that are available in certain environmental cases. 

Five key recommendations are made by the APPG, as follows:

the introduction of enhanced reporting through the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), which at a minimum record the scale of the fall, the method used and circumstances of it

reporting of near misses and accidents that do not qualify for RIDDOR reporting to give a better understanding of accidents and their circumstances

improved training and education, particularly for industries outside 

of the construction sector

an equivalent system to Scotland’s Fatal Accident Inquiry (FAI) process to be extended to the rest of the UK – in Scotland, an FAI is carried out when a death results from an accident at work, and its aim is to uncover the facts to prevent future deaths or injuries, rather than to apportion blame

the creation of a digital technology strategy to encourage investment in new technology, particularly for small, micro and sole traders – the use of new technologies and innovations such as augmented reality and the effective use of drones is now a reality, but is out of reach for some smaller organisations, and a new tax relief (for example) would go some way to enabling them to invest in such technology

Under the current regime, those convicted of health and safety failings can expect increasingly hefty fines and, for individuals, an enhanced risk of a custodial sentence. 

Fear of such reprisals can lead to the underreporting of incidents however, and the result can be that important lessons are missed. Highlighting the ability of some agencies (for example the Environment Agency) to apply legally binding civil penalties for certain offences, the APPG has called for a similar system for the work at height sector, encouraging ‘faster enforcement of regulations and… an improved culture of reporting incidents’.

Whether this would occur remains to be seen. This type of civil sanction has been considered and rejected in the past, amidst concerns that victims and their families would perceive it simply as big business avoiding its responsibilities by paying a fine. With some evidence too that the introduction of the Fee for Intervention scheme has brought tensions to Health and Safety Executive/duty holder relations, the impact of such civil penalties would have to be considered carefully – an effective health and safety regime relies on collaboration between the two, 

not increased animosity. 

Whilst the public interest is often best served by having a system that enables the regulator to achieve remediation or reparation, rather than proceed to a prosecution, proportionality and transparency in any response is essential if public confidence is to be maintained. The aims of the proposals for enhanced RIDDOR reporting are to be applauded. However, the system is already difficult and, rather than simply add to this, a wholesale review of it may provide a better solution that is fit for purpose.

It’s worth noting that the report also highlights the fact that those carrying out a regular task can become complacent and inured to the risk and potential consequences of a fall – the ‘it will never happen to me’ belief. Responsibility for safety and health is not an obligation exclusively on the shoulders of an employer however, and workers retain a duty to take reasonable care for the safety and health of themselves and others. 

Failure to do so and the assumption of unnecessary personal risk can result in a fine and/or prison sentence for those at fault. The devil will, of course, be in the detail of any future reform of the Work at Height Regulations 2005, but in the meantime, organisations and individuals involved in such work must take note – ignore your obligations at your peril.

Laura White is an associate in the health and safety team at Pinsent Masons