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Foreseeing workplace risks without a crystal ball

Category: Foreseeing risk | Bryan Richards Twitter | Published on: Apr 5, 2012 | Updated: Dec 12, 2016 Read more: Foreseeing risk

You must be satisfied that that you can justify the steps that have been taken to control foreseeable and material risks, as well as the control measures you have decided not to implement. Anything short of this will leave you vulnerable to prosecution.

Workplace risk assessment

Recent case law focuses on the responsibility of employers to foresee workplace risks, but can you assess risk beyond the obvious? After a serious workplace accident, the subsequent investigation by the authorities seems to follow a common route; the accident `happened’ so the employer is at fault. An inadequate risk assessment is often cited and this usually boils down to the fact that risks were not adequately foreseen.

Why should this be? Surely if employers implement risk control measures based on risks that are reasonable to foresee, the likelihood of prosecution should be mitigated? Unfortunately, employees sometimes go beyond what is foreseeable when they do not follow instructions and training and put themselves in danger. This is frustrating for employers’ as it seems that the only way to have foreseen these actions would have been through the use of a crystal ball.

The most recent case to explore “foreseeability” in the Court of Appeal was R v Tangerine. Tangerine Confectionary Limited were convicted for a breach of the Health and Safety at Work Act 1974 after an employee entered a machine to unblock it, apparently without switching off that part of the machine. Tragically, the machine activated and crushed the employee to death. The appeal failed, but the Court made some useful comments:

  • Although the way in which an accident happens does not have to be foreseeable, the risks associated with the activity should be foreseeable.
  • The risk of operatives, even when experienced, departing repeatedly from accepted procedures in the vicinity of dangerous machinery, is not uncommon.
  • Risk assessors must go beyond the obvious risks and consider the risks that could arise as a result of individuals acting outside their training and instruction, and to consider ways that such risks can be controlled.

Risk Assessment as a Legal Defence

The quality of risk assessments and the identification of relevant control measures are key to defending health and safety prosecutions. Risk assessments will be examined to establish whether:

  • All reasonably foreseeable risks were identified.
  • Everything that could have been done to control the risks was done.
  • There was no better way of doing it.

What you should do as an Employer

It is vital that the risk assessments you carry out meet the criteria outlined above. Risk assessments are often inadequate as they merely seek to justify that existing control measures are sufficient, instead of trying to identify all risks and then determining what appropriate control measures should be implemented.

Contact us

Arinite specialises in risk assessment and if you need help or support in ensuring that your risk assessments are adequate, please call me on 0780 361 2948 or drop me a line at b.richards@arinite.com.

Bryan Richards 5th April 2012

 
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