Guidance, Approved Codes of Practice (ACOPs), Regulations and how they relate to each other.
The purpose of this article is to explain how guidance, codes of practice and regulations interact with each other.
A lot of confusion surrounds this interaction, in particular what is classed as law and must be done, and what isn’t (but you’re best off following the advice!)
It will be of interest to anyone who wants to know how health and safety law is meant to work.
What health and safety law requires.
The basis of British health and safety law is the Health and Safety at Work etc Act 1974.
The Act sets out the duties and responsibilities which employers have towards employees, plus members of the public. In addition it also lays out the responsibilities employees have to themselves and to each other.
The duties are qualified in the Act by the principle of ‘so far as is reasonably practicable’.
This is a shortened way of saying an employer does not necessarily have to take measures to avoid or reduce the risk if they are technically impossible or if the cost, time involved or technology would be grossly disproportionate to the risk.
In this case, what the law would expect is management of the risk and good old common sense. In other words, assess the risks involved and adopt measures to sensibly manage the risk..
The Management of Health and Safety at Work Regulations 1999 (the Management Regulations) is just that. The proven management and robust interest in the health and safety of the work place and its activities.
Employers with five or more employees need to record the significant findings of the risk assessment.
Risk assessments don’t need to be complex documents, especially in low risk activities such as offices and call centres for example.
Essentially, the employer (or the management) are taking a look at the activities of the business, identifying the day to day risks that may be present, and looking at ways of managing or illiminating the risk.
In other words; what do we do, who is at risk by our activities and why, followed by what can we do to avoid the risk?
It only gets complicated in high risk activities such as oil or gas rigs, chemical plants or power stations etc.
The HSE leaflet Five steps to risk assessment will give you more information.
Additionally, companies need to make arrangements to set forth a plan and implement the risks identified in the assessment .
Competent people need to be appointed, (which is often the company owners or directors) to implement the arrangements; provide clear information, training and emergency response plans for employees and other organisation’s that might share the same workplace.
Other regulations require action in response to particular hazards, or in industries where hazards are particularly high.
Guidance can also be specific to the health and safety problems of an industry or the process used in a number of industries.
The main purposes of guidance are:
To interpret and help people to understand what the law says.
This may also include how requirements based on EC Directives fit with those under the Health and Safety at Work Act.
For example helping people to comply with the law or to give technical advice. Following guidance is not compulsory and employers are free to take other action, but if they do they will normally be doing enough to comply with the law.
Approved Codes of Practice
Approved Codes of Practice (ACOPS) offer practical examples of good practice.
They give advice on how to comply with the law by providing a guide to what is ‘reasonably practicable’.
For example, if regulations use words like ‘suitable and sufficient’, an Approved Code of Practice can illustrate what this requires in particular circumstances.
Approved Codes of Practice have a special legal status.
If employers are prosecuted for a breach of health and safety law, and it is proved that they have not followed the relevant provisions of the Approved Code of Practice, a court can find them at fault unless they can show that they have complied with the law in some other way.
Regulations are law, approved by Parliament.
These are usually made under the Health and Safety at Work Act, following proposals from HSE. This applies to regulations based on EC Directives as well as ‘homegrown’ ones.
The Health and Safety at Work Act, and general duties in the Management Regulations are to an extent self-regulating and leave employers freedom to decide how to control risks which they identify.
Guidance and Approved Codes of Practice give advice, but some risks are so great, or the proper control measures so costly, that it would not be appropriate to leave totally to the employers discretion.
Regulations identify these risks and set out specific action that must be taken.
Some regulations apply across all companies, such as the Manual Handling Regulations which apply wherever things are moved by hand or bodily force, and the Display Screen Equipment Regulations which apply wherever VDUs are used.
Other regulations apply to hazards unique to specific industries, such as mining or nuclear.
At least he’s wearing a hard hat!