Warning: Can YOU Be Prosecuted For Hiring the Wrong Health & Safety Help?

It is general etiquette in the UK to never ask a lady her age. Still, many of my course students are astounded to learn that I am 36 years of age! In fact, a smattering of laughter will usually ripple around the room! Being 36 is an ongoing surprise to me too, not least because my oldest son is already 44. 

But from a Health & Safety perspective I am forever 36, and so is anyone you hire to provide Health and Safety training or advice. The reason relates to Section 36 of the Health and Safety at Work Act…

Meet Your New “Health & Safety” Consultant

Imagine you've employed a new Health & Safety consultant and have worked with them for several months. You are having a tidy-up one day and decide to move some racking from the middle of the production area to the side wall. You phone your consultant to ask for a written risk assessment and method statement (RAMS).  

“It should be fine,” you state, confidently. “It’ll be over the summer shutdown, and the guys have done online manual handling and working at height training. They are experienced and know exactly what they are doing. Besides, they lift and carry all the time, and often work at height.”

“Are you sure?” the consultant replies. “This is specialised work - and the racking needs a thorough inspection before use after the move. Given the overtime costs, it might be better to call a racking company for a quote?”

A few days later you call back in a fluster. “The pirates at the racking company want £2,500 to move the racking!” you spit into the receiver. “It's daylight robbery. In the past we have stripped down and rebuilt the shelving on many occasions, this is light work compared to what we do onsite daily. Would it be possible for us to do this ourselves?

You hear a small sigh on the other end of the phone. “Okay,” the consultant says, flatly. “You’re sure they’re competent and know what they’re doing?”

“Yes!” you reply emphatically.  

Two days later you have your RAMS. You breathe a sigh of relief at not having to spend £2,500 on a ‘simple job’.

The trouble is, your experienced Health & Safety consultant, is not a racking expert. So consequently the RAMS are not suitable for the job. The men don't bother to read them anyway as they "know what they are doing and have never had an accident." (Why would they read instructions??)  

One hour into the job, one of the men falls from the extendable ladder while reaching over to remove one of the uprights. The upright slips out of his hands and strikes the guy footing the ladder on the head.

What Are The Consequences?

So of course, your consultant will get into a lot of trouble for giving you this level of advice. Section 36 says that if a consultant provides advice that leads to an injury or ill health, the Health and Safety Executive can prosecute them for giving that wrong advice. They can be fined and sent to prison. 

So from the consultant’s point of view, the stakes are high. Consequently, anyone providing Health & Safety advice must ensure that whatever information they give is 100 % correct.

If you attend one of my training courses and ask me something I don't know, I will never fudge the answer. I will hold my hands up and say “Let me double check”, or “Let me go and do the research and get back to you...”

Sometimes there’s a perception or expectation that consultants are here to provide answers. After all, that’s what you hired a consultant to do! It’s quite rare to hear a consultant (or indeed, anyone in a leadership role) say “I don’t know, let me get back to you.”

Politicians and other ‘top brass’ may get away with fudged answers stated with false certainty, but in Health & Safety, the stakes are too high. Lives are at stake.

The stakes are high for the person providing the advice, but the HSE can come after you too. From your perspective, you have a responsibility to get what is called a ‘competent person’ to do your training. A ‘competent person’ will fully understand the nature of your working environment…

Had Experience, But Not Woodworking Experience…

Let me give you another example…

In February 2003, an employee at a woodworking firm sliced his hand open while operating a spindle-moulding machine. Colin Hobbs, the company’s Health & Safety Consultant, was prosecuted by the Health and Safety Executive (HSE) under Section 36 of the Health & Safety at Work Act 1974. 

The court found that Hobbs' risk assessment significantly lacked the required standards, especially by failing to identify the danger of the machine snatching at pieces of wood. 

Hobbs had extensive health and safety experience, but he wasn’t sufficiently knowledgeable about the woodworking machinery that contributed to the accident.

So why did this company decide to use him as their consultant? Well, we can only speculate. Perhaps price was a factor? Perhaps he came recommended by a contact in a different industry?

If you have an external consultant or company giving you Health & Safety advice, then they can be prosecuted for giving the wrong advice. But at the same time, you can be prosecuted for picking the wrong consultant or training provider! This may seem unfair, but to care for the welfare of your employees you have a responsibility to do due diligence. 

So yes, as a provider of Health & Safety advice, I am forever 36 years of age. You don’t have to be (although if you’re a director, see last week’s article on Section 37), but you do need to ensure that whoever you hire isn’t going to get you in trouble.

By the way, if you would like reputable help, SafetyNow is 10 years old in June. To celebrate, I’m offering 10% off all 2024 course bookings made before 30th June. You can browse all our courses at www.safety-now.co.uk.

Moira

P.S. What Really Happened With The Racking…

As you may have realised, the racking situation above was a true story, and I was the consultant in question! Except, the outcome above isn’t what happened…

How I actually responded was as follows:

I refused in writing - in the strongest possible terms - outlining the potential impacts for both me (prosecution under Section 36), for the company (potentially a huge fine), for the MD (prosecution under Section 37), and for the Site Manager (prosecution under Section 7). I told them I would cancel my contract if they went ahead with this.

The MD replied immediately… and a racking company was quickly appointed to do the job!

P.P.S. I publish these articles every two weeks. Join my free email list to make sure you never miss an update!