FMJ.CO.UK WINTER PREP FOCUS
DECEMBER/JANUARY 2019 41
SLIPPERY SLOPE
No ifs, no buts. If you run a business or are
responsible for employees, customers or
visitors at a place of work, then you have a duty
of care to keep sites safe during winter weather.
Even if no injury has occurred as a result of slips
or trips in icy conditions, bosses are still at risk of
prosecution under the new stricter enforcement of
Health and Safety Executive (HSE) regulations.
Despite this, it’s likely that many people in this
position may still not be fully aware of the extent of
their responsibilities relating to clearing snow and
ice. Research by the British Institute for Facilities
Management (now IWFM) found that almost a quarter
of organisations do not have a winter maintenance
plan in place – and of those that do, 26 per cent fail to
review it annually.
This is what the HSE has to say: “Companies and
individuals should be aware that HSE will not hesitate
to take appropriate enforcement action against those
that fall below the required standards.” Reported by
the Manchester Evening News, this blunt statement
reflects an increasingly tough new reality facing
businesses today: when it comes to safety, it’s your
neck on the line.
That HSE quote came from a story about a roofer
charged with criminal negligence for failing to
ensure safe working practices. When a photo from
a concerned passer-by showed him and a colleague
working without sca olding or edge protection, a
successful case was brought. As the director of the
roofing firm, the individual in question found himself
with a six-month suspended sentence and ordered to
undertake 240 hours of unpaid work.
Although that case didn’t relate to winter weather,
it shares the same legal context. The severity of the
sentencing is an important reminder that breaches of
the Health and Safety at Work Act fall under criminal
rather than civil law. As such, individuals can still be
liable even – as in the case of the roofing firm – when
no harm has actually occurred.
According to the Health and Safety at Work Act, “An
employee may commit an o ence if he contravenes
the general duties imposed by relevant laws… by
failing to take reasonable care for the health and
safety of himself and other persons who may be
a ected by their acts or omissions at work.” That
bears repeating – it is the failure to take reasonable
care that can result in a criminal charge, not just
when something goes terribly wrong.
A TOUGHER CLIMATE
Although the legislation has been in place since
1974, this issue has become even more critical for
businesses in recent years due to two significant
developments: a change in the guidelines for
enforcing the law, and a change at the HSE itself.
The first of these relates to the recent removal
of limits to fines imposed by magistrates’ courts.
Section 85 of the Legal Aid, Sentencing and
Punishment of O enders Act 2012 (e ective as of
March 2015) has increased the level of most fines
available to magistrates’ courts. Where the maximum
fine for most health and safety o ences was
previously set at £20,000, now there is no limit.
The second factor is the more commercial
orientation of the HSE. Facing swingeing austerity-era
cuts to government funding, the HSE is now driven by
aggressive commercial targets. Combined with the
tougher legal framework, this shi in orientation has
made a stark di erence.
According to consultants Willis Towers Watson,
during 2014/15 – the last full year prior to the
introduction of the new sentencing guidelines – the
HSE “secured fines totalling £16.5 million, an average
of £25,384.61 per case”. Yet figures for the last year
reveal how things have changed. For example, in
April 2017 alone fines of £8,369,333 were secured
with an average fine per case of £398,539.66, which
Willis Towers Watson notes is an increase of 1,570
per cent.
With fines of this size, it is clear that the
consequences of ‘failing to take reasonable care’
could have a catastrophic impact on both the
individuals deemed responsible and on the bottom
line of the business.
REASONABLE CARE
Given all this, it is important to understand what
constitutes ‘reasonable care’ when it comes to
clearing snow and ice. There’s no simple answer
to this as every business and every site presents
di erent challenges. Ultimately, it comes down
to putting in place adequate processes for risk
assessment and developing and implementing
an appropriate plan, details of which have to be
meticulously recorded.
It’s also vital to ensure that you keep any plans and
processes under review to ensure they’re actually
working. Like any aspect of health and safety, best
practice in winter maintenance involves a cultural
step change and a continuous iterative process of
improvement. So, while purchasing top-of-the-line
equipment or vehicles for gritting is laudable, failing
to maintain machinery year round – particularly
when corrosive salt is involved – would leave you
wanting when the bad weather arrives.
Major incidents may have significant impacts, and it
can o en be simple component failures that instigate
them. For example, a warning beacon failure may
result in someone being hit by a reversing vehicle.
Similarly, it may be e ective to deploy existing sta
to take on gritting tasks, but those employees have
to be adequately trained and employers have a duty
of care to assess the extra risks they will face. Any
e ective plan also needs to take into account what
happens when the sta trained for clearing snow and
ice happen to be o sick.
Let’s consider a hypothetical example. Suppose you
have directed an employee to carry out gritting, but
they happen to be wearing inadequate footwear, slip
and bang their head. In this case, the culpability could
be greatest for you as the person in charge; even if all
the systems for correct footwear and PPE have been
documented, what use is that if the information has
not been communicated to the employee?
It’s not just about planning and training –
monitoring is also crucial. The HSE would look for
evidence of directives from senior management or
the board on safety policies and how rigorously these
were followed through and checked. As these parties
would be expected to be aware of these policies, they
too could be seen to be in neglect of their duties.
Naturally, many of these practical matters can be
addressed by outsourcing winter maintenance to a
third-party contractor. But this will not remove the
ultimate responsibility of the business to ensure this
provider is undertaking work in a responsible fashion.
This could involve taking steps to confirm that
the contractor has reporting processes in place to
e ectively evidence their activity (which is key to
demonstrating that reasonable care has been taken).
As a final point, always keep in mind that in the case
of a prosecution, the search for culpability won’t be
limited to the operatives on the ground. If your sta
have been let down by poor planning, resourcing or
training, then it really could be your neck on the line.
When clearing snow and ice from the organisation’s premises,
it’s everyone’s neck on the line should something go wrong,
warns winter maintenance specialist Gritit