A lot of people feel that health and safety compliance is far too rigorous and smacks of dictatorship!
Whilst the legislation is vast, the words sometimes incomprehensible and the perceived costs of covering every eventuality are a burden, it doesn’t have to be that way.
S40 of the Health & Safety at Work Act 1974, says….
In any proceedings for an offence…. consisting of a failure to comply with a duty or requirement to do something so far as is practicable, or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove that it was not practicable, or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was used to satisfy the duty or requirement.
The core is the concept of “reasonably practicable” which involves making sure that a risk has been reduced as low as reasonably practicable taking into consideration the ‘sacrifice’ needed to further reduce it.
The decision is weighted in favour of health and safety because the presumption is that the duty-holder should implement the risk reduction measures. The duty-holder must therefore be able to show that the sacrifice would be grossly disproportionate to the benefits of risk reduction that would be achieved.
Factors come into play such as:
Comparing the costs of having to purchase expensive equipment, set against the remote chances of a one-off accident or incident happening, or
That the daily expense and supervision time required to ensure that, for example, employees wear ear defenders, set against a chance of someone developing hearing loss at some time in the future.
Therefore, the process is not one of balancing the costs and benefits of measures but, rather, of adopting measures except where they are ruled out because they involve grossly disproportionate sacrifices.
It requires judgment. There is no simple formula for computing whether not doing something can be said to be reasonably impractical.
So, where an organisation has to do something to comply with the absolute letter of the law but the risk in their situation is low and the sacrifice is high, there is an argument not to have to do it.
However, health and safety law is the only one in this country where, if the HSE can show that there was a risk of any sort, the burden of proof switches from the prosecution to prove a case to the defendant to prove their innocence.
Therefore, if you are in a situation where, to do something to reduce a low risk, is going to mean a high sacrifice, then you may be able to argue that case if anything should happen whereby the HSE decide to investigate or even prosecute.
There are many Health & Safety Advisers around but, unfortunately many of these are what we call ‘health and safety policemen’ and will try to get you to comply with every item of legislation. Our advice is simple – find one who looks at the subject in a business-like and pragmatic way.