Jackie Gawen, Director of PRIME Systems and Chiltern Consulting explains why having written Risk Assessments is key, the consequences if you don’t risk assess and how to carry them out
Requirements
The requirement to carry out Risk Assessments is a legal duty placed on business owners/managers by the Management of Health and Safety Regulations. These Regulations have been in place for more than 25 years.
The Management Regulations require that the risks posed by all aspects of the running of a business are examined. It should, however, be noted that as well as the general requirements expressed in the Management Regulations, other sets of safety regulations deal with more particular or higher risks and also explicitly specify the requirement for a detailed Risk Assessment. The most common ones include:
- Legionella
- Fire
- Asbestos (through a management survey)
- Hazardous chemicals
Where five or more staff are employed within a business (including family members), the Risk Assessment must be in writing. Although, there is no legal requirement for a business with fewer staff to write down their assessment, it would, in our view, be difficult to present an effective defence in any subsequent legal proceedings in the absence of a written Risk Assessment.
Risk Assessments will routinely be requested in criminal hearings (a Health and Safety at work etc. Act prosecution) as well as in any civil (insurance) claim. Our advice is for all businesses to record the findings of any Risk Assessment.
Consequences
The introduction of the Sentencing Guidelines in February 2016 has raised the level of fines unrecognisably, largely because the starting point is related to a company’s turnover. Fines increase from the starting point for not acting on previous information/incidents, blatant disregard for safety and a poor previous history. However, fines may be reduced for the opposite behaviours.
Now, the simple failure to carry out a Risk Assessment could see an unlimited fine against the company in either the magistrates’ court or the Crown Court. Importantly, there could also be a personal prosecution under the same Regulations. The same level of fine can be imposed against an individual and they could receive a custodial sentence of up to six months in the magistrates’ court or up for two years in Crown Court.
Whilst it is difficult to see the failure to carry out a Risk Assessment attracting such harsh penalties in their own right, if the worst happens and a fatality or life-changing injury occurs because of a failure to identify and control a significant risk, it is unlikely that the enforcement authorities would not lay charges on the more significant offences of failing to look after the safety of either an employee or a member of the public – both of which are offences under the main Health and Safety at Work etc. Act.
Common insured risks
Recent analysis of claims across several sectors of the hospitality sector has dispelled the myth that exposure to liability risks applies only to large businesses with central facilities such as bars, clubs and swimming pools. The reality is that the range of facilities does not influence the likelihood of claims being made, as much as the nature of business visitors. Day visitors, make the most public liability claims. In addition, an increasing number of claims are made by contractors
The areas of businesses from which the majority of public liability claims are generated are those which are common to virtually every business, i.e. the general environment, roads, pathways, steps play areas and shower and toilet blocks. It is often the simplest risks that are overlooked as businesses try to identify ‘bigger’ risks elsewhere.
From an employer’s liability perspective, in addition to the common slip and trip incidents, there are also liabilities that arise from work tasks – the most common being back injuries through poor lifting techniques. The impact on a business following a poor claims experience is clear – as costs to insurers increase, so too will premiums to businesses.
It is essential insurers are provided with every opportunity to successfully defend claims to keep premiums to a minimum. Written Risk Assessments and Safety Policies are essential to the defence of such claims.
A claim will only be successful if negligence can be proven. Often, insurers are informed that corrective actions have been taken by a business but cannot prove this, as no record has been made and hence no evidence exists. The absence of a written record jeopardises the successful defence of a claim and leads to liability being found against the business.
What is Risk Assessment?
A Risk Assessment is a thorough look at what a business provides for customers and what work tasks are carried out by staff. The assessment is, in essence, a judgement as to whether any aspect of providing or carrying out either of these two areas could cause harm to anyone and, most importantly, what is in place to prevent these risks being realised. An acceptable safety management system can only be deemed in place if effective measures and a system of checks formed from Risk Assessments are documented.
What should be risk assessed?
Risk Assessments need to be carried out for:
- All customer activities on the business (e.g. sports activities)
- All public buildings on the business (e.g. bar area)
- All workplaces (e.g. maintenance workshops, reception buildings, etc)
- Specific work tasks (e.g. strimming)
Risk Assessments need to be reviewed regularly, (not necessarily rewritten), to ensure that nothing has changed and that the content of the Risk Assessment is accurate. We cannot emphasise enough that producing an outdated Risk Assessment to an officer investigating an incident will set alarm bells ringing.
We suggest reviews take place at least annually and more frequently when there are any changes to a work process, such as changing the access to a cellar, providing new work equipment, or after an accident has occurred.
How to carry out a Risk Assessment
There are five key steps to be taken:
- Look for what might cause harm
- Decide who might be harmed and how
- Evaluate the risks and decide whether existing precautions are adequate or whether more needs to be done
- Record the findings
- Review the assessment and revise if necessary
You can see details on the Prime Risk Assessment application here https://www.prime-systems.net/applications/risk-assessments/ and find out how it could help you manage your risk assessment requirements.
Look out for our next Risk Assessment article coming soon which details how the Prime Risk Assessment application can help businesses implement their Risk Assessments.
Further advice and assistance with Risk Assessments is also available from Chiltern Consulting on 01494 778499.
