Employees must comply with work at height safety duties too

ANALYSIS: Two recent cases involving breaches of working at height regulations offer a clear reminder to workers of their own duties to take reasonable care for the health and safety of themselves and others.

Each of these cases involved a worker who was photographed on top of scaffolding without adequate precautions, such as edge protection or a harness, in place. Both of these workers received fines and hefty suspended prison sentences. In both of these cases no action was taken against the employer, which was found to have taken reasonable steps to avoid working unsafely at height.

In 2014 Work at Height guidance was overhauled with the hope that the incidence of falls could be reduced “by giving simple and clear advice and tackling the myths that can confuse employers”. Despite this, falls from height and falling objects remain one of the biggest causes of fatal accidents at work and particularly in the construction industry. They account for 49% of total fatal accidents according to Health and Safety Executive (HSE) statistics.

The matter of laws and guidance is currently being revisited by an all-party parliamentary group (APPG), which recently began a call for evidence aiming to “understand the root causes and propose effective, sensible measures to reduce this toll”. The APPG will then produce a report with recommendations on how the frequency of serious injuries and fatalities among those working at height can be reduced. It will also cover whether the existing Work at Height Regulations sufficiently protects workers.


Workers ‘cutting corners’

Last month, Manchester scaffolder Terrance Murray pled guilty to breaching section 7(a) of the 1974 Health and Safety at Work Act. Murray had been photographed by a member of the public working on top of a scaffold in central Manchester at a height of 13-18 metres without edge protection or a harness. As a result of his actions he was sentenced to 26 weeks imprisonment, suspended for one year, and 100 hours of community service as well as costs of £500, and a victim surcharge of £115.

Interestingly, an HSE investigation concluded that Murray’s employer had taken all reasonable steps to reduce the risk of any of its employees falling from height. He had been well trained and given all of the correct personal protective equipment to carry out his job safely. Therefore, his employer was not included in the prosecution.

This is an important reminder to all employees working within the construction industry to take reasonable care of their own health and safety.


Risk of harm under the Sentencing Guidelines

Although the 2005 Work at Height Regulations create a distinct regulatory regime for working at height, prosecutions are frequently brought under the more general HSWA or the Construction (Design and Management) Regulations. Recent corporate prosecutions show significant sentences for both fatal and non-fatal incidents, including the 2016 prosecutions of both Tesco Stores Ltd and Tesco Maintenance Ltd for an incident in which an employee fell 30 feet through a skylight but suffered only minor injuries. The companied were fined £200,000 and £300,000 respectively, plus costs.

Fines of this nature remind us that health and safety offences are concerned with failures to manage risks, and do not require proof that the offence caused actual harm. The known risks of working at height means that these offences will almost always fall into the highest ‘level A’ category of harm.