Did the conclusion reached by Professor Ragnar in his review of health and safety legislation, that there is room for improving the HSE’s Approved Codes of Practice (ACoP) as “some are out-of-date and some too lengthy, technical and complex”, ring true for you, as it did for me?
Yes? Well then, like me you too would have been disappointed…
Instead of following Löfstedt’s recommendation to review the Management of Health and Safety at Work Regulations (MHSWR) Approved Code of Practice (ACoP), the HSE board have decided to abolish it altogether in favour of a new suite of lower level guidance. And they have made this decision following a public consultation exercise in which the majority of respondents, including most of the major trade associations, rejected this idea.
I, and many others, have been vocal in predicting problems with this decision – one of which I’ll come to. But first, it might help to think about the role which ACoPs in general were intended to play – and specifically the MHSWR ACoP.
What are ACoPs and why do we need them?
When the Health and Safety at Work Act was introduced in 1974, due to the formal way in which health and safety law has to be written, it was decided to create ACoPs alongside specific regulations made under the Act in order to give authoritative, good practice advice to employers on how to comply with the requirements of the law. ACoPs were intended to aid legal compliance and give practical advice and examples. However, while most have been valuable, some like the MHSWR ACoP have not been as clear as they could have been.
Although they do not have the same legal force as regulations themselves, ACoPs do have a special legal status so that, if followed, employers can be sure they are meeting their obligations. The suite of guidance the HSE is proposing should replace the MHSWR ACoP won’t have the same legal weight, and will include a disclaimer about ‘only being guidance. ’ My worry is that it will be seen as ‘nice to have’ advice and will thus have much less impact.
Let’s look at an example. The duty to investigate accidents, incidents and work-related ill health cases. This is just as crucial as the duty to conduct ‘suitable and sufficient’ risk assessments. In practice both go hand in hand. However, unlike risk assessment, investigation is not a specific legal requirement and the MHSWR only implies a ‘duty’ to investigate. It is the ACoP that elaborates this implied duty further and establishes that employers must undertake suitable investigations whenever necessary. In future, if we have to rely instead on basic and loose worded documents, internal incident reporting and investigation may come to be seen as purely optional and not something actually required by law.
What’s the answer?
Although there is now a lot of guidance from various sources on health and safety management, what small businesses in particular really need is a set of risk management principles that are easy to understand and interpret but which still hold authority. I have argued that instead of ditching it, HSE should have agreed to produce a simplified and updated version of the MHSW ACoP, an equivalent for the workplace of the “Highway Code” that could be easily scaleable to any organisation’s circumstances, including size, complexity and level of risk etc. Such a document would be very useful when training managers, for example.
Reflecting widespread concern in the health and safety community the Institution of Occupational Safety and Health (IOSH) has also come out in opposition to abolition and has stated;
“this would be a mistake that could potentially cost lives and we strongly urge the DWP to improve and retain what we already have.”
They have launched an e-petition to ‘save’ the ACoP. 100,000 signatures are needed to trigger consideration of this and a possible debate in Parliament.
We will obviously be promoting the new guidance but I would be interested to hear views about this issue and whether the absence of the ACoP helps or hinders understanding what needs to be done to create robust health and safety management arrangements, especially in SMEs.