Just a week after I blogged about the progress the UK’s Health and Safety Executive was making on implementing the Lofstedt and Young recommendations on reforming health and safety legislation comes news of the most significant changes yet. The HSE has announced a review of 15 Approved Codes of Practice (ACoPs) that will be revised, consolidated, or withdrawn, and another 15 that may be subject to minor changes.
Among this list is the ACoP supporting the cornerstone of health and safety management, the Management of Health and Safety at Work Regulations (MHSWR). As such the changes will touch every employer and safety practitioner in the land. To be clear this doesn’t mean the obligations set out in the regulations themselves will be changed, it will simply be a change in the method of explaining them to those with responsibility for carrying them out.
At present the MHSWR is supported by both an ACoP and guidance – each providing clarification on the intention of the regulation. Helpfully these are contained in a single document (L21) with information presented side by side. However the nuances of the different legal status of ACoPs (which set out the way a duty holder can be sure to be compliant) and guidance (which presents one way of complying with the law) is not always clear. For instance compare the wording and phraseology for regulation 6 regarding health surveillance. The regulation states:
Every employer shall ensure that his employees are provided with such health surveillance as is appropriate having regard to the risks to their health and safety which are identified by the assessment.
The ACoP then elaborates on this, particularly regarding risk assessment:
The risk assessment will identify circumstances in which health surveillance is required by specific health and safety regulations e.g. COSHH. Health surveillance should also be introduced where the assessment shows the following criteria to apply…
This is then supported by the guidance:
Where appropriate, health surveillance may also involve one or more health surveillance procedures depending on suitability in the circumstances [list provided in footnote]. Such procedures can include…
Whilst there’s nothing technically wrong with this information its presentation together with the different legal positions creates a situation that is potentially confusing for employers. As a result the HSE plans to scrap the ACoP and replace it with more structured guidance that makes it clearer to employers specifically what they need to do to comply with the law. The new guidance will be based around the established principles of health and safety such as five steps to risk assessment.
I’ve always argued that rather than needing an in-depth understanding of the law it is more important for employers to understand what they need to do to comply with it. On that basis these proposed changes are to be welcomed, although as always the proof will be in the pudding.