One of the less sensational announcements within the March Budget related to the government’s aim of cutting so-called red tape and thereby helping small- and medium-sized businesses to avoid unnecessary costs. A particular target was the dreaded health and safety regime, which is one of those subjects that fills lawyers’ hearts with glee and most other people with dread. Under the changes to health and safety regulations announced in the Budget, there will no longer be automatic health and safety inspections for all businesses. Instead they will focus only on ’rogue employers’ and highrisk sectors such as construction a step that is predicted to reduce the number of inspections by at least a third. Common sense would suggest that the retailing of petroleum might also be considered to be a ’high risk’ activity, as indeed could any retail business that involves serving members of the public face-to-face.
Employer’s Health and Safety Policy
What may surprise some readers is that any business employing more than five staff must have a written health and safety policy document.
This must tell staff about the employer’s commitment to their health and safety, and should clearly say who does what, when and how, in relation to potential risks and actual events. Those forecourt traders who’ve worked on sites owned by the oil majors will be familiar with the massive lever-arch manuals issued by HR at head office. They tended to start with something pretty obvious "Petrol can be a very dangerous, highly inflammable and poisonous substance". And in the next 500 pages ran through every risk scenario that the writers could dream up and told you in detail how to cope with them. The intention being that even if you and everyone else on site suffered an excruciating death, at least nobody would be legally liable if all of the procedures had been followed.
That was all well and good in the days when your oil company-owned the site had whole teams of people to originate and maintain this material. All you had to do was to make sure that when they sent you the occasional updated chapters, you filed them in the right section of the manual, and you regularly reminded all employees to read it. But what if you’re now both the head office and HR department rolled into one? Sounds like another full-time job to add to your collection. The good news is that it doesn’t have to be very elaborate or difficult. In fact the government’s Health & Safety Executive (HSE) has produced a downloadable template, together with a specimen completed example, that you can use as the basis for your own written policy document, which includes a section for the all-important ’risk assessment’. The documentation is free, and available from the HSE website www.hse.gov.uk/simple-health-safety/index.htm.
Employer’s Liability Insurance
One topic related to health and safety is that of employer’s liability insurance the policy that virtually all employers must have in place. It’s the one you’ll be looking for if ever any of your employees are unfortunate enough to suffer an accident at work or injury through work. Quite apart from the fact that you could be personally taken to the cleaners by someone who does or used to work for you if you don’t have this protection, it’s also illegal not to have such a policy. And it must be with an insurer authorised by the Financial Services Authority (FSA). The minimum cover required by law is currently £5m, although most reputable insurers now tend to offer at least £10m as their basic level of cover.
The law also requires you to make the certificate of insurance clearly visible to all of your employees, and the certificate must state which businesses are covered, and the minimum level of cover.
An interesting facet of this insurance is that as far as any claims are concerned, the insurer cannot avoid paying out for them (if proven liable) simply on the basis that the employer has omitted to fulfil some responsibility on their own part. Now that may sound like the greatest get-out-of-jail-free-card you could ever receive, however there is a big but while the insurance company may have to pay out to your employees, they are able to sue you subsequently to recover the full or partial cost of the claim if you’ve failed to comply with the relevant health and safety requirements. So you’re still expected to fulfil your legal responsibilities. For example, you must carry out a risk assessment and take all reasonably practicable measures to protect your employees and report incidents.
A few final points to remember about employer’s liability insurance. Traditionally you were required to keep even the expired certificates as proof of this insurance (and that really did mean ’forever’) but that legal requirement was removed in 2008. However, employers are still strongly advised to keep a complete and permanent record of their employers’ liability insurance cover, because some industry- or occupation-linked diseases can appear decades after exposure. And former or current employees may decide to bring a claim against their employer for the period of exposure to the cause of their illness. In other words, it’s not just your current workers who might sue you, but someone who worked for you in the dim and distant past.
Failure to be insured can result in fines of up to £2,500 for any single day that you are uninsured, and failure to display a certificate of insurance, or to make one available for inspection by the HSE on request, can itself result in a fine of up to £1,000 per offence.
There’s a common perception that health and safety has to be cumbersome, restrictive and expensive. However, if you go back to first principles policy, risk assessment and insurance then it need not be a huge burden, and may well protect you from far greater costs in the long run.