No ifs, no buts. If you run a business or are responsible for employees, customers or visitors to a place of work, then you have a duty of care to keep sites safe during winter weather. Even if no injury has occurred as a result of slips or trips in icy conditions, bosses are still at risk of prosecution under the new stricter enforcement of Health & Safety Executive (HSE) regulations.

Despite this, it’s likely that many people in this position may still not be fully aware of the extent of their responsibilities relating to clearing snow and ice. Research by the British Institute for Facilities Management found that almost a quarter of organisations do not have a winter maintenance plan in place – and of those that do, 26 per cent fail to review it annually.

Let’s look at how the HSE would consider this state of affairs: “Companies and individuals should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards.” Reported by the Manchester Evening News, this blunt statement from the HSE, reflects an increasingly tough new reality facing businesses today. In other words, when it comes to safety, it’s your neck on the line.

That Health and Safety Executive quote came from a story about a roofer charged with criminal negligence for failing to ensure safe working practices. When a photo from a concerned passerby showed him and a colleague working without scaffolding or edge protection, a successful case was brought. As the director of the roofing firm, the individual in question found himself with a six month suspended sentence and ordered to undertake 240 hours of unpaid work.

And although that case didn’t relate to winter weather, it shares the exact same legal context. The severity and nature of the sentencing is an important reminder that breaches of the Health and Safety at Work Act fall under criminal rather than civil law. As such individuals can still be liable even – as in the case of the roofing firm – when no harm has actually occurred.

According to the Health and Safety at Work Act, “an employee may commit an offence if he contravenes the general duties imposed [by relevant laws]… by failing to take reasonable care for the health and safety of himself and other persons who may be affected by their acts or omissions at work”. That bears repeating – it is the failure to take reasonable care that can result in a criminal charge – not just when something goes terribly wrong.

Businesses face a tougher climate Although the legislation has been in place from 1974, this issue has become even more critical for businesses to consider in recent years due to two significant developments.

The first of these relates to the recent removal of limits to fines imposed by magistrates courts. Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (effective as of March 2015) has increased the level of most fines available for magistrates’ courts. Where the maximum fine for most health and safety offences was previously set at £20,000, there is no limit.

The second key factor contributing to this newly hostile environment is the more commercial orientation of the HSE. Facing swingeing austerity era cuts to government funding, the HSE is now driven by aggressive commercial targets.

The importance of a proper plan and process

Given all this, it is important to understand what constitutes “reasonable care” when it comes to clearing snow and ice. There’s no simple answer to this as every business and every site presents different challenges. Ultimately, however, it comes down to putting in place adequate processes for risk assessment and developing and implementing an appropriate plan, the execution of which has to be meticulously recorded.

It is also vital to ensure that you keep any plans and processes under review to ensure they’re actually working. Like any aspect health and safety, best practice in winter maintenance involves a cultural step change and a continuous iterative process of improvement.

If you outsource your winter maintenance and gritting, then your contractor still must have reporting processes in place to effectively evidence their activity (which is key to demonstrating that reasonable care has been taken).

And, if a contractor apparently fails to show up on site, you are still responsible for providing a safe working environment. That would involve checking the safety of the site and then making a call to close off areas as needed until it is made safe. This checking and monitoring is made easier when using a contractor you can trust, supported by instant access to tracking and live reporting on portals and apps.

As a final point, always keep in mind that in the case of a prosecution, the search for culpability won’t be limited to the operatives on the ground. If your staff have been let down by poor planning, resourcing or training then it really could be your neck on the line.

GRITIT

Tel: 0800 0432 911

Email: info@gritit.com

www.gritit.com

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