Last reviewed 20 February 2012

In this article, Robert Spicer looks at how the proposed simplification of health and safety legislation is likely to affect schools, particularly with regard to carrying out risk assessments.

Interpretation — or mis-interpretation?

In November 2011, Professor Ragnar Löfstedt’s long-awaited review, Reclaiming Health and Safety for All: An Independent Review of Health and Safety Legislation (the Löfstedt Report), was published. It formed part of the Government’s wider reform of health and safety legislation and the so-called compensation culture. It examined the scope for reducing health and safety legislation, while maintaining the progress which has been made in improving health and safety outcomes. The Government subsequently announced that a number of changes would be made following the report’s recommendations.

The overall view of the Löfstedt Report was that the problem was less with the regulations themselves than in the way in which they are “interpreted and applied”. This was attributed to three causes.

  • Inconsistent enforcement by regulators.

  • Third parties promoting the generation of “unnecessary paperwork and a focus on health and safety activities that go above and beyond the regulatory requirements”.

  • Confusion caused by the legislation (via its structure, lack of clarity or apparent duplication).

A culture of risk aversion

This confusion can be heightened for schools where compliance with risk assessment is concerned. This is an area where the legislation receives regular media attention for being cumbersome and restrictive — the so-called health and safety culture. However, it is arguable that excessive risk aversion is the real culprit where the stifling of growth or activities in this area is concerned. It has led to changes to the activities available in schools, such as field trips and science lessons, and to a certain extent services run by local authorities (LAs) as well.

Understanding and applying risk assessment legislation can be both challenging and burdensome. As Professor Löfstedt said: “… there are instances where regulations designed to address real risks are being extended to cover trivial ones, whilst the requirement to carry out a risk assessment has turned into a bureaucratic nightmare …”.

Education is, therefore, clearly a sector that could potentially benefit from clarification and simplification. Health and safety in this area is obviously important, both to protect children and employees. However, as Professor Löfstedt comments: “Care should be taken to ensure that the regulations do not prevent children from being exposed to new or exciting activities that contribute to their education and development. The benefits of such activities should not be disregarded as a result of a narrow focus on minimising risk”.

However, despite acknowledging how unique schools are, as places to educate children and as workplaces, Professor Löfstedt chose to defer to guidance already in place: namely that produced following Lord Young’s review into health and safety law. The revised guidance Health and Safety: Department for Education Advice on Legal Duties and Powers for Local Authorities, Head Teachers, Staff and Governing Bodies was sent to schools and included a generic consent form for them. The Health and Safety Executive has also issued a restatement of the law, tackling issues regarding the myths of bureaucracy and prosecution (School Trips and Outdoor Learning Activities: Tackling the Health and Safety Myths). Professor Löfstedt concluded that “these changes should enable schools to apply health and safety regulations to their particular circumstances more easily”.

Risk assessment — case law and legal interpretation

The following selection of recently decided cases illustrates how the concept of risk assessment is applied, and the need for legal interpretation, in the schools sector.

Hufton v Somerset County Council [2011], EWCA Civ 789

H was a 15-year-old pupil at a school for which Somerset County Council was responsible. She slipped on a wet floor in the school hall and suffered a knee injury. She claimed compensation for her injury on the basis that on a rainy day the school staff had negligently allowed pupils to walk through fire doors into the hall where they deposited water. On behalf of the school, it was argued that pupils were not allowed to enter the hall directly on wet days. A sign had been placed by the fire doors, instructing prefects to prevent pupils from entering. Initially, the judge found in favour of the school. He stated that the school’s procedures had been reasonable and appropriate and that the incident had been an unfortunate accident. H appealed to the Court of Appeal. It was argued on her behalf that the school had no proper system in place to prevent the floor of the hall becoming wet, or to clear up any water.

The Court of Appeal made the following points.

  • The appeal would be dismissed.

  • The school’s risk assessment was reasonable. It identified appropriate control measures and its recommendations had been put into effect.

  • If it rained during a break, there would be a delay before a wet weather sign was put up near the fire doors, and a small amount of water could be deposited on the floor during that delay. On the day of the incident, this is probably what had happened.

  • The law did not require occupiers of premises to take measures which would absolutely prevent any accident from ever occurring. All that was required was the exercise of reasonable care.

  • The judge had initially made primary findings of fact and had evaluated those facts. His evaluation had not been wrong and there was no reason to interfere with it.

  • The evidence had not shown that liquid gathering on the floor was a frequent problem or that there should be a special system for dealing with it.

  • It was not realistic to expect the school to have a system in place for spotting and removing a small area of water during the brief period of time between the start of rain and the production of wet weather signs.

Wallace v Glasgow City Council [2011] CSIH 57

W was a clerical assistant employed at a school operated by Glasgow City Council (GCC). W was injured when she stood on the toilet bowl in the school’s staff toilet to open a high window which she could not reach from the floor. The toilet bowl collapsed. No pole was readily available to open the window, although one was available on request from the school janitor’s office. W claimed compensation for her injury. At first instance, her claim succeeded, subject to a 50% reduction for contributory negligence. The court stated that although no risk assessment had been carried out in respect of the toilet bowl or the window, it was unlikely that a suitable and sufficient risk assessment would have disclosed the specific risk in this case, given the safe alternative choices of finding the janitor or leaving the window closed. GCC appealed.

The Scottish court made the following points.

  • It was wholly foreseeable that a person who made use of the toilet facilities would be anxious to ventilate them after use.

  • It was clear from W’s evidence that if a proper risk assessment had been carried out, the absence of a window pole, of the same height as the window, would have exposed a significant risk to persons seeking to open the window in an unsafe manner. GCC was liable.

  • W had been contributorily negligent: hers had been a deliberate act which she had acknowledged as dangerous and which she had carried out on a number of previous occasions.

O’Neill v Buckinghamshire County Council [2010] UKEAT/0020/09

O, a primary school teacher, was the subject of disciplinary proceedings. During these proceedings, she notified her employers that she was pregnant. The disciplinary procedure was subsequently delayed because of her maternity and sick leave. She eventually resigned and complained of constructive dismissal and pregnancy-related sex discrimination. Specifically, she complained that the employers had failed to carry out a risk assessment after she had informed them of her pregnancy.

Regulation 16 of the Management of Health and Safety at Work Regulations 1999 requires that, if employers employ a woman of child-bearing age, and the work could involve risk to the health and safety of a new or expectant mother from any processes, working conditions, or physical, chemical or biological agents, they are obliged to conduct an assessment of the risks to pregnant employees.

On O’s behalf, it was argued that the employers were under a general obligation to carry out a risk assessment for pregnant workers.

The employment appeal tribunal made the following points.

  • The duty to carry out a risk assessment for pregnant workers only arises where the:

    • employee has notified the employer in writing that she is pregnant

    • work is of a kind which could involve a risk of harm or danger to the health and safety of the mother or the baby

    • risk arises from processes, working conditions or physical, chemical or biological agents in the workplace.

  • There is no general obligation to carry out a risk assessment for a pregnant employee.

  • When the duty does arise, the employer does not have to hold a meeting with the employee.

  • The employer is under a duty to inform the employee of the results of the assessment, and to provide the employee with relevant and comprehensive information about the risks.

As far as is reasonably practicable

The phrase “as far as is reasonably practicable” is one which causes difficulty in understanding for lawyers and non-lawyers alike. Professor Löfstedt noted a number of offences which imposed strict liability, ie “making [employers] legally responsible for the damage and loss caused by their acts and omissions regardless of their culpability”, and argued that this went against the goal of a common sense approach to safety. Consequently, for as many strict liability offences as possible, the phrase “as far as is reasonably practicable” will be inserted.

This phrase was advocated by Professor Löfstedt as appropriate: “the concept of reasonable practicability is widely supported and assumed to underpin health and safety regulation”. However, reasonable practicability, while widely used, is not necessarily understood. It is, of course, very familiar to larger businesses. Yet to schools, which may not have anyone onsite with sufficient understanding of health and safety law to determine what is reasonably practicable, another layer of uncertainty will be added — surely an unintended consequence.

After Löfstedt — a brighter future?

The Löfstedt Report is to be applauded for its common sense approach. However, whether it will actually change the practical implementation of health and safety law, particularly in schools, remains to be seen.

Although the Government aims to reduce health and safety legislation by between 35% and 50%, the areas which are particularly difficult will not be subject to any significant reduction. Instead of removal, which most respondents argued for, they will actually have more to consider, albeit in a simplified version.

The Government announced that it will work more closely with LAs to improve the quality of training, and that, by summer 2012, the Adventure Activities Licensing Authority, and associated functions, will be abolished. Aside from these core changes, the other main difference is more guidance via Approved Codes of Practice. New and improved guidance and Approved Codes of Practice may well be as helpful as envisaged. However, government guidance is produced with a view to applying to a wide range of situations and interpretation will normally be required to make the guidance fit the legislation. Unless this guidance is comprehensive, the Government is at real risk of perpetuating the problem of interpretation highlighted by Professor Löfstedt. The only difference would be that the confusion would be caused by the guidance and not the law.

One hopes that this is an inherently sceptical view of the post-Löfstedt future. With the Prime Minister, however, seeking attack on the “monster” of health and safety law, the future may not, at the moment, look any brighter.