Health and Safety Management Update
Management Regulations ACOP withdrawn
The Approved Code of Practice (ACOP) L21 Management of Health and Safety at Work Regulations 1999 Approved Code of Practice and Guidance was withdrawn on 31 July 2013. This ACOP accompanied the Management of Health and Safety at Work Regulations 1999 (MHSWR). However its removal has caused some ripples of unease in the safety world.
Consultation
In January 2013 the Health and Safety Executive (HSE) published the responses to its consultation CD241, Proposals to Review HSE’s Approved Codes of Practice. The consultative document related to proposals to revise, consolidate or withdraw 15 Approved Codes of Practice (ACOPs) by the end of 2013.
Of particular interest was the proposal to withdraw HSE document L21, the Approved Code of Practice to the Management of Health and Safety at Work Regulations 1999 and replace it with more specific guidance. What will the change make? Is it significant?
The public response
The response to CD241 indicated support for most of the HSE’s proposals. A huge 93% of respondents supported revision of L24, with 88% of respondents agreeing to the consolidation of L127 and L143 and 90% supporting the proposed changes to the DSEAR ACOPs.
However, there was not majority support for the removal of L21, the ACOP that accompanies the Management of Health and Safety at Work Regulations 1999 (“the Management Regulations”). In fact, 52% of respondents opposed the removal of L21. Those who raised objections were mostly concerned about the change in legal status from an ACOP to guidance.
Despite this, the HSE went ahead with the removal of L21, stating:
“No new issues have been raised by the consultation responses. The negative impacts raised by the respondents will be addressed by the actions taken to replace the ACOP with the suite of guidance. A communications handling plan will be drawn up to ensure that the information/guidance provided by the ACOP will not be lost and will be covered by guidance which is easier to use. It will also be made clear that the legal requirements have not and are not changing; these changes will make the requirements easier to understand and therefore assist compliance.”
The nature of ACOPs
ACOPs are introduced by virtue of s.16 of the Health and Safety at Work, etc Act 1974 (HSWA), which conferred the right for the HSE to introduce Codes of Practice for the purpose of providing practical guidance with respect to the general requirements of the HSWA and regulations made under the Act.
ACOPs have a special legal status. They require the approval of the Secretary of State before they can be introduced. ACOPs are not a legal requirement themselves, but in criminal proceedings they are admissible as evidence, and failure to observe an ACOP can be used to prove a breach of those regulations it supports. This special legal status works both ways. It helps enforcers to secure conviction in court but it also helps those trying to comply with the regulations, since they know that if they comply with the ACOP they will “automatically” comply with the regulations.
Published guidance does not have the same legal status as an ACOP. Evidence of adherence to such guidance is not necessarily admissible in criminal proceedings and compliance with guidance does not mean compliance with the regulations.
A dilution of the law
Few people would argue with the general principle of simplification and rationalisation of legal requirements along with ACOPs. It makes sense to make it as easy as possible to comply with the law, and for practical guidance such as ACOPs to be as easy to follow as possible. However, the removal of ACOP L21 may have a significant and insidious impact.
In a hierarchical sense, the Management Regulations are the most significant and important health and safety legal requirements after the HSWA. ACOP L21, which supported the Management Regulations, gave important practical guidance on key health and safety issues including risk assessment, arrangements for the effective management of health and safety, the appointment of a competent person (safety advisor) and other issues that are fundamental to effective health and safety management. While the new guidance to be published by the HSE to replace the ACOP may be comprehensive, it simply will not have the same legal status as an ACOP. To that extent, we are seeing a dilution of the law.
L21 not only gives practical advice on how to comply with the Management Regulations, it also gives peace of mind and a clear direction to those responsible for compliance. The removal of L21 will also remove this surety.
The loss of L21 may also be a hindrance to the enforcing agencies. The legal status of L21 works for them in helping to prove non-compliance with the Management Regulations. The use of guidance notes in criminal proceedings is less clear-cut and may make convictions more difficult.
ACOP L21 was fundamental to health and safety management, providing critical guidance to employers and others and had a clear legal status. As such, its removal is a potentially negative and detrimental step.
Revised guidance for safety management systems
The HSE has already launched newly revised guidance which it says will help make it easier for larger organisations and businesses to understand how to manage health and safety.
The guidance in Successful Health and Safety Management (HSG65), which is aimed at business leaders, owners, directors, trustees and line managers, has “completely refreshed and enhanced” and the information is now available on its microsite on ‘Managing for health and safety’.
The guidance is split into four key sections as follows:
- Core elements of managing for health and safety
- Doing what is needed
- Delivering effective arrangements
- Resources.
The HSE says the information will also be of value to workers and their representatives while the third section will be of great help to those responsible for putting in place or overseeing their organisation’s arrangements for health and safety, including health and safety practitioners and training providers.
The new guidance is said to represent a move away by the HSE from using the Policy, Organising, Planning, Measuring performance, Auditing and Review (POPMAR) model of managing health and safety to a “Plan, Do, Check, Act” approach. The latter approach is intended to achieve a better balance between the systems and behavioural aspects of management, as well as treat health and safety management as an integral part of good management, rather than as a stand-alone system.
Clarifying the legal status of the guidance, Andrew Cottam, HSE’s lead author of Managing for Health and Safety said, “Following the guidance is not compulsory, unless specifically stated, and businesses are free to take other action, but if they do follow the guidance they will normally be doing enough to comply with the law.”
A new PDF/hard copy edition of the publication HSG65 on health and safety management is currently being prepared.
To view the new HSG 65 guidance, go to www.hse.gov.uk/managing/index.htm.