Legal questions: health and safety adviser risks

Health and safety - duty of care

5 June 2015

Kevin Bridges advises on the risks facing health and safety advisers in the construction industry

As a health and safety adviser in the construction industry, I work on various sites inspecting works. What risks do I face if anything goes wrong?

The legislative framework for health and safety in the UK is vast and it is crucial that you understand both your responsibilities as a health and safety adviser, and the legal and commercial risks that arise out of those responsibilities.

You will ordinarily provide your services in accordance with an agreed appointment, which constitutes the contract with your employer. This will usually specify both your responsibilities to the employer and your obligations as a health and safety adviser, and you therefore need to be familiar with what is required. For example, your contract may require you to carry out a certain number of risk assessments, prepare method statements, complete site investigations or deliver tool box talks.

As a health and safety adviser you also owe certain duties of care to those that may be affected by your acts or omissions

A failure to perform your obligations under your contract may result in a breach of contract, entitling your employer to terminate your appointment and recover damages from you. Where possible, you could seek to agree a limit or cap on liability or any other terms that could reduce a potential liability under the contract. There are, however, other types of liability to consider.

As a health and safety adviser you also owe certain duties of care to those that may be affected by your acts or omissions. If you have caused injury, or even the death of an individual and your act or omission is found to have been negligent, then the injured party (or their dependants) may be able to pursue a claim for compensation against you and/or your employer.

If it is determined that the breach of duty was so grossly negligent that you could be deemed to have disregarded the life of the deceased, then you could also face prosecution under criminal law, carrying with it a custodial sentence.

Criminal sanctions

In the UK, the general principles of health and safety law can be found in the Health and Safety at Work etc. Act 1974 (HSWA). Under the HSWA all employers and employees (and others) owe duties to ensure the health, safety and welfare of persons at work.

As a health and safety adviser you will be responsible for taking reasonable care for the health and safety of yourself and others that may be affected by your acts or omissions at work (section 7 of HSWA). A failure to do this will amount to a criminal offence, which may result in a number of sanctions including:

  • imprisonment of up to 2 years
  • an unlimited fine.

The grave consequence of failing to comply with health and safety obligations is highlighted in R v Sidebottom and Goulding. On 4 December 2014, Southwark Crown Court imposed an immediate custodial sentence on an external health and safety adviser following the death of a worker carrying out basement excavation works at a residential property in Fulham, south-west London.

The court found that the adviser had failed to adequately monitor the safety of the works, and in particular, had failed to identify that excavation works were not being carried out in accordance with the method statement. Conrad Sidebottom was found to be in breach of his duties under section 7 of HSWA, and gaoled for 9 months.

This is the first time an immediate custodial sentence has been imposed for a breach of section 7 HSWA, and serves as a warning to all health and safety advisers.

Finally, any conviction for a breach of health and safety law will carry with it a stigma that may have a negative impact on your future employment as a health and safety adviser.

Limiting the risks

There are certain steps that can be taken to help reduce risks:

  • Know your appointment/contract and make sure that you understand your obligations; e.g., what is required of you in relation to the production of method statements, risk assessments, etc.
  • Make sure that all documents (e.g. risk assessments and tool box talks) are tailored to the particular project you are working on. Avoid using pro formas or templates that may not address all risks on a specific project.
  • Keep good records, making sure you can evidence the standards of safety that you have employed at any
  • given time throughout the life of the project.
  • Be thorough when completing onsite inspections and record all of your findings and recommendations accurately, as well as taking a proactive approach and trying to identify all key issues.
  • Make sure you intervene if you see any unsafe working practices on site, even at the risk of delaying the project.

Kevin Bridges is a Partner at Pinsent Masons LLP and a Chartered Safety and Health Practitioner

Further information

This feature is taken from the RICS Construction journal (April/May 2015)