Working at height: reducing the toll

Employers' and workers' responsibilities

2 July 2019

‘Workers retain a duty to take reasonable care for the health and safety of themselves and others’

The Health and Safety Executive (HSE) public register of prosecutions shows that despite an overhaul of its working at height guidance in 2014, resulting in the publication of Working at height: A brief guide, falls from height remain one of the main causes of fatal accidents at work .

The Work at Height Regulations 2005 apply to all work where there might be a risk of a fall that is liable to cause personal injury. Since the introduction of these regulations, the UK has consistently had some of the lowest workplace fatality and serious injury rates in the EU. Data from the HSE, however, shows that 18% of those who died at work were as a result of a fall from height.

In 2018, an all-party parliamentary group (APPG) collected evidence from stakeholders in a bid to ‘understand the root causes and propose effective, sensible measures to reduce this toll’. The APPG published its report Staying Alive: preventing serious injury and fatalities while working at height in February this year, highlighting the inconsistency of safety regulations across the UK and calling for an intensive review of the construction industry’s work at height culture.

The key recommendations include improving the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR), reporting near misses and accidents that do not qualify for RIDDOR, and better training and education. Extending an equivalent system to Scotland’s Fatal Accident Inquiry process to the rest of the UK and the creation of a digital strategy to encourage investment in new technology were also recommended.

Under the current legislation, those organisations found to be breaching their health and safety obligations face criminal prosecution, with offenders liable for fines. Individuals can also face custodial sentences. However, incidents are often under-reported due to a fear of prosecution and its consequences.

Some agencies, including the Environment Agency, apply legally binding civil penalties for certain offences, and the APPG has called for a similar system to be introduced for work at height offences.

The public interest is often best served by a system that allows the regulator to achieve remediation or reparation rather than proceed to a prosecution, which may not actually deter others and could result in an organisation having an undeserved criminal record. Proportionality and transparency in any response is essential.

Recent corporate prosecutions following falls from height show significant sentences for both fatal and non-fatal incidents and provide a stark reminder that health and safety offences result from an organisation’s failure to manage its risks, not from proof that the offence caused actual harm. The known associated risks – death, physical or mental impairment and significantly reduced life expectancy – mean that these offences often fall into the highest category of harm, level A, under the relevant sentencing guideline, which is then used with the offender’s culpability, turnover, and the likelihood of harm occurring, to determine a starting point sentence.

However, workers cannot simply abdicate responsibility to their employers; they retain a duty to take reasonable care for the health and safety of themselves and others. Two cases provide a reminder: roof worker David Mulholland climbed up scaffolding to hammer in a steel beam without using the tower scaffolding; and scaffolder Terrance Murray was on top of scaffolding without adequate precautions. Both workers received fines and suspended prison sentences. In both cases, the employer was found to have taken reasonable steps to avoid working unsafely at height.

Reform of the Work at Height Regulations 2005 looks likely but, meanwhile, the message is clear: a cavalier attitude to risk will not be tolerated. The consequences for employers failing to meet the safety requirements are well documented, but workers should also bear in mind that taking unnecessary personal risk can have its own consequences.

Kevin Bridges is head of health and safety at Pinsent Masons

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