Road Legal

The general requirement for risk assessments is contained in the Management of Health and Safety at Work Regulations 1999 (Management Regulations), Regulation 3. Other regulations exist which require more specific types of risk assessment, for example:

• the  Control of Substances Hazardous to Health Regulations 2002 (COSHH),
• the Manual Handling Operations Regulations 1992,
• the Control of Noise at Work Regulations 2005,
• and the Personal Protective Equipment at Work Regulations 1992.

What is a risk assessment?

Very generally, a risk assessment is a  careful examination of what, in your work, could cause harm to you or to other people, so that you can weigh up whether you have taken enough precautions or whether you should do more to prevent harm.

It may be useful to remember that the definition of risk is the likelihood of harm arising from a hazard and a hazard is the potential for harm arising. So, for example: unloading involves a hazard of the load striking an individual.  The extent of the risk might depend on factors such as the nature of the work being carried out, the weight of the load which might fall, the distance of the load to the ground below, the number of people in the area, etc.

The obligations

Regulation 3(1) of the Management Regulations requires every employer to make a suitable and sufficient assessment of:

• the risks to the health and safety of his employees to which they are exposed whilst they are at work;  and
• the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.

The purpose of the assessment is to identify what is needed, in terms of preventative and protective measures, to comply with health and safety law. This covers general duties under the Health and Safety at Work etc Act 1974 (HSWA) and the more specific duties in other statutes and regulations associated with the HSWA.

Preventative and protective measures must be identified and implemented. In particular, there is a duty under HSWA s2(2)(a) to provide and maintain systems of work that are, so far as is reasonably practicable, safe and without risks to health. This can only be established through a process of risk assessment.

Regulation 3(2) of the Management Regulations imposes similar requirements on self-employed persons.

The Management Regulations also specify that an employer who employs five or more persons must record the significant findings of their risk assessments and any group of employees identified as being especially at risk.  The significant findings should include a record of the preventative and protective measures in place to control the risks and what further action, if any, needs to be taken to reduce the risk sufficiently.

Regulation 3(3) requires a risk assessment to be reviewed in the following circumstances:

• when there is a reason to suspect that it is no longer valid; or
• if there has been a significant change in the matters to which it relates.

Employers and the self-employed must not sit back and assume that once a risk assessment has been created for any job they have exhausted their duty.

Carrying out a risk assessment

Risk assessments under the Management Regulations must be suitable and sufficient.  This means that the level of risk arising from work activities should determine the degree of sophistication of the risk assessment. Insignificant risks can usually be ignored, as can minor risks arising from routine activities associated with life in general, unless the work activity compounds or significantly alters those risks.  For example, winter weather may be considered to pose a routine risk to life, yet working in icy conditions may involve a far greater risk than normal and require additional precautions to be taken.

Risk assessments must take into account both workers and other persons who might be affected by the work carried out.  For instance, a haulage company would need to consider the risks to and from their drivers (who may be employees or mobile workers), subcontractors, workers involved in loading and unloading, other road users etc.

Who should carry out the risk assessment?

Regulation 7 of the Management Regulations requires employers to appoint one or more "competent persons” to provide health and safety assistance.  Such persons must have sufficient training and experience or knowledge, together with other qualities, in order to be able to identify risks and evaluate the effectiveness of precautions to control those risks. As long as such persons are competent and have the appropriate knowledge and experience, a risk assessment can be carried out by almost anybody within a company or business. Whether assessments are to be carried out by an individual or by a team, others will probably need to be involved during the process.  Managers, supervisors, drivers, specialists, etc will all need to be consulted about the risks involved in the work and the precautions that are or should be taken.

The risks

Below is a non-exhaustive bullet point list of the sorts of things that employers in the haulage industry need to be thinking about:

• Whether the risk assessment covers all significant risks to which drivers may be exposed or create. These will include risks arising from loading/unloading, coupling/uncoupling, reversing, running maintenance, sheeting/unsheeting, stress and violence.
• Arrangements for co-operation between the haulage firm and employers whose sites drivers visit.
• Do employers at sites visited provide the haulage firm with information on risks to drivers or site rules that drivers must follow? Do haulage firms tell their drivers? Does this information go direct to the drivers and does the haulage firm know this?
• Do employers at sites visited consider risks to drivers from tasks they have to do on the site and provide controls, eg gantries to permit safe tanker loading?
• Driver training and provision of suitable information. Is there training and information on basic safety checks before using vehicles, loading/unloading, securing loads, running maintenance, and delivery site driving rules?

Offences

Failure to comply with the provisions of the Management Regulations is a criminal offence. The maximum penalty in a magistrates' court is £5,000. Conviction in the crown court, in respect of more serious offences, carries an unlimited fine.

For more information on risk assessments please see the HSE document Five Steps to Risk Assessment.

Also, HSE booklet L21, Management of Health and Safety at Work, contains the Management Regulations in full, the associated Approved Code of Practice and Guidance on the Management Regulations.

Poppy Williams is solicitor for DLA Piper UK LLP.