HSE may find EC less than reasonable in court battle
December 1st 2006

Ionic's Craig Mawlam says the vagueness surrounding the WAHR,specifically the 'reasonably practicable'part regarding use of ladders, has rendered them virtually useless.He says it's a cop out for employees, but also for employers, as 'reasonably practicable'precautions may well fail them as a defence following an accident. But with the European Commission taking the government to court over its implementation of EU directive 89/391/EEC, all that may change

The Work at Height Regulations became part of UK H&S law on the 6th of April 2005 and in respect of the statistics for window cleaning, they don't appear to have made a blind bit of difference.

In the first four months of 2006 alone, three window cleaners lost their lives when they fell from ladders while cleaning first floor windows.

So what do the WAHRs say about the use of ladders? "6 (2) Every employer shall ensure that work is not carried out at height where it is reasonably practicable to carry out the work safely otherwise than at height."WAHR 2005 Sec 6(2) In circumstances where there is no reasonably practical alternative, then a ladder can be used. But in order to use a ladder, specific requirements must be met. Schedule 6 of the regulations state that ALL portable ladders, in all circumstances, must be secured by lashing with ropes or tethers, the use of a ladder stability device or by another equally effective means.

"5. A portable ladder shall be prevented from slipping during use by: (a) securing the stiles at or near their upper or lower ends; (b) an effective anti-slip or other effective stability device; or (c) any other arrangement of equivalent effectiveness."WAHR 2005 Sched 6.5 Lack of clarity At last year's Windex show a senior figure from the HSE spoke to packed audience at a seminar that was anticipated would clarify the WAHR's, (yes they really needed clarification).After the seminar I spoke to some attendees who couldn't understand why the man from the HSE was so vague about the regulations when all they wanted to hear was what they could, and could not do in the workplace.What compliant window cleaning companies desire more than anything is a level playing field.

Having attended previous meetings with the HSE and other interested parties I have a better understanding than most as to why it is that those at the sharp end, who really need to know, can't get a straight answer.However, this could all change early in 2007 when the outcome of the European Commission's legal action against the UK's Government is known.

EU versus UK The Commission's case centres around the UK's implementation of the EU's framework directive on Health & Safety (89/391/EEC), which makes employers responsible for protecting workers from all threats to their health & safety.Under UK legislation, the "so far as is reasonably practicable"qualifier (SFAIRP) means that an employer does not need to take any action to control what the employer may consider to be a minor risk if the cost of doing so is disproportionate to the perceived level of risk.The concept involves weighing a risk against the time, trouble and cost of controlling it.The commission argues that the SFAIRP test does not fulfil the requirements of the directive because it does not go far enough in protecting workers. If evidence of this was needed then a glance at the depressing statistics for the UK's windowcleaning industry should suffice.

Cost versus safety In my opinion the SFAIRP principle offers a false sense of security to policy makers who cling to out moded access methods citing cost.Yet after the event, an employer who relies on the SFAIRP test as a defence is likely to find that it will fail him/her just a miserably as the poor worker involved.

From my perspective safety should be black or white, its either safe or it is not! Window cleaning is inherently dangerous.Therefore, the primary job of an employer of window cleaners is to manage all of the inherent risks.The risk of a fall from height should not be subjected to the shades of grey that SFAIRP provides, allowing employers to expose their staff to dangers every working day.Window cleaners should not have to risk their lives just because their employer does not wish to pay to provide adequate training and implement safe systems of work.

The outcome of the European Commission's case should be known in the early part of 2007.The HSE is said to be mounting a robust defence, but says that it has already given some thought to "contingency planning".The principle of SFAIRP is so deeply imbedded in UK H&S law that losing could lead to enormous cost, but one may speculate that such a fundamental change could lead to improved safety for us all. In a perverse way it may seem as though the SFAIRP test fails when applied to the 89/391/EEC Directive.

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