Working from height

Are you scared of heights? Well, many are, and understandably so, as falls from height are one of the main causes of workplace fatalities and major injuries. The responsibilities imposed on employers by the Health and Safety at Work Act 1974 (‘HSWA’) and the Working at Height Regulations 2005 (‘the Regulations’), and the necessity of working at heights in maintaining historic properties, mean that heights concern not just those on top of ladders but also those responsible for their safety. This article looks at some of the key considerations for those with responsibility for people working at height, from changing a light bulb to extensive roof refurbishments.

Recent cases
By way of context it is helpful to start by considering how the Courts approach employers who fail to comply with the HSWA and the Regulations. In February 2015, at the Grade II listed Newnum House, which is part of Brentwood School, Mr Chandler sustained serious injuries after falling 2.6 meters from the roof. On investigating, the Health and Safety Executive (‘HSE’) found that, while safety procedures were in place and the employer had produced a safety handbook which covered working from height, these documents were routinely ignored as the culture was one of ‘getting  the job done’. The School was prosecuted and, in August of this year, fined £40,000 plus costs. In 2015 Sir Robert McAlpine Limited and London Fenestration Trades Limited (a roofing contractor, to whom McApline had delegated work) were both fined £200,000 plus costs for breaches of the HSWA and the Regulations following the fall of a self-employed bricklayer through a hole created in a glass canopy by previous maintenance works. It was found that the canopy was not a safe working platform and the companies were criticised for the lack of edge protection. The second case illustrates a point that was also highlighted by the prosecution of a farmer and a building contractor in Yorkshire in 2011. In that case a contractor fell when repairing a barn roof and sustained permanent injuries. Both the farmer and the contractor were fined, emphasising that  an employer with responsibility for selecting contractors is also responsible for ensuring the work is completed safely and in compliance with the Regulations.

The Regulations
‘Working from height’ is any work undertaken where there is the risk of falling to a lower level, whether from a roof, a ladder or a raised platform. It can also include work at ground level over an opening in the floor or work on fragile surfaces over a void. The distances involved do not need to be great as injuries can be sustained should an individual fall a relatively short distance. Under the Regulations, employers must ensure that work is properly planned, supervised and carried out by competent people with the skills, knowledge and experience to do the job. Equipment should be appropriate  and  well  maintained.  Should an accident happen, employers will be expected to produce evidence that these requirements have been met, so risk assessments must be conducted and recorded along with a plan for the works. As illustrated by the Brentwood School case, it is not sufficient for this exercise to be carried out by a manager with HSE responsibilities and for the fruits of their labour to sit, unread and unheeded, in a file in an office: the procedures and policies should be understood and put into practice by staff at all levels. The Regulations advise a three-tier approach to considering working from height:

• avoid working at height whenever possible;
• if working at height cannot be avoided, take all reasonable steps to prevent a fall; and
• where falls cannot  be prevented, minimise the distance and consequences of any fall.

These core principles are worth examining in further detail.

Avoid
In a 2010 Court  of Appeal case, Fountain  Motors Limited was criticised after an employee fell when retrieving bumpers stored in a loft space which was accessible only by a ladder. Although the employee had ignored the health and safety procedures put in place by the employer, the Court of Appeal found that the Regulations should be the starting point, not the employee’s actions. The Court held that the employer had breached the Regulations by failing to ensure that work was not carried out at height where reasonably practicable; the fact that the employee had failed to comply with the employer’s health and safety procedures was considered to be contributory negligence. Methods to avoid working at height include storing items at ground level; using tools with extended handles; introducing fittings that can be lowered to clean/maintain; and performing as much assembly work as possible at ground level.

Prevent
Where work at height cannot be avoided, the employer’s next task is to ascertain how falls can be prevented. Considerations here will include whether a protective guard rail can be used around the perimeter of
a relevant area; what equipment can be utilised to prevent a fall; and whether it may be appropriate to use harnesses.

Minimise
After it has been established that work at height cannot be avoided, and all steps to prevent falls have been taken, the employer must take sufficient measures to minimise the distance and/or consequences of
the fall. This may include introducing soft landing systems (e.g. air bag /matting/safety netting); or fall arrest systems using a high anchor point.

What about ladders?
There is a myth that work with ladders is forbidden under the Regulations, or else it is only permitted after an intensive training regime conducted by an independent expert. This is not the case. In many instances, usually those involving working at height infrequently for periods of less than half an hour, ladders offer a sensible, practical and safe way of completing work at height. However, an employer should still follow the procedure set out above and give thought to the equipment and the manner in which the tasks are to be performed.
Particular points to consider are:

• Is the ground suitable for work from a ladder? Is the ground level and flat?
• Has the individual performing the work undertaken the necessary training? This need not be a formal course: on-the-job training from someone with appropriate expertise is often sufficient.
• Overreaching should be avoided, and staff should clearly be told this. The waistband of the worker should remain within the stiles of the ladder at all times.

Further reading
Working at heights can be dangerous, regardless of the steps taken by an employer. However, the HSE recognise that this work can be necessary and seeks to give sensible and practical guidance to ensure
that those performing tasks at height are safe. Compliance with the Regulations is mandatory and employees should be safer if an employer take its responsibilities seriously. The British Safety Council offers excellent guidance in its 2014 guide to working at heights (available online), as does the HSE, which has a dedicated ‘Working at heights’ section on its website. This includes useful documents that can be downloaded and used when briefing staff who work at height.

If you require further information on anything covered in this briefing please contact Jo Ord ([email protected]) or your usual contact at the firm on 020 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, December 2016