‘Safety tech’ : an analysis of the legal complexities

As companies try to make their workplaces safer, we have seen huge developments in technology designed to improve industrial safety, commonly referred to as ‘safety tech’.

This term refers to a wide variety of technology such as artificial intelligence (AI), drones, robotics, and wearable devices. Whilst such technology will inevitably improve safety, understanding the legal obligations when it comes to safety tech can be difficult and is not always straightforward, especially with an ever growing pool of technology to choose from.

This article sets out the obligations placed on duty holders by the relevant legislation, and examines the legal complexities involved in safety tech.

The law

The Health and Safety at Work etc. Act 1974 places a duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare of employees, and the health and safety of non-employees. Where an enforcing authority is able to demonstrate that an employee/non-employee has been exposed to risk to their health and safety, the burden of proof shifts to the duty holder to prove, on the balance of probabilities, that they took all “reasonably practicable” steps to mitigate the risk of exposure to harm. This reversed burden of proof makes defending a prosecution under the HSWA notoriously difficult.

The Health and Safety Executive’s (HSE) guidance on how to assess what is reasonably practicable involves weighing up the risk involved with a certain activity against the trouble, time and money needed to control it. The term is somewhat ambiguous and there is no exact science in calculating what may be considered reasonably practicable. However, as a general rule of thumb, the greater the risk of a certain activity, and the deeper the pockets of a duty holder, the greater the expectation will be.  

Reasonable practicability and safety tech

One of the key factors a regulator will consider when identifying whether a duty holder took all reasonably practicable steps is what equipment and devices the duty holder deployed to mitigate risk.

There is an increasing availability of emerging safety tech that seek to enhance safety in the workplace. Safety tech can be used to replace human involvement, such as robotics and drones to enter into hazardous spaces; or to reduce the risks where human involvement is still required, such as wearable devices that can monitor surroundings and vital signs to alert the wearer if they are in danger. AI is assisting companies in gathering information to help identify hazardous situations and predict where accidents are most likely to occur. Where duty holders effectively integrate safety tech into their processes and procedures to mitigate risk, this can be good evidence of reasonably practicable measures and may assist in avoiding enforcement action, or defending a prosecution.

Legal complexities and practical considerations of safety tech

Below are some of the key complexities and practical considerations involved with the integration of safety tech:

• Employee engagement: Employees may be resistant to change, especially if they do not perceive that their current working practices are unsafe. Duty holders should engage with employees in an open manner to hear their concerns, obtain their input, and assist with up-skilling where required to enable the successful introduction of new technologies.
• Maintaining equipment: The Provision and Use of Work Equipment Regulations 1998 (PUWER) places an obligation on “people and companies who own, operate or control work equipment to have a suitable inspection and maintenance regime in place”. Most physical safety tech used by employees is likely to fall under the scope of PUWER and therefore, duty holders who fail to implement a robust inspection and maintenance system may be exposing themselves to a risk of enforcement action, especially if the safety tech fails leading to an incident.
• High purchase costs: As with any novel and cutting edge product or service, emerging safety tech can often be expensive. What is reasonably practicable for a large company may not be the same for a smaller company. A duty holder is unlikely to be criticised by a regulator for not investing in safety tech that it cannot afford. However, duty holders should weigh up the level of risk against their financial means to invest in new safety tech. The greater the risk and financial means, the greater the expectation.
• Regulatory uncertainty: As new safety tech emerges, guidance from regulators will take time to catch up with developments potentially leading to uncertainty about the correct way for implementation. Duty holders should consider seeking advice from a suitably qualified health and safety professional when investing in new safety tech, especially where there is an absence of guidance from regulators.
• AI and data gathering: AI can be incredibly effective at gathering data to monitor activity and suggest where risks may arise. However, should a company fail to act on a risk identified through the use of AI, a regulator may suggest that this is evidence of a failure to act on a warning, potentially an aggravating factor when courts assess sentencing following conviction.

Comment

Duty holders may not be required by law to invest in every new (and often expensive) piece of emerging safety tech. However, investment in such technologies can assist companies in demonstrating that they have taken reasonably practicable steps to mitigate risk which can go a long way in avoiding regulatory enforcement action and assist in defending a prosecution. Investing in safety tech inevitably enhances occupational health and safety, of benefit to duty holders but, critically, their employees.