Balancing sustainability with health & safety

This article first appeared in ALARM's Spotlight on Sustainability guide, November 2022.

Over the last few years there have been developments in the way we work, both in response to employers’ legal obligations and also in response to the changing needs and expectations of society. The law in this area continues to evolve. In this article, we provide general commentary from a legal perspective on a number of sustainability topics, namely: health and safety at work, fire safety and hazardous materials.

Health & safety issues in the workplace - the legal position

Section 2(1) of the Health and Safety at Work Act etc. 1974 states: “it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”. Section 3 of the Act is similarly worded in reference to nonemployees and members of the public.

The Control of Substances Hazardous to Health 2002 Regulations outline requirements for those individuals who may be exposed to COVID-19, for example employees in research laboratories or health and social care workers caring for infectious patients.

The Personal Protective Equipment at Work (Amendment) Regulations 2022 came into force on 6 April 2022. These Regulations amend the 1992 Personal Protective Equipment Regulations by extending the employer and employee duties regarding PPE to workers who generally have a more casual relationship and work under a contract for services (defined as limb (b) workers) and who did not previously come under the scope of 1992 Regulations.

Where there is a requirement to undertake a risk assessment and implement control measures in the context of COVID-19, employers must take ‘reasonably practicable’ steps to reduce the risk of employees contracting the virus in the workplace. Factors such as the time and expense of measures will be considered, but ultimately the court will expect an employer to implement measures to protect employees at risk of exposure, given the potentially significant risks of contracting and further spreading of COVID-19.

Fire safety in the workplace should be reviewed carefully and risk assessed.

Practical considerations for PPE

Under the 1992 Regulations, personal protective equipment, unless the context requires otherwise, means: “all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects him against one or more risks to his health or safety, and any addition or accessory designed to meet that objective”.

The starting point is to undertake a risk assessment to decide whether PPE is needed. Before selecting PPE, it is important to consider who is exposed, what they are going to be exposed to, for how long and how much they are likely to be exposed. This involves the assessment of a hierarchy of controls, with elimination being the most effective and PPE being the least effective.

If PPE is required, employers must ensure their workers have sufficient information, instruction and training on the use of the PPE. Employees should be trained so that PPE is used in line with manufacturer’s instructions. Risk assessments and control measures should be reviewed regularly and updated in line with government rule changes.

The HSE includes the assessment of PPE during inspections. Potentially organisations may be prosecuted in circumstances where the PPE is seriously lacking or inadequate.

The risks of COVID-19 and long-COVID claims

The All-Party Parliamentary Group on Coronavirus is calling for the UK Government to recognise long-COVID as an occupational disease and to introduce a compensation scheme to provide financial support. The campaign is being led by Layla Moran, MP, who calls long-COVID the “hidden health crisis of the pandemic”.

Further, in a report dated August 2022, the Trade Union Congress noted that ‘the recognition of COVID-19 as an occupational disease would formally recognise the higher risk of certain jobs, and signify a need for greater support for affected workers and patients’. The government has yet to respond formally.

The legal position

Under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), an employer is obliged to report certain COVID-related exposures to the HSE. Employers who do not ensure that adequate measures are implemented risk HSE intervention.

We are already receiving claims against public sector bodies arising from allegations that COVID-19 was contracted in the workplace. Claimants will need to prove causation, which is likely to be a significant hurdle given the transmissibility of the virus.

Practical considerations

There should be a regular review of claims internally to consider any trends. We would support the sharing of information and experience between public sector organisations in defending claims.

Fire safety

Before introducing new sustainable products to an organisation, there are a raft of important considerations to factor into the decision-making process.

The legal position

The Fire Safety Act 2021 was made law on 29 April 2021 and is an important piece of legislation with potentially significant ramifications for those organisations considered ‘Responsible Persons’ under the Regulatory Reform (Fire Safety) Order 2005.

A Responsible Person must:

• Carry out a fire risk assessment of the premises and review it regularly.
• Tell staff or their representatives about the risks identified.
• Put in place, and maintain, appropriate fire safety measures.
• Provide staff information, fire safety instruction and training.
• Plan for an emergency.

Hazardous materials

In recent years, there has been an increasing focus on the sustainability of synthetic chemicals. In particular, Perfluoroalkyl and Polyfluoroalkyl substances (PFAs), which are used in a variety of products ranging from food packaging to cooking appliances and cosmetics, have been under global scrutiny because of their alleged impact on health and the environment. This has resulted in international noteworthy legal and regulatory developments.

The legal position

In the EU, PFAs are subject to stringent regulation, including the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) restrictions and the Classification, Labelling and Packing Regulation, and the Drinking Water Directive. The European Commission has also pledged to phase out the use of PFAs in the EU, allowing their use only where they are proven to be irreplaceable and essential to society.

The European Chemicals Agency has recently proposed to ban the use of PFAs in firefighting foams in Europe on the basis that the risks posed are not adequately controlled and should be minimised.

Consideration should be given to current and future risks, in addition to the sustainability impact of any new material.

Organisations should be alive to such developments when considering alternative solutions as part of their sustainability drive.

The European Commission launched a call for proposals under the EU’s Green Deal which focuses on the remediation of contamination with persistent and mobile chemicals, including PFAs.

In the UK, the HSE, with support from the Environment Agency, opened a call for evidence on PFAs to support a regulatory management option analysis conducted under the UK REACH regime, seeking views on all aspects of the manufacture, import, hazard profile, use, and exposure to PFAs. The call for evidence closed on 30 January 2022. DEFRA has also identified PFAs as a priority group for action.

The UK Government published a policy paper on 30 June 2022 titled Rationale for prioritising substances in the UK REACH programme 2022 to 2023. The paper states that the Environment Agency, with the HSE, is conducting a Regulatory Management Options Analysis (RMOA) which will make recommendations on how to manage the identified risks of using PFAs. The HSE has confirmed that ‘if the assessment indicates that UK REACH restriction is an appropriate measure to address any identified risks, we will begin the preparation of an Annex 15 restriction dossier in 2022/23, for completion in 2023/24’.

PFAs’ litigation has started in the United States and Europe. There is always a risk of legal action in the UK in the future and the development and outcome of the legal cases in other jurisdictions is likely to be monitored closely.

Related item: Making sense of sustainable action