The deceptive wording of the HAVS legislation – an unaffordable risk for employers
In recent years, the Health and Safety Executive (HSE) have been hot on the heels of employers in prosecuting for breaches related to Hand Arm Vibration Syndrome (HAVS). These reported fines are increasing every year from £280,000 in 2016 to £0.5m in 2018. Last year a £0.6m fine was issued to Places for People Homes, a company owning and managing a large portfolio of properties.
Employers have to not only contend with potential employees making civil injury claims but now also face the very real prospect of being prosecuted by the HSE too. However, it's not just the employers who flout health and safety who may face the consequences – it appears the legislation misleads even the more cautious employers.
Prior to 2005, common law duties applied to HAVS claims, with duties to avoid and reduce vibration where there was an A8 of 2.8 m/s². Since then, the governing legislation for HAVS is the Control of Vibration at Work Regulations 2005. This set a Daily Exposure Action Value (EAV) of 2.5 m/s², which is the daily vibration level above which employers must take action to control exposure.
However, does this mean anything below the EAV of 2.5 m/s² is in compliance with the health and safety duties that befall employers? It seems easier to answer when the levels are close to, but still under the EAV of say 2.3 m/s². However, the answer is trickier at lower levels of say 1.3 m/s². We know the risk of developing HAVS at exposure below 1.0 m/s² is negligible, but the risk still exists – there is no deemed 'safe level'. In Billington and Burrows v British Rail Engineering Ltd (2002) it was held employers could not expose employees (who showed some HAVS symptoms) to further low levels of vibration, even if this was below the recommended maximum exposure levels. Helpfully, it is accepted that below 1.0 m/s² will unlikely be an actionable injury.
The risk often overlooked is exposure levels between 1.0 – 2.5 m/s². If we go back to the wording of the 2005 Regulations; regulation 5 states a risk assessment is required if any work done is “liable to expose...employees to risk of vibration”. The risk assessment are done so an “employer shall assess whether any employees are likely to be exposed to vibration at or above an exposure action value or above an exposure limit value.” The wording lends itself to the trap of an employer concluding that exposure levels below the EAV does not require any action. There is some sense in this belief because an employer who is in breach of a duty is usually burdened with further duties to take positive action. However, regulation 6 states “the employer shall ensure that risk from the exposure of his employees to vibration is either eliminated at source or, where this is not reasonably practicable, reduced to as low a level as is reasonably practicable”. There is no prerequisite criteria of the EAV being met mentioned here. This key point appears overlooked by many employers - all vibration needs to be eliminated, failing which, reduced to the lowest practicable level. There is no ‘safe’ vibratory exposure.
In respect of exposure levels of between 1.0 – 2.5 m/s², it must be remembered that as well as elimination/reduction there is a sliding scale of actions required as the exposure level increases; starting with providing information, instruction and training, to then introducing health surveillance and finally considering job rotation.
HAVS is a focus area for the HSE and prosecutions are being actively pursued. The HSE can successfully prosecute without an injury, as it is the potential seriousness and likelihood of harm that is considered in the criminal courts. The level of harm is deemed higher if more employees are exposed. Micro organisations (with turnovers below £2m) can be fined to £0.45m, small organisations to £1.6m, medium organisations to £4m and large organisations to £10m.
The wording of the regulations themselves can sometimes be a trap. Merely citing that risk assessments have concluded the EAV has not been met (without taking further action) will likely get short shrift from the HSE. It seems sensible for any employer who has vibratory tools/machines to review the risk assessments again and consider if elimination of vibration can be achieved. If this cannot be done then exposure should be reduced to the lowest practicable level.
The present pandemic already brings each business a multitude of challenges to be met in order to survive. Ultimately, the price for not going back to the basics is thus higher than ever before – the level of fines are sizeable and there is also adverse publicity. Together, these may prove to be the proverbial straw that breaks the camel's back for businesses in these testing times.