Risk-Assessing the Uncontrollable

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07 October, 2020

David Mayor

The HSE has just announced that it will be conducting its latest round of construction site inspections throughout October. They are focussing on various issues, most notably how sites are dealing with exposure to dust (in all its forms).

Construction workers are disproportionately more likely to develop occupational cancers than other employees. Over 40% of occupational (i.e. work induced) cancer deaths and registrations in the UK are from the construction industry, and many more construction workers are killed by occupational cancers than accidents. In fact, it is estimated that one hundred construction workers died of occupational cancer for every one who was killed in an accident between 2012 and 2013.

Of course, many of those have historical causes. Knowledge of workplace safety has increased exponentially even in the last decade and, thankfully, the days of wilful ignorance to dangers have pretty much gone, although we are still finding previously unknown causes of cancer even now. Anybody working with asbestos or silica, the two biggest carcinogens, can expect their employer to have robust protection systems in place. For some, it is the legacy of decades of unprotected work which is only now catching up with them.

Protecting employees from exposure to such risks is a given and obvious to most employers. After all, if you create the danger faced by staff then it is inherently obvious that you should do all you can to protect them from it. But where do you stand as an employer when it comes to protecting against hazards not created or caused by the business at all? How do you assess the risk posed by factors outside of your control, and do you even need to?

Let's look at skin cancer. Construction workers are in a group of significantly "at risk" employees due to the amount of time they spend outside. Exposure to solar radiation is well known to cause Non-Melanoma Skin Cancers (NMSC) and Malignant Melanoma (the more serious kind). The risk is increased with fair skin, longer exposure, and hotter sun, although the risk remains even on cloudy days. On the face of it, anything from a mild sunburn to malignant skin cancer is eminently foreseeable.

But skin cancer from solar radiation isn't caused by work as such, and you cannot control the sun as an employer. People also have a duty to look after their own safety as well, right?

Well, sort of, but that is not the whole picture. When you provided an employee with work at height PPE you are effectively saying "I don't trust you to not fall off this scaffolding tower, so I am going to make sure you don't". When you put a guard on a circular saw you are saying "you shouldn't really saw your own hand off, but just to make sure….". As an employer, you have a duty to protect employees from themselves, even where the danger is, in many cases, obvious. Your risk assessments need to deal with all foreseeable risks to employees because employees get lazy, bored, or distracted; in short, they are human. In such situations you are guarding against something that should not happen, all being well, but could.

Those risks are not created by the work itself, in that the risk of falling at height is usually no greater than it is on the ground, although the consequences are certainly different. What matters though is that, as an employer, you put people into circumstances of potential danger for the benefit of your business. In other words, you create a situation where people may injure themselves in exchange for profit. They would not face the same risks at home, so the risk has presented itself as a result of bringing staff to work at all, even if the danger arises from something external.

You cannot control the sun. You cannot stop it from disproportionately affecting certain workers over others. You cannot choose when and where you work, nor would you be expected to consider such matters when planning which jobs to take. You cannot stop your workers from falling asleep sitting outside on a deck chair on their day off. But you can insist that workers are fully dressed and wear wide-brimmed hats to work. You can include sun-safety in tool-box talks. You can provide shade and water stations, or dish out sunscreen. You could even provide UV protective clothing as PPE. All are simple and cheap to implement, but how many businesses actually do so?

When you talk about such things, some people will ask where it stops if you start risk-assessing the sun. What about the cold? Is there a risk to employees in working in cold, icy, damp or otherwise uncomfortable conditions? Do you have to consider the effects of humidity on asthma sufferers within your workforce? Is the area prone to flooding? Could dust cause flare-ups in psoriasis or other skin conditions?

If weather conditions are an uncontrollable force, and all you can do is mitigate the effects, what about other external factors outside of your control? It is theoretically foreseeable that an out of control car may come crashing through the site barriers and strike employees; should you deal with that in your risk assessment? How about attempted site thefts (tools, valuable materials etc.) turning in to violent attacks on staff members? You have no power to prevent such things.

This is a very murky and situation specific area of law, but the concept of remoteness helps us greatly. The more remote (i.e. unlikely) a scenario, the lower the burden to risk assess and mitigate against the consequences. Employees will trip, fall, and cut themselves every day on a construction site if you let them, so you have to deal with walkways and PPE as a matter of course. Rampaging gangs and out of control cars are so unlikely that they can be discounted almost entirely on UK sites. Such things may become less remote in other situations, however. Are your security staff more likely than others to be attacked, particularly at night? Is organised violence more likely when working in certain areas of the world?

Which brings us back to the sun. Reading this article on a rainy Tuesday in October it may be hard to bring sunblock and skin cancer to the forefront of your mind but, come March, it may be a different story (more remote things have happened). Does bringing workers on site expose them to the sun? Yes. Does doing so create a risk of mild to severe skin conditions? Yes. Is the chance of that happening remote? No. Then you need to deal with it, and you cannot rely upon employees to look after themselves. You need to intervene, train and disseminate knowledge. Never assume that your employees have the knowledge they need to keep themselves safe. If they did, I would have no statistics to quote and the HSE would be disbanded.

For more information contact David Mayor in our Construction & Infrastructure department via email or phone on 01254 222416. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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