Getting the safety net in place: addressing the risks of falls from height in the workplace
It is of key importance that employees and personnel working on your premises are trained in respect of how to work safely at height.
Falls from height continue to be a major cause of serious accidents in the workplace. Notwithstanding the overall improvement of health and safety at work over recent years, falls from height still occur with recent examples including falls through fragile roofs, falls from unsecured or defective platforms or from operatives over-reaching. Indeed, falls from height were the principal cause of fatalities in the 2021/22 period, comprising 23% of all fatalities according to HSE figures.
Where such incidents happen, employers and controllers of the premises are likely to face investigations by the HSE. The outcome can be prosecutions with resultant significant fines and/or prison sentences. Incidents are also more likely than not to lead to personal injury claims which in view of the circumstances and nature of the injuries sustained can often be substantial in value.
The law and your duties
Both the HSE and the courts will have regard to the provisions of the Work at Height Regulations 2005. Although in civil claims the Regulations no longer have strict liability, the provisions remain relevant to an assessment of whether an employer or controller has been negligent.
In basic terms, work at height encompasses working in any place where a person could fall and sustain injury if no precautions are in place.
The key principle is that work at height should be avoided where it is reasonably practicable to do so.
The starting point for employers should therefore be to consider whether the work can reasonably be done other than at height and if so, to do it that way.
However, the reality is that there will be a number of situations where it is difficult to carry out the work other than at height, and in that event, the hierarchy of measures in the Work at Height Regulations should be considered:
- Avoid working at height if possible
- Use an existing safe place of work
- Provide work equipment to prevent falls
- Mitigate distance and consequences of a fall
- Instruction and training and/or other means
The hierarchy of measures should not, however, detract from the primary duty to ensure that work at height should be avoided where possible and this duty is something that is sometimes overlooked. In the event of a prosecution or claim, the reality is that in practice it will be for the defendant to persuade the authorities why it was not reasonably practicable to avoid the activity at an elevated level completely. Whilst not fully determinative of the issue, the risk assessment in respect of the task undertaken by the employer or other entity in control of the work will be integral to its argument showing it has gone through the hierarchical process, actively considered why the work at height is essential, and the various control measures the defendant has identified and deemed adequate to protect its employees and others working at height.
The failure to undertake an adequate risk assessment and address the risks raised by working at height is keenly demonstrated in a number of incidents recently reported by the HSE on their website:
- Fall from unsecured stillage
A failure to risk assess requiring employees to work from unsecured stillage on the forks of a forklift truck, in order to clean office windows at height, and a failure to train the employees on the dangers of working at height without safety equipment, led to a £200,000 fine and £6,477.93 costs order. The employee sustained a broken leg and elbow injury when he fell 3.5 metres. Requiring the work to be carried out at height appeared unreasonable and it seemed likely that, had a suitable risk assessment of this task been carried out, it would have identified that devising an unsecured working platform would put an employee at risk of falling.
- Fall through a fragile roof
An engineering company was fined £14,000 and ordered to pay £6,451.80 in costs when an employee fell six metres through a fragile roof whilst installing bird deterrent spikes on a roof. The employer again had failed to adequately risk assess and plan the work. Had they done so, control measures such as provision of access equipment and over-boarding of the roof would have been implemented, thereby preventing the accident.
- Fall from defective platform
A demolition worker died when part of a metal pipe bridge platform gave way, after his employer failed to carry out a comprehensive assessment of the risks relating to his work. His employer had been notified of the corroded condition of the pipe bridge but failed to consider this in their risk assessment and identify reasonable control measures including informing their employees of the hazardous condition and preventing access. The company was fined £5,000 as a result.
As these recent reports show, falls from height in the workplace are still prevalent but many could be eliminated by care being taken to undertake comprehensive risk assessments of all the risks associated with the work required. External third parties can be engaged when the skills for undertaking such an assessment in house are not available. Whilst not the sole requirement for employers, such assessment will place the employer in a more secure position to minimise the risk of incidents and successfully defend themselves in respect of any resulting claims.
Where that risk assessment is completed, it is critical that the specific control measures identified must be put in place. This can give rise to liability if failings occur.
Maintenance and suitability of mobile equipment
- Fall from a mobile elevating work platform
Following a tragic incident in which an employee died whilst carrying out a pre-use check of a mobile elevating work platform, it was identified that the manufacturer had manually uploaded into the machine incorrect data causing it to be mis-calibrated. This resulted in the device becoming unsafe because the secondary boom angle sensor started to extend when it was at the wrong angle, causing the platform to tip over. This highlights the critical importance of ensuring accurate data is used in modern high reach MEWPS.
As a result, the manufacturer was fined £270,000 and ordered to pay costs of £165,175.
- Fall from hoist platform
A building owner was sentenced to 12 months in prison after an employee was paralysed when the hoist platform he was working from fell from third floor to ground floor during fit out works. It was established that the building owner had not maintained or inspected the hoist and that it was not suitable for carrying people when in a raised position.
Furthermore, there had been a similar incident 12 months previously and notwithstanding this, an adequate risk assessment was not carried out which could have prevented the incident.
- Fall through fragile roof
A construction employee sustained serious injuries when they fell 7 metres through a fragile roof whilst carrying out roof repairs. It was established that whilst there was a scaffold tower in place, the employer failed to plan or supervise the work including failing to give adequate consideration to fall prevention measures such as netting. The employees were left to devise their own makeshift ladder/staging system from planks, which did not operate to protect the employee when he fell. The incident resulted in an £80,000 fine and £9,981 costs. Following the hearing, the HSE investigator stated that falls through fragile roofs constitute around a fifth of all fatalities in the construction industry and “Those in control of work on fragile roofs and other work at height have a responsibility to devise safe methods of work and to provide the necessary information, instruction, training, and supervision of their workers.”
Of course, in many situations, there are often multiple entities with employer, or control responsibilities, and in such circumstances it is essential that all such personnel communicate, collaborate and collectively ensure the safety of the work being carried out.
Regulation 5 WHR provides that every employer shall ensure that no person engages in any activity, including organisation, planning and supervision, in relation to work at height or work equipment for such work unless they are competent to do so. Similarly under the Occupiers’ Liability Act 1957, an occupier may escape liability to visitors for the faulty execution of work by contractors if they have acted reasonably in engaging contractors to undertake the work, and they have taken reasonable steps (if any are reasonably required) to check the contractor was competent and the work was properly done. Accordingly, occupiers are at risk if they cannot demonstrate that such steps were taken in respect of the contractors they engage or if, for example, they were aware of safety issues with the premises (particularly those which were not obvious) which they did not communicate to the contractor.
- Fall through roof
A failure to undertake appropriate due diligence of a roofing contractor’s documents and to ensure an appropriate phase plan was prepared resulted in a warehouse owner being fined £96,000 when an operative fell through the roof, sustaining serious injury.
The contractor admitted failing to plan the work and to provide fall prevention measures such as nets or coverings. Further, he admitted that he had not completed any health and safety training, neither did he train the operatives.
- Fall through hole
The failure of a contractor to properly identify the presence of a hole allowed their client’s employee to fall 2.5 metres, sustaining injury to their pelvis and hips.
The contractor was working over the hole without any suitable protective measures for their own employees. They failed to assess the risks or implement appropriate control measures.
As a result, the hole was left unguarded save for two unsecured aluminium plates and plastic barrier tape. The contractor was issued with an £8,000 fine and £7,194.32 costs order.
Such recently-reported HSE prosecutions demonstrate the particular difficulties that can arise with multiple parties working within the same space and the importance of communicating regarding the risks arising out of their respective operations and training their employees regarding the risks of working at height. Those in control of work at height must give consideration to all persons who can access their work area and implement appropriate controls.
Adherence to the HSE hierarchy of risks is essential whenever work at height is being undertaken. The recent HSE reports show that risks rising from work at height still remain a major source of incidents and that those involved in such works still need to do more to minimise the dangers. Work at height should be avoided where it is reasonable to do so. Where it is not possible to avoid working at height, conducting a suitable and sufficient assessment of the risks should be of primary importance as this will identify the hazards and inform appropriate control measures.
It is of key importance that employees and personnel working on your premises are trained in respect of how to work safely at height, and that there is a culture of identifying and reporting any concerns regarding the working practices.
Furthermore, companies must take reasonable steps to ensure that any equipment used as part of the assessment of adequate control measures is suitable for the task at hand, and is properly maintained and inspected.
If it is not reasonably practicable to avoid working at height, we therefore recommend documented consideration of the following matters:
- What is the height of the task?
- How often is it done?
- Is work equipment being used when at height?
- Can the work be undertaken reasonably without precautions?
- If not, what equipment can reasonably be used to prevent falls: ladders, working platforms, scaffolds, lifts, guard rails, toe boards etc.
- What personal protective equipment can be used to prevent falls: fall arrest, harnesses, hard hats etc?
- Are safety nets/soft landing systems reasonably required and if so, provided?
- Can work equipment be extended safely from the ground?
- If not, how can equipment be safely transported for working at height?
- Ensure inspections of the work equipment are done periodically and documented.
- Ensure maintenance of the work equipment is done periodically and documented.
- Ensure work surfaces are inspected and documents retained.
- Reasonable steps should be taken to train personnel working at height in respect of the risks of working at height and how to work safely.
What can we do to assist
Weightmans is frequently instructed in respect of both regulatory matters and personal injury claims arising out of such incidents and has dedicated teams which can assist you, either in respect of general safety advice, or in the event that an incident occurs. Our teams are experienced in advising clients both in preventing work at height incidents from happening, and assisting you with investigations, liaison with regulatory bodies, and in the event of personal injury claims.
Contact our expert Health and safety solicitors, for further guidance on the issues surrounding working from height.