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New guidance makes health and safety clearer for the education sector

A review of the new guidance

Education is one of the most difficult areas to balance health and safety compliance. By contrast to the operations of a business, which has to manage risks to adults, a school has to consider and control risks that might be considered self-evident to adults in order to safeguard children from injury. Similarly, whilst a sign might adequately communicate risk to an adult, a child may not read, understand or heed it in the same way, meaning additional controls have to be put in place.

New, clearer HSE guidance

The HSE have produced new guidance to educational institutions, the tone of the guidance, and recent HSE Myth Busters educational cases (Please see our round-up of recent cases for examples), suggests that the HSE consider that some educational institutions may be adopting an overly risk averse attitude.

The guidance clarifies the extent of the organisation’s duty and the roles that individual duty holders, such as governors, head teachers and staff hold in complying.

In many ways guidance of this type, that delivers specific content to a specific industry, reflects the need for greater clarity in health and safety compliance identified by Professor Loftstedt in the criticisms contained in his report “Reclaiming health and safety for all” and serves as a helpful “sense-check” for educational bodies. 

Schools and educational institutions are increasingly caught between high profile arguments about whether children should be exposed to risk so that they can learn to appreciate and assess it, or whether the aim should be to eliminate all risk if possible. As is detailed in our round-up of recent educational cases heard before the HSE Myth Buster panel, there have historically been mixed messages about which of these approaches the HSE favours.

Balancing risk with educational benefits

The guidance itself appears to strike a balance relating to risk without requiring trivial risks to outweigh educational benefits. Indeed it is critical of organisations where “the culture aims to provide an environment of absolute safety, where the elimination of all risks squeezes out all other considerations”.

However it is worth remembering that the law itself, under section 3 of the Health and Safety at Work etc. Act 1974 requires that every employer conduct his undertaking to ensure that third parties are not “exposed to risks to their health and safety”.

This duty is subject to the usual requirement of reasonable practicability, given that establishing this is onerous it is helpful to reference this guidance and its more nuanced recognition that there are risks which are trivial and that there are beneficial activities which involve elements of risk.

The revised position reflects a shift away from the decision to prosecute taken in the case of R v Porter [2008] All ER (D) 249 (May) in which the headmaster of a school in which a child jumped down some steps, lost his balance and suffered a fatal head injury, was prosecuted. The key facts were:

  1. The organisation and headmaster had excellent health and safety records
  2. No complaints had been made about safety or the stairs in the preceding 29 years
  3. The risk the prosecution alleged the child had been exposed to was “falling on a flight of steps”
  4. There had been no previous accident on the steps in question despite “countless” children using them
  5. An expert for the defence said the steps posed no significant risk, were well constructed and that he had never seen concerns raised about similar steps

Nevertheless the defendant was convicted at first instance in the Crown Court. The Court of Appeal quashed his conviction on the basis that the risk posed by the steps was a trivial risk incidental to everyday life and did not arise as a risk specific to the school’s undertaking. Subsequent cases have confirmed that the “risks” to be controlled are those which are “material” (not trivial or fanciful) and foreseeable. 

Although the legal position has become clearer this guidance is welcome to communicate that an absolutist approach does not necessarily promote safety. This can be seen from the fact that schools feature prominently in the HSE’s Myth Buster Challenge panel review

Will the clearer guidance assist?

What is clear from educational cases which have come before the Myth Buster Panel is that a lack of clear guidance has promoted a risk averse approach. The guidance will assist but time will tell whether practice by industry or the regulator will match the guidance. It is worth remembering, for example, that the HSE now have an incentive to identify “material breaches” to recover costs of their involvement under the Fees for Intervention regime.  Similarly local authorities, and not the HSE, regulate day care and nursery providers so the guidance does not carry the same weight for them. 

Although the guidance and tone of the cases referred to suggests that a lighter regulatory touch may be being adopted, it should always be remembered that in the wake of an incident investigators have to do very little to establish the existence of a risk. It is up to the defendant to demonstrate the reasonably practicable steps taken to control it.  Risk assessments should still carefully record what control measures are being adopted and why.  The Porter case still serves as strong evidence of the need to be aware of these issues.

 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Paul Matthews

Partner - Head of Regulatory (Yorkshire and North East)

I am a Partner in the Regulatory team and a corporate defence specialist who provides up-front regulatory compliance advice and representation to businesses and senior managers in relation to investigations and prosecutions by regulatory bodies.