Burden of proof in reverse
Maybe you will welcome the HSE with open arms, safe in the knowledge that you are innocent and they have to prove any guilt.
Wrong, wrong, wrong. Under Health and Safety law (section 40 of HASAWA 1974) you start with an assumed guilt and you have to prove innocence. Viz;
Section 40 – This places the onus on the defendant to prove that all reasonably practicable measures were taken. Any employer who is accused by an inspector, or non-compliance under HASAWA is guilty unless they can prove otherwise.
When the burden of proof is on the defendant to establish a particular issue, it is often referred to as a reverse burden because it reverses the normal situation in which the prosecution must prove the facts beyond reasonable doubt. Section 40 HASAWA imposes such a reverse burden; where a duty holder is required to do something ‘so far as is practicable’ or ‘so far as is reasonably practicable’, the burden is on the defendant to prove that it was not practicable or reasonably practicable to do more than was in fact done.
So the HSE Inspector can have you chasing your tail before they are satisfied you are legally compliant. Meanwhile, the cash clock is ticking away if they find a breach under Fees for Intervention. Two inspectors will drain your bank of £258 per hour, £832 per day and £4000 per week. They can ask for a whole myriad of documents including:
- Inspections, tours, surveys
- Risk assessments
- Registration with enforcing authorities
- Information for employees
- Foreign workers / workers who do not understand English well
- Accident book and training records
Meanwhile, day to day tasks are on hold until you can satisfy the Inspector’s demands as they can call upon wide ranging powers if required. Read an excellent blog about this here.
Definition of reasonably practicable
ALARP is short for as low as reasonably practicable. SFAIRP is short for so far as is reasonably practicable. The two terms mean essentially the same thing and at their core is the concept of ‘reasonably practicable’. This involves weighing a risk against the trouble, time and money needed to control it. Thus, ALARP describes the level to which workplace risks are controlled.
Risk Assessment drives ALARP. Deciding whether a risk is ALARP can be challenging because it requires duty-holders to exercise judgement. For high hazards, complex or novel situations, risk assessments should be carried out by competent people.
Because you need to continually prove your innocence under Section 40 of HASAWA good management systems are essential. A modern IOSH Managing Safely course can assist.
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