In December 2021, the Health and Safety Executive (HSE) published its construction statistics in Great Britain for the year up to 31 March 2021. These revealed that in construction there were 39 fatal injuries to workers, compared with a five-year average of 36 fatal injuries.
However, HSE's report also noted that over this five-year period 50% of deaths in construction were due to falls from height (see Figure 1). Given that falls from height is the leading cause of death in the industry, it is unsurprising that incidents involving falls from height or situations on site that expose workers to a fall from height risk can often lead to enforcement action being taken by the regulator (the HSE).
The law and legal requirements
Construction companies owe general duties under the Health and Safety at Work etc Act 1974 (HSWA) to ensure, so far as is reasonably practicable, the health and safety of employees and non-employees that may be affected by the health and safety risks from their undertaking, i.e. construction activities.
In construction, principal contractors must plan, manage and monitor the construction phase under Regulation 13(1) of the Construction (Design and Management) Regulations 2015 (CDM) and contractors must plan, manage and monitor construction work that they carry out as required by Regulation 15(2) of CDM.
There are specific duties under the Work at Height Regulations 2005 (WAH) that apply to employers and to those that control work at height, e.g. facilities managers or building owners. Work at height is defined in Regulation 2 of WAH as:
-
work in any place, including a place at or below ground level
-
obtaining access to or egress from such place while at work, except by a staircase in a permanent workplace
-
where, if measures required by these regulations were not taken, a person could fall a distance liable to cause personal injury.
Regulation 4 of WAH requires that work at height is properly planned, appropriately supervised and carried out in a safe manner, so far as is reasonably practicable.
Regulation 5 requires employers to ensure that persons working at height are competent to do so.
Regulation 6 requires employers to avoid work at height where it is reasonably practicable and where it is not to assess the risk to identify the measures required by the regulations.
Regulation 7 covers planning, which includes the selection of work equipment. HSE accepts that low-risk, relatively straightforward tasks will require less effort when it comes to planning.
Regulation 8 sets out the requirements for particular work equipment, with the detail set out in the following schedules to the regulations:
-
schedule 2: guard-rails, toe-boards, barriers and similar protection
-
schedule 3: work platforms
-
schedule 4: collective safeguards for arresting falls
-
schedule 5: personal fall protection systems
-
schedule 6: ladders.
One of the common causes of falls from height is fragile roofs. Regulation 9 of WAH requires that employers, where it is reasonably practicable, ensure that no worker 'passes across or near, or works on, from or near, a fragile surface'. Where it is not reasonably practicable then appropriate control measures must be put in place.
Regulation 12 sets out the inspection requirements for work equipment identified in Regulation 8.
Regulation 14 requires workers to use work equipment or safety devices in accordance with their training and instructions for use.
'Regulation 9 of CDM requires designers to eliminate, reduce or control risks through design'
What guidance is available?
The HSE tends to reference information that can be found on their website when they conduct investigations. Therefore, knowledge of their recent publications and statements can help protect you and your clients.
Their publication Working at height: a brief guide states that following this guidance will normally be enough to comply with WAH and advises that before working at height, duty holders must work through three simple steps:
-
avoid work at height where reasonably practicable
-
where work at height cannot be avoided, prevent falls using either an existing place of work that is already safe or the right type of equipment
-
minimise the distance and consequences of a fall by using the right type of equipment where the risk cannot be eliminated.
Figure 2 is the working at height guide's step-by-step diagram to assist duty holders in addressing these questions. Interestingly, while the diagram refers to mobile elevating work platforms (MEWPs), scaffold towers, scaffolds and ladders, there is no mention of work trestles, which are commonly used in the building trade.
In addition, the Ladder Association has published guidance LA455, titled Safe use of ladders and step ladders, produced in partnership with HSE with a foreword by Peter Brown, director of HSE engagement and policy. The guidance points out that ladders and step ladders are not banned under health and safety law and can be a sensible and practical option for low-risk, short duration tasks although they should not automatically be the first choice.
Temporary works is a term used to describe those parts of the construction work that allow or enable construction of, protect, support or provide access to, the permanent works and include edge protection, scaffolding and work platforms. Regulation 9 of CDM requires designers to eliminate, reduce or control risks through design. BS 5975:2019, the code or practice for temporary works procedures, states that in relation to permanent works, designers 'should address buildability of the permanent works and identify and make provision for any temporary works required by their design and their assumed method of construction'.
Prosecutions involving work at height
The following are examples of prosecutions by HSE in relation to work at height failures.
HSE v AJM Services (Midlands) Ltd and Pearsons Glass – Liverpool Crown Court (2022)
A roofer was completing snagging work on a replacement roof in May 2017. He fell to his death when he accessed a part of the old roof made of fragile asbestos cement sheets, which gave way. The area accessed by the deceased did not have safety nets fitted.
AJM, who carried out the work, pleaded guilty to breaching Regulation 4(1) of WAH and was fined £51,000. The owners of the building, Pearsons Glass, pleaded guilty to section 3(1) of HSWA and was fined £80,000.
Following the hearing, HSE commented: 'This was a tragic incident, which resulted in a needless loss of life and could have easily been avoided by properly planning the work and ensuring appropriate safeguards were in place.'
HSE v Peter Saunders Builders Ltd – Cambridge Magistrates' Court (2022)
In September 2017, an employee was working from a mobile tower levelling a steel beam that was seated on a door lintel. This involved using a crowbar to lever the beam up for a colleague to insert a metal packer into the gap. The employee lost his balance when he caught his jacket sleeve on the tower and fell over a single guard rail and down to ground level. He died three months later due to medical complications. The investigation revealed that the tower was not configured correctly for the task.
Peter Saunders Builders pleaded guilty to breaching Regulation 8(a) of WAH and was fined £16,000. The prosecuting inspector said after the hearing: 'Those in control of work have a responsibility to select access equipment that is suitable for the task and the work environment and ensure that it is safely used.'
HSE v St Modwen Homes Limited – North Somerset Magistrates' Court (2021)
In July 2018, three bricklayers sustained serious injuries when they fell approximately 2.5m onto a concrete floor through a temporary stairwell cover that had not been correctly fitted. St Modwen Homes did not have a robust system in place to ensure that the temporary stairwell cover was identified as a temporary working platform and treated as such. The company pleaded guilty to breaching Regulation 13 (1) of CDM and was fined £200,000.
Speaking after the hearing the investigating inspector said: 'This incident could so easily have been avoided by simply carrying out correct control measures and safe working practices. Temporary stairwell covers need to be inspected the same as any other working platforms.'
HSE v Oliver Connell and Son Ltd and Rydon Construction Ltd – Southwark Crown Court (2019)
A worker fell approximately 14m to his death when a temporary platform collapsed in July 2015. He was working on the fifth floor of a construction site. HSE's investigation found that Oliver Connell, the contractor carrying out the work, had no temporary works design for the platform and that its system for installing and inspecting it was inadequate. Rydon was the principal contractor and failed to identify the lack of design and failed to carry out suitable checks on the platform. Oliver Connell pleaded guilty to breaching Regulation 4(1) of WAH and was fined £360,000. Rydon was fined £500,000 after admitting it breached Regulation 13(1) of CDM.
Following the sentence, HSE said: 'The consequences of temporary works failing can be dire. All contractors involved must ensure that an effective system for managing the temporary works on site is established and adhered to. Crucially, all temporary works require a design to ensure that they are suitable for purpose.'
HSE v Terrance Murray – Manchester Magistrates' Court (2018)
Murray, a scaffolder, was sentenced to six months' imprisonment suspended for 12 months and required to complete 100 hours community service after pleading guilty to breaching section 7(a) HSWA for failing to take reasonable care for the health and safety of himself and of others.
In June 2017, Murray was erecting scaffolding at the rear of a Grade II-listed building in Manchester as part of works to renovate the windows. A retired HSE inspector photographed Murray on the scaffolding approximately 60ft in the air without being clipped on. Murray had been given the correct safety equipment and was not under pressure to carry out the work quickly.
After the hearing the investigating inspector said: 'We are grateful to the court for recognising that, while no one was hurt, the potential risk of harm or death was very real. A momentary slip of concentration for even the best people can kill if there is nothing to catch you. It was fortunate this man was spotted by a health and safety professional.'
Closing thoughts
Working at height is part and parcel of construction work, but it is a risk that can lead to serious injury and even loss of life. As the prosecutions described above demonstrate, the failure to manage the risk of working at height is often rooted in the failure to properly plan the work or to choose the most appropriate equipment, which needs to be regularly checked and maintained.
Further information: RICS' Surveying safely: health and safety principles for property professionals second edition is available to download here.
Mike Appleby is a partner at Fisher Scoggins Waters LLP