Health & safety: dispelling the myths
In an era where we are told that children must wear goggles to play conkers and wear clip-on ties to prevent choking, you would be forgiven for thinking that the UK has gone “health and safety (H&S) mad”. Fortunately, these types of stories are usually exaggerated, but the consequence of these well publicised myths is that many teachers live in fear of being sued.
To combat the chasm between the popular perception of ‘burdensome’ H&S regulations and what they actually require, the Health & Safety Executive (HSE), H&S regulator for England and Wales, has set up a ‘Myth-Buster Challenge Panel’. The panel will be made up of senior members of the HSE alongside independent members from a diverse range of sectors, such as small businesses, trade unions, and insurance industry representatives, and has been created to scrutinise and contest cases of over-interpretation. It is anticipated that it could have far-reaching implications for the education sector’s approach to risk assessment. With that in mind, Alexis Maher, solicitor in litigation at business law firm, DWF, explains what is being done to combat H&S myths and provides advice to teachers as to their actual responsibilities regarding the safety of their pupils.
Health & Safety in schools
As any parent knows, children will, from time to time, injure themselves, and these incidents can, of course, happen in the school environment. However, it is notable that only 0.05 per cent of reported injuries in schools lead to prosecution, which suggests that schools are doing a good job of complying with their legal obligations.
This is a far cry from the picture painted in the media and it is important for staff within schools to understand their duties, rather than relentlessly worrying about the legal implications of their actions.
HSE tackles health and safety culture
The HSE has traditionally borne the brunt of media ridicule about the perceived restrictive safety regime in the UK. However, to combat this, it has been on the offensive for the last few years, trying to dispel a range of common myths and attempting to redress the balance of H&S adherence in favour of a more pragmatic approach to risk.
The latest of the HSE’s initiatives in this vein has been the creation of the Myth-Busters Challenge Panel, which will assess the validity of advice given by the likes of insurance companies or consultants, advice which may have resulted in an activity or event being banned or not taking place. The ultimate aim of the panel will be to ensure that “sensible and proportionate decisions” have been made. A laudable objective, no doubt, but it remains to be seen how its decisions will actually be adopted in practice.
It’s often stated that there is a growing culture of teachers avoiding, or taking excessive precautions around, school trips, due to a perception that excursions create an onerously high risk environment. To take an extreme example, one school has set in place a procedure where, when taking pupils to the seaside, two staff members stand continuously in the sea with a rope between them to show the children the boundary of the play area – unlikely to be an exhilarating prospect for the teachers involved and a disproportionate reaction to risk.
It is noteworthy that only two of all prosecutions in primary schools actually related to school trips. Furthermore, if something does go wrong it often isn’t the school that is actually at fault. There are various examples where things have gone wrong and the service provider has been prosecuted.
The most famous example of this relates to the Lyme Bay canoeing tragedy in 1993, where a serious of failings and errors on a kayak trip led to a group of schoolchildren and their supervisors being swept out to sea, where their kayaks were swamped. Four teenagers tragically drowned in the incident, and the service provider’s failings, such as allowing under-qualified instructors to take charge of the trip, led to one of the few cases where both an individual director was imprisoned and the company convicted of manslaughter.
A drive for good old school trips
The coalition Government is currently on a drive to encourage more school trips. Michael Gove, the Education Secretary, last year vowed to cut the red tape on school outings, hoping for a “more common sense approach to health and safety”. Similarly, Ofsted concluded that school visits made pupils more enthusiastic about education and boosted standards, but found that schools were deterred from organising trips due to concerns about H&S, finance and workload.
While excessive documentation and unnecessarily detailed risk assessments are sometimes perceived as requirements for school trips, The Department of Education published guidance in February of this year which states that schools should first and foremost apply common sense when assessing risks and putting safety procedures in place. The message appears to be that children do not need to be wrapped in cotton wool, and that rather they should be provided with opportunities to “understand and manage the risks that are a normal part of life”.
Understanding your legal duties
The important thing for teachers to understand is that the main responsibilities lie with their employer and as such, it is incredibly rare for teachers to be personally sued or prosecuted.
The employer (which may be the school or the local education authority) has a legal duty to ensure people (including children) are not exposed to risks to their health and safety “so far as is reasonably practicable”. This means that the school is required to do as much as it reasonably can to assess and avoid any realistic risk.
Defining avoidable risk can be a little trickier, and case law shows that the Courts will often rule on the side of common sense. In 2008, for example, a four year-old pupil suffered a head injury whilst jumping down steps in a playground. While he would have recovered from his injuries, he unfortunately contracted MRSA in hospital and subsequently died. The HSE decided to prosecute the headmaster for exposing the pupil to risks to their health and safety - alleging that the supervision of the pupils on the flight of steps was inadequate. However, the Court decided that this was not realistic, taking the view that it was the head teacher’s duty to guard against real risks posed by the school, not against risks that are hypothetical or, as in this case, simply a part of everyday life.
When considering the risks involved in an activity, teachers do not need to record every possible scenario that could arise, or attempt to eliminate all risks. Precautions need to be proportionate to the risks involved and paperwork needs to be easily understandable. The HSE states that “those running school trips need to focus on the risks and the benefits to people – not the paperwork”.
The Department of Education guidance explains that:
“the law requires employees to:
- take reasonable care of their own health and safety and that of others who may be affected by what they do at work
- co-operate with their employers on health and safety matters
- do their work in accordance with training and instructions
- inform the employer of any work situation representing a serious and immediate danger, so that remedial action can be taken.
In addition, teachers and other staff in schools have a common law duty to act as any prudent parent would do when in charge of pupils.”
A brave new age of sensible health & safety?
H&S should always be a consideration in the education sector, but it shouldn’t act as a deterrent for teachers from carrying out activities that have been properly assessed. Children need to be inspired and creativity encouraged, not hampered. Stories about excessive paperwork, ludicrous health and safety rulings and the inability to organise schools trips only serves to stop vital learning experiences for children.
The HSE is dedicated to dispelling these myths and ensuring that real risks are properly managed. Hopefully the Myth Busters Challenge Panel will begin to reduce the stigma attached to H&S law and create confidence that proportionality and common sense play a large part in risk assessment.
If the Government is truly committed to a risk-based approach to H&S, schools should receive some recognition for the low number of prosecutions made on the grounds of H&S failings. In fact, it is questionable whether H&S regulation is necessary for the sector at all. In reality, it is unlikely there will ever be a decision not to regulate schools, as they are responsible for the most important thing in a parent’s life - their child.
Fundamentally, everyone in the education sector has the same aim, to ensure the safety of staff and children. However, the new panel should help teachers do their part more proportionately and with less fear of repercussion.
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