otterconsultancy.co.uk

Over a period of 9 years, Geoffrey Laycock provided an 'agony aunt' service on behalf of a major publisher in the UK. A selection of questions and the replies will be re-produced here, hopefully answering a few more of the questions that arise in health and safety management. So far the following have been added below:

Colour coding of fire extinguishers
Using fork lift trucks on the road
Charging for PPE
Right of Inspectors to see confidential documents
Safe use of abrasive wheels
Use of white lead paint

Question – I understand that colour coding of portable fire extinguishers will change soon and all will need to be red in colour. I have already been told I need to replace all our existing extinguishers, is this true, I didn’t think so?

Answer - You are basically correct in saying the fire extinguisher colour coding will change from 1.1.97.

On that date British Standard BS5423 will be withdrawn and BS EN 3 will be the standard for portable fire extinguishers. A BS EN is a European Standard adopted for use within this country, often replacing existing British Standards. The intention is to have a Europe-wide marking scheme to prevent confusion. BS EN 3 also introduces higher manufacturing test standards.

There will be a British Standard, BS 7863, which will compliment BS EN 3. This BS will allow fire extinguisher manufacturers to affix coloured panels on, or above, the operating instructions on the extinguisher body. All extinguishers will have a red body but a coloured panel, eg cream for foam, can be added. The panel must not be greater than 5% of the extinguisher body surface area. Alternatively, the plastic operating parts can be colour coded. There will therefore be a familiar marking for those used to the existing colour scheme.

Remember also that the existing colour code scheme has been voluntary and not always followed. A number of organisations have used stainless steel bodied water extinguishers without any colour coding for many years.

You are correct that existing extinguishers do not need to be replaced until the end of their useful life. This would generally mean until a competent person, carrying out the annual or other specified period examination, decides they are no longer safe to operate or not capable of operating correctly.

The adoption of the new standard will in the long term make identification of portable extinguishers easier. All fire fighting appliances will be red, matching the colour of signs related to fire. Extinguishers can be further colour coded which will allow easy recognition. Employees at work expected to be able to use fire extinguishers will require some training to make them aware of the changes but this should take very little time. In any case, only trained persons should use portable fire extinguishers.

(First published 1997) (I still get questions about this because someone has been told the law requires old extinguishers to be replaced – usually by a salesperson!)

Question – We use fork lift trucks in our business and this includes driving them onto the public road for a short distance to access another part of our premises. Are there any special rules we should follow to operate them on the road?

Answer - Firstly, any person driving a lift truck must either be under training or have been trained. The duties under the Health and Safety at Work Etc. Act 1974 apply and compliance will be achieved by following the available guidance and codes of practice. The Health and Safety Executive document 'COP 26 Rider operated lift trucks - operator training: approved code of practice and supplementary guidance. 1988, £3.75, ISBN 0 7176 0474 8' sets the standard that should be followed for selection and training.

Once a vehicle passes onto a public road (or as seen below certain other categories of "road") further legislation will apply. The following information has been kindly supplied by the Driver and Vehicle Licensing Centre, Customer Enquiries (Drivers), at Swansea.

"The Road Traffic Act 1988 requires that the driver of a motor vehicle when driven on a road must hold the appropriate driving licence, and, if only provisional entitlement is held, to observe the relevant provisional licence conditions.

A 'motor vehicle' is defined in the 1988 Act as a mechanically propelled vehicle intended or adapted for use on roads. A "road" is defined as any highway, and any other road to which the public has access. Consequently it would be advisable in our view for an individual to hold the appropriate driving licence entitlement before using any of these vehicles on a "road".

If the fork lift truck is electrically propelled the driver would need a licence covering category L. Alternatively, if the vehicle is exempt from duty, under Section 7(i) of the Vehicle Excise Act 1971 because it travels no more than 6 miles a week on roads (and then only in passing between pieces of land in its owner's possession) a category N licence would suffice. A full category B (motor car) licence gives full cover for both categories L and N.

The Vehicles (Excise) Act 1971 provides that any mechanically propelled vehicle used or kept on the public road should be registered, licensed and display registration plates. If the fork lift is electrically propelled, it would be exempt from vehicle excise duty, as would a fork lift truck that travels no more than 6 miles a week on roads (and there only in passing between pieces of land in its owner's possession). A fork lift truck can also be licensed within the works truck taxation class. This class covers goods vehicles designed for use on private premises and used on public roads only for:

(a) carrying goods between such premises and a vehicle on a road in the immediate vicinity; or
(b) in passing from one part of any such premises to another, or to other private premises in the immediate vicinity; or

(c) in connection with road works while at or in the immediate vicinity of the site of such works.

To register a fork lift truck you should contact your nearest Vehicle Registration Office. They will also advise you about the taxation position, depending on the form of propulsion and usage that the vehicle in question is put to.

The driver of a fork lift would not be required to hold a driving licence when driving a vehicle on private land/site to which the public has no access, although the insurers of the vehicle may have their own policy on such matters. I would therefore suggest you contact a reputable insurance company to establish whether they would issue insurance cover to a non-licence holder."

(This was the best answer obtainable from DVLA sources)(First published 1997)

Question - Please can you clarify whether it is reasonable to charge employees who lose/damage items of Personal Protective Equipment issued to them?

Answer - This is relatively straightforward and the short answer is no. Section 9 of the Health and Safety at Work etc Act 1974 specifically prohibits the levy of any charge on any employee in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions. From the coming into effect of that section, this has included the provision of any personal protective equipment required by a specific statutory requirement. For example, under the old and very specific Protection of Eyes Regulations 1974 (now revoked), any eye protection provided for use during a specified activity in the Regulations could not be charged for. Now we have the general requirements regarding personal protection contained in the Personal Protective Equipment at Work Regulations 1992. These say that where any risks cannot adequately be controlled by other means, then suitable personal protective equipment (PPE) shall be provided. As this duty extends to any situation where risks cannot be adequately controlled other than by use of PPE then the duty under section 9 will also apply.

If employees lose or damage an item of PPE they may be in breach of sections 7 or 8 of the HSW Act 1974 which contain general duties to look after their own health and safety, to co-operate with their employer, and not to interfere with or misuse anything provided to them for health and safety purposes. Also there are regulations 10 and 11 of the Personal Protective Equipment at Work Regulations 1992 which require employees to use PPE in accordance with any training and instructions given, to store it in accordance with any instruction and training and to report any loss or defect. Depending on the terms and conditions of employment, failure to comply with any of these legal duties or a general failure to take care of company property, could be taken as a breach of company rules and be subject to disciplinary actions. (First published 1995)

Question – We make specialised electronic equipment, mostly for the armed services and subject to the Official Secrets Act. We have HSE Inspectors visit us and we are concerned in the future they may wish to view documents or take photographs etc involving secret material. Can we stop them or is that an offence?

Answer - Firstly, let me reassure you from personal experience that every inspector appointed under the provisions of the Health and Safety at Work etc Act 1974 (HSW), section 19, take the confidentiality of documents, photographs and verbal information provided to them during their work very seriously.

You are correct that intentionally obstructing an inspector (stopping them looking at documents etc) is an offence detailed in s33(1)(h) of HSW.

Their powers are given in section 20(2) and include:

(d) to make such examination and investigation as may in any circumstances be necessary...;

(k) to require the production of, inspect, and take copies of or of any entry in- any books or documents kept due to statutory requirement, any other book or documents necessary for him to see....;

(l) to require any person to afford him such facilities and assistance with respect to any matters or things within that persons control or in relation to which that person has responsibilities as are necessary to enable the inspector to exercise any of the powers conferred by section 20;

(m) any other power which is necessary for the inspector to carry into effect the relevant statutory provisions!

Section 28 deals with restrictions on disclosure of information. Section 28(7) places a duty on a person who has received information through the powers mentioned above, not to disclose that information, in particular, any information with respect to any trade secret obtained by him in any premises entered by virtue of any of his powers. This duty is relaxed where it is necessary for the purposes of his functions, for the purposes of any legal proceedings or an investigation or inquiry held by virtue of section 14(2) (an inquiry directed by the Health and Safety Commission), or with the relevant consent.

Where any information is subject to the Official Secrets Act, the restrictions would apply to an inspector. In each HSE Area Office there is likely to be one or more inspectors who have received an appropriate level of security clearance for work involving contact with, for example, the armed services. If necessary, one of these ‘vetted’ inspectors could be involved in investigations etc on your premises.

In practical terms an inspector will treat information considered to be ‘customer confidential’, a trade secret, a state secret or of similar importance as being just that. Where you believe information is particularly sensitive you should discuss this with your inspector to ensure both parties understand its significance and how it will be treated. Except in the case of classified information you would not be able to refuse access to information (but refer to above regarding vetted Inspectors).

Whilst dealing will provision of information do not forget that where a recognised trade union has appointed safety representatives, those representatives have a right to inspect and take copies of any document relevant to their workplace having a bearing on health and safety of those they represent. There are restrictions on: disclosure of information which may be contrary to national security; which could not be disclosed without contravening a statutory provision; or which is about a particular individual (except with that persons consent); information which if further disclosed could cause substantial injury to the employers undertaking; or information relating to legal proceedings. (First published 1996)

Question - I note that the Provision and Use of Work Equipment Regulations 1998, revoke the Abrasive Wheels Regulations, but see no requirement in the new Regulations for a register of persons qualified to mount wheels, etc. I would appreciate your comments.

Answer - You are correct that the Provision and Use of Work Equipment Regulations 1998 revoked the remaining parts of the Abrasive Wheels Regulations 1970. They no longer exist from 5 December 1998. Unfortunately you have highlighted one of the problems of the long term move from prescriptive legislation which tells an employer what specific steps have to be taken to ensure safety, to the self-regulatory legislation which often requires assessment of risks with some guidance. You are not alone in wondering what has to be done and why guidance has not been produced when the risks are both real and serious if matters are not handled correctly.

In theory, if presented with the worlds first ever machine fitted with an abrasive wheel, a risk assessment should highlight the problems of contact with the rotating wheel, entanglement, flying particles, wheel overspeeding and/or cracking leading to disintegration etc. All of these we were made aware of previously because of the AW Regulations 1970.

Looking logically at prevention of wheels disintegrating we should conclude that machines should be marked with the maximum spindle speed so that permissible wheel speeds can be checked first, that wheels should be checked for integrity before mounting, and be correctly mounted. To ensure all this is done correctly then the person doing so should have been provided with information and training sufficient to ensure they can carry out those actions correctly and consistently. To supplement this would require a prohibition on any person mounting wheels other than the one now deemed competent. It would seem logical to make this clear by putting a large sign next to the wheel saying this, and to have a record of who is capable of mounting wheels should an enforcement inspector ask. These (and several other) measures should ensure compliance with regulations 5, 7, 8, 9, 11, 12, 15, 16, 17, 20, 21, 23 and 24 of PUWER 1998.

I expect that the guidance that has been available for many years, HSG17 ‘Safety in the use of abrasive wheels’ will be revised and include guidance on suitable measures to ensure compliance with PUWER 1998. This will presumably include training and ‘appointment’ or registering of those persons deemed competent to inspect and mount abrasive wheels. Basically, what we need to do to ensure safe use of abrasive wheels is exactly the same as we were required to do by the 1970 Regulations. (NOTE HSG17 was revised in 2000)

(First published 1998)

Question – We are restoring old railway carriages and wish to do this in as correct and authentic manner as possible. To do this we need to use paint containing white lead but have been told this is now illegal. Is this true?

Answer - Use of white lead in paint is prohibited by the Environmental Protection (Controls on Injurious Substances) Regulations 1992 (SI 31, 1992), available from HM Stationery Office. Regulation 3 prohibits the supply and use of white lead in paint, the main lead compounds being lead carbonate and lead hydrocarbonate or lead sulphate. (2PbCO3.Pb(OH)2)

The Regulations, and therefore the prohibition, do not apply to red lead in paint as the formula for red lead (Pb3O4) is not included in the Interpretation section of Regulation 1 of the Regulations.

Paint containing white lead can only be supplied and used to restore or maintain a historic building or a fine or decorative work of art provided the supplier and user follow the procedure set out in the Schedule of the Regulations. For a railway carriage to be considered in one of these categories you would have to apply for consideration to one of the relevant authorities listed in the Schedule, the only one which appears to be relevant being The Conservation Unit, Museums and Galleries Commission, 16 Queen Anne’s Gate, London SW1H 9AA. Looking at the content of the application form also contained within the Schedule, it is unclear, and seems unlikely, a railway carriage would come within this or any of the other categories.

If it was agreed that a railway carriage was within the scope of the Regulations and work involving white lead went ahead, then any work would need to be in full compliance with the Control of Lead at Work Regulations 1980 and the associated Approved Code of Practice (COP2 - revised 1985), £3.90, available from HSE Books, PO Box 1999, Sudbury, Suffolk CO10 6FS. These Regulations are due to be replaced with updated requirements in April 1998.

To summarise, unless it is agreed by a relevant authority, white lead in paint must not be supplied or used for the renovation, repair or maintenance of railway carriages. If supply and use is approved then all storage, use and associated work must be in accordance with COP2. Paint containing red lead may be used without any approval.

The help of the HM Railway Inspectorate in preparation of this answer is gratefully acknowledged. (First published 1997) (NOTE the Control of Lead at Work Regulations were updated in 1998 then again in 2002)