Health and Safety
Executive / Commission
Falls from height
Identifying a way forward.
1. The Work at Heights Regulations (WAHR) will implement the
EC's Temporary Work at Heights Directive (TWAHD) and
consolidate existing work at heights regulations in Great
Britain.
2. The TWAHD is essentially an 'industrial' directive,
that applies to all workers, and to others, in so far as they
control the activities of others at work.
3. The UK Government will implement the directive. The work
activity side of the adventure activity sector has always come
within the scope of S3 of HSWA and other health and safety
regulations. More recently parts of the sector have been subject
to the AALA licensing scheme that came about largely as a result
of the Lyme Bay tragedy. However, there seems to be little
enthusiasm, for the idea that the adventure activities sector
should be subject to these regulations, which apply to the safety
of those working at height in general terms.
4. Enforcement of health and safety regulations by HSE and LAs
will not alter as a result of the WAHR.
5. There is great concern within the Adventure Activity sector
over these regulations, which it sees as a threat. This has
inevitably been compounded by the strong and necessary link
between sport/leisure and the work activity. The disbanding of
the AAIAC led to a higher level of suspicion between the sector
and HSE, which the sector saw as a mechanism for dealing with
civil servants directly. The repeated changes in personnel in HSE
have not helped.
6. Discussions have taken place over about two years, the most
recent at Liverpool on 31 March, for a discussion of the
sector's response to the formal consultation document. Out of
that, there appear to be 6 key issues to resolve. Resolve these
and the sector will be largely reassured, which in turn means HSE
can reassure the HSC. The issues are:
7. The adventure activities sector and HSE may have started by
looking at this issue in different ways. For example the
reference to ropes in Schedule 5 Part 3 has been 'owned'
by the sector because it uses ropes. However, their fundamental
purpose in outdoor activities is not mainly for access or
positioning as understood in an industrial context. This argument
is developed below.
8. The Directive is clearly set in an industrial context. And so
while we cannot explore the mind of the EC on this issue the
reference to rope access and positioning was most likely to be
intended to apply to 'industrial' activities such as
external construction and maintenance involving ropes.
9. There are two aspects to adventure activities: ascending the
rock protected by a fall arrest system, and descending or
ascending the rope in various ways.
10. Ascending the rock does not fall within Schedule 5 Part 3 but
will be covered by Schedule 5 Parts 1 and 4 and risk
assessment.
11. Descending or ascending the rope in various ways can from a
reasonable point of view be deemed as rope positioning/access
work (this is quite different from what is commonly understood as
'industrial rope access'), and Schedule 5 Part 3 will
apply. The NGB Guidelines and training will indicate an
appropriate approach to the task involved. This underlines the
importance of the sector's good practice and the need for
this to be continuously developed, maintained and
communicated.
12. If activity workers are engaged in rope access and
positioning activities that do not involve leading trainees e.g.
replacing or securing holds on a climbing wall, then Schedule 5
Part 3 will apply.
13. This issue is less amenable to resolution. It is also one
which is under consultation and so we are dealing to some extent
with a moving target. Nevertheless, it is unquestionably the case
that the natural environment and the effects of weather create
innumerable different types of fragile surface. These are
generally in wild and inaccessible places where the more
traditional 'industrial' responses: barriers, signs etc
are wholly inappropriate and at odds with what the sector is all
about in training unskilled people to recognise and deal with
such surfaces. This issue should therefore be seen within the
context of good practice as identified by the relevant NGB.
14. HSE can and will explore further with legal draftsmen whether
it can define these matters well enough to qualify the
Regulations. If that provides a way forward it will be presented
to the HSC for consideration. What HSE cannot do is seek to
accommodate the Adventure Activity sector at the cost of lowering
health and safety standards generally. For example, one of the
issues is clearly snow and ice. But snow and ice fall also on
fragile surfaces like skylights. If the drafting meant that roof
workers were to become exposed to greater risk it would not be
acceptable either to HSE or HSC.
15. In practice, even if implemented as drafted any incident
involving fatal or major injuries would in future be investigated
as now, and concentrate on failures in the safe system of
work.
16. The sector is concerned by reference in draft Reg 11 (b) to the phrase 'such area is clearly indicated'. HSE has clarified that 'indication' does not necessarily imply signage and can include instruction.
17. The sector accepts the purpose of Schedule 5.1.1(c) as it
applies to the activities sector but the guidance needs to be
looked at further in connection with lone working in this
sector.
The role of NGBs Guidance and their relation to the WAHR
18. The WAHR are intended to support the good practice as
identified by relevant NGB guidance and training/established
levels of competence.
19. The regulations will go to HSC in July. After that HSE will be developing high level guidance on the regulations and industries/sectors will then be able to develop specific guidance or illustrate how existing guidance underpins these regulations. HSE has offered the adventure activities sector support in this process.
The parties commit themselves to keep in touch and refine this draft in preparation for HSC's consideration of the final regulations. Where activities fall within the remit of a relevant NGB, following the guidance and good practice as identified by the relevant NGB will generally be sufficient to satisfy the requirements of the WAHR as drafted.