The guidance Striking the balance between operational and health and safety duties in the police service will assist senior police officers in balancing risks in their wider duties for:
- fighting crime and protect the public, while
- meeting their health and safety at work obligations
An explanatory note supporting the guidance gives clear advice on how effective policing can be delivered without compromising health and safety. It also makes clear that police officers will not face investigation or prosecution for putting themselves at risk to protect the public.
The guidance includes realistic examples to show how consideration of sensible health and safety in an emergency works in practice.
The role of the employer in the police service
The Police (Health and Safety) Act 1997 established that the chief officer of a force is to be treated as the employer of police officers for the purposes of the Health and Safety at Work etc Act 1974 (HSWA). This gave police officers the protection of health and safety law while they were at work, as, for HSWA purposes, they are to be treated as employees.
In 2005, Clause 158 of the Serious Organised Crime and Police Act amended Section 51A of HSWA, concerning the application of Part 1 of the Act to police. It changed the position of chief constables to that of 'employer' and established the 'relevant officer' as a 'corporation sole'.
In essence this means that chief constables/commissioners will not be held personally liable for any breaches of HSWA within their force, except in cases where the breach is proved to be as a result of the individual chief officer's personal:
- consent to the commission of the offence
- conniving in its commission
- neglect
Provided none of these actions are evident, liability will be the responsibility of the 'Office of Chief Constable or Commissioner'.
As 'employees' under HSWA, all police officers have duties under Section 7 (a) and (b) of HSWA, as do civilian police staff.
Every sworn police officer is a constable irrespective of rank. Sworn officers hold 'the office of constable' and are servants of the Crown, they are not employees.
For health and safety law purposes, sworn police officers are considered employees of the 'Office of Chief Constable'. It is the duty of this 'office' to ensure, so far as is reasonably practicable, the health, safety and welfare of sworn police officers.
All other staff may be employed either by the Office of Chief Constable or the Office of Police and Crime Commissioner as both of these are legal entities under the terms of the Police Reform and Social Responsibility (PRSR) Act 2011.
It is the duty of these 'Offices' to ensure the health, safety and welfare of their employees under section 2 of HSWA and to discharge the duty under section 3 in respect of others (including the public) who may be affected by the work activities of the force.
HSE as enforcing authority
HSE is the enforcing authority for police forces across Great Britain. This is because Regulation 3(1) of the Health and Safety (Enforcing Authority) Regulations 1998 states that:
‘Where the main activity carried on in non-domestic premises is specified in Schedule 1, the local authority for the area in which those premises are situated shall be the enforcing authority for them, and the Executive shall be the enforcing authority in any other case including the common parts of domestic premises.’
Therefore, as stated, HSE shall be the enforcing authority for 'any other case' not specified in Schedule 1 and as police forces and policing activities are not specified, it follows that HSE is the enforcing authority.
Regulation 4 of these Regulations details some exceptions where even though activities declared in Schedule 1 are taking place, HSE will be the enforcing authority rather than the local authority.
Buildings occupied by local policing bodies (Police and Crime Commissioners, the Mayor's Office for Policing and Crime (in relation to the metropolitan police district) and the Common Council (in relation to the City of London police area)) are included as one of these exceptions.
Therefore, as an example, although 'offices activities' are included in Schedule 1, Regulation 4 clarifies that if these are taking place in a building occupied by the local policing body, HSE will be the enforcing authority.
Exemption from health and safety legislation for police services
HSE expects the police to comply with the law. Health and safety regulations may provide for exemptions from any requirement or prohibition imposed by or under any of the relevant statutory provisions under the requirements set out in Section 15 of HSWA.
In some circumstances where it might not be possible to comply, HSE has the power to grant exemptions from the requirements of Regulations. HSE will only grant an exemption if satisfied that health and safety standards will not put the people likely to be affected, at any risk. An exemption may be subject to certain conditions and can be revoked by HSE at any time.
Setting staffing levels for uniform officers
Staffing levels are not just a matter of numbers but also about ensuring staff have suitable knowledge, skill and experience to operate safely – having the right people in the right place at the right time. Determining the numbers of police officers required for specific operational policing activities is an operational decision for each individual force.
Each force is legally required to conduct a suitable and sufficient risk assessment for operational activities bearing a significant risk. This should include consideration of the number of officers necessary to ensure the health and safety of those involved, taking into account the nature of the activity, time and location.
If there is a significant change in circumstances then the assessment must be reviewed and suitable arrangements put in place to manage the risk which may include altering the minimum number of officers required.
When body armour should be worn
The first stage in considering whether body armour should be provided is a risk assessment, conducted in accordance with the Management of Health and Safety at Work Regulations.
This requires every employer, in this case chief officers, to make a suitable and sufficient assessment of the risks to health and safety that their employees are exposed to at work. For police officers and operational police staff, such an assessment would need to include the risk of violence.
Where a risk cannot be adequately controlled by other means, then suitable personal protective equipment (PPE) can be provided, as a last resort. This requirement is found within the Personal Protective Equipment at Work Regulations.
The decision to issue body armour must be based on a risk assessment. If the outcome of the assessment is that body armour should be worn at all times then the force must ensure that is complied with. If the assessment indicates that it is only needed in certain circumstances then it must ensure that the distinction between times and circumstances are clearly understood and applied.
Safety of protesters during demonstrations ('kettling')
His Majesty's Inspectorate of Constabulary and Fire and Rescue Services has published a report Adapting to protest. The report contains a number of recommendations which relate directly to the welfare and safety of protesters. Other recommendations relating to training and guidance are also relevant.
HSE has a role in connection with the safety of members of the public arising from policing activities but there are no duties under HSWA which relate to their welfare.