Assessing compliance with the law in individual cases and the use of good practice

Revised May 2003

Contents

• 1. Scope
• 2. Definitions
• 3. Policy

1. Scope

1.1 The Health and Safety Executive is responsible for making adequate arrangements for the enforcement of health and safety legislation in the UK. In fulfilment of its duty, the Executive provides guidance to its regulatory staff who have to judge whether measures put in place, or proposed, by those who are under a duty to control and reduce risks "as low as reasonably practicable" (ALARP), are acceptable.

1.2 This document provides guidance on what constitutes good practice and on how relevant application of good practice contributes to the duty to reduce risks 'so far as is reasonably practicable' (SFAIRP) or demonstrate that risks have been reduced ALARP. It complements, 'Principles and Guidelines to assist HSE in its judgements that duty-holders have reduced risk as low as reasonably practicable'' and "Policy and guidance on reducing risks as low as reasonably practicable in Design". Together, these three documents have been issued as guidance in support of the HSE document "Reducing Risks, Protecting People" (R2P2).

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2. Definitions

2.1 Good practice:

Within HSE and in this document, good practice is the generic term for those standards for controlling risk which have been judged and recognised by HSE as satisfying the law when applied to a particular relevant case in an appropriate manner.

Explanatory notes to the definition.

1. Written good practice may take many forms. The scope and detail of good practice will reflect the nature of the hazards and risks, the complexity of the activity or process and the nature of the relevant legal requirements.

2. Sources of written, recognised good practice include:

   • (i) HSC Approved Codes of Practice (ACOPs);
   • (ii) HSE Guidance;
     NB: ACOPs give advice on how to comply with the law; they represent good practice and have a special legal status. If duty-holders are prosecuted for a breach of health and safety law and it is proved that they have not followed the relevant provisions of the ACOP, a court will find them at fault unless they can show that they have complied with the law in some other way. Following the advice in an ACOP, on the specific matters on which it gives advice, is enough to comply with the law.

3. Other written sources which may be recognised include:

   • guidance produced by other government departments;
   • Standards produced by Standards-making organisations (eg BS, CEN, CENELEC, ISO, IEC);
   • guidance agreed by a body (eg trade federation, professional institution, sports governing body) representing an industrial/occupational sector.
4. Other, unwritten, sources of good practice may be recognised if they satisfy the necessary conditions (see 'Policy - identifying good practice' below), eg the well- defined and established standard practice adopted by an industrial/occupational sector.
5. Good practice may change over time because, for example, of technological innovation which improves the degree of control (which may provide potential to increase the use of elimination and of engineering controls), cost changes (which may mean that the cost of controls decreases) or because of changes in management practices.
6. Good practice may also change because of increased knowledge about the hazard and/or a change in the acceptability of the level of risk control achieved by the existing good practice.
7. In the definition of good practice, 'law' refers to that law applicable to the situation in question; such law may set absolute standards or its requirements may be qualified in some way, for example, by 'practicability' or 'reasonable practicability'.
8. 'Good practice', as understood and used by HSE, can be distinguished from the term 'best practice' which usually means a standard of risk control above the legal minimum.

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3. Policy

Overall approach

3.1 In support of the following policy, HSE:

1. provides guidance to inspectors on the law, its interpretation by the courts, and on good practice;
2. maintains mechanisms to guide the exercise of inspector discretion in order to promote consistency in assessing compliance and deciding on a proportionate response.

3.2 In securing compliance with the law in accordance with the HSC Enforcement Policy principles of proportionality, consistency, targeting, transparency and accountability, HSE inspectors take account of the legal interpretations given in statute, relevant case law and the guidance in 'Principles and Guidelines to assist HSE in its judgements that duty-holders have reduced risk as low as reasonably practicable' which contains specific advice on the application of good practice.

Use of good practice

3.3 To promote effective compliance and improved health and safety performance by duty-holders, HSE may develop and recognise good practice and draw this to their attention. In some circumstances, to promote consistent, cost-effective assessment by inspectors, HSE makes use of good practice to guide decisions when judging the adequacy of compliance and applying the differing legal tests, (eg 'absolute', 'practicable' or 'reasonably practicable').

3.4 In judging compliance, HSE expects duty-holders to apply relevant good practice as a minimum. For new plant/installations/situations, this will mean the application of current good practice. For existing plant/installations/situations, this will mean the application of current good practice to the extent necessary to satisfy the relevant law.

3.5 Where the law requires risks to have been reduced ALARP, HSE:

1. may accept the application of relevant good practice in an appropriate manner as a sufficient demonstration of part or whole of a risk/sacrifice computation;
2. does not normally accept a lower standard of protection than would be provided by the application of current good practice; and
3. will, where the duty-holder wishes to adopt a different approach to controlling risks, seek assurance that the risks are no greater than that which would have been achieved through adoption of good practice and so are ALARP for that different approach.

3.6 Compliance with relevant good practice alone may be sufficient to demonstrate that risks have been reduced ALARP. For example, recognised standards provide a realistic framework within which equipment designers, manufacturers and suppliers (including importers) can fulfil their general duties under HSWA S.6.

3.7 However, depending on the level of risk and complexity of the situation, it is also possible that meeting good practice alone may not be sufficient to comply with the law. For example, in high hazard situations (those with the potential to harm large numbers of people in a single event), where the circumstances are not fully within the scope of the good practice, additional measures may be required to reduce risks ALARP. Furthermore, where the potential consequences are high, HSE will take a precautionary approach by giving more weight to the use of sound engineering and operational practice than to arguments about the probability of failure.

3.8 In simple terms, in situations such as described in paragraph 3.7, duty-holders need to:

1. review their accident scenarios and risk management arrangements (for prevention, control and mitigation);
2. identify what good practice is relevant;
3. comply with the good practice (to the extent to which it is applicable);
4. ask the question - are there any other measures which would be effective in further reducing the risks?
5. determine whether the extra measures are reasonably practicable and implement those that are.

Identifying good practice

3.9 In judging and recognising good practice, HSE must be satisfied that it is correctly formulated in that it:

1. takes account, where relevant, of:
   • individual risk, societal risks and societal concerns;
   • the sacrifice and benefits;
   • the technical feasibility of proposed control measures and the level of risk control they achieve;
2. maximises the use of:
   • inherent safety and the elimination of hazards;
   • the avoidance of risk;
   • the control of risk at source by the use of physical engineering controls;
     
     whilst it,
3. minimises the need for:
   • procedural controls; and,
   • personal protective equipment;
     
     and it is in a form that:
4. clearly defines the scope of the good practice and the circumstances where it is relevant; and,
5. can be clearly specified, eg it is either written down or is a well-defined and established practice adopted by an industrial/occupational sector.

Assessing compliance with reasonable practicability

3.10 When reviewing health or safety measures on an existing plant, installation or situation (such as when considering retrofitting, safety reviews or upgrades), duty-holders should compare existing measures against current good practice. The good practice measures set out should be adopted so far as is reasonably practicable. It might not be reasonably practicable to apply retrospectively to existing plant, for example, all the good practice expected for new plant. However, there may still be ways to reduce the risk eg by partial solutions, alternative measures etc.

3.11 In determining what is reasonably practicable, the starting point for the risk/sacrifice computation should be the current situation. Duty-holders should also consider the adequacy of the relevant good practice (paragraphs 2.1.e. & f. are appropriate considerations). When a code or standard is updated to a higher standard, the plant, installation or situation should be examined to see if it can be brought up to the new standard. Any such upgrades should be undertaken if reasonably practicable.

3.12 New plant, installations or situations should conform to current good practice, as a starting point. Other potential options should be considered to determine whether further risk reduction measures are reasonably practicable. As a guide, designers can aim and compare against levels of safety that are known to have been achieved in other "best practice" designs.

3.13 The use of good practice at the design stage is essential to demonstrating achievement of ALARP. This should include use of sound design principles (eg inherent safety) as well as codes, standards and guidance. Further advice is given in "Policy and guidance on reducing risks as low as reasonably practicable in Design"

3.14 In prioritising its resources, HSE may decide in an individual case not to pursue further action where a duty-holder has reduced risk to within the 'broadly acceptable' region of the TOR framework (see R2P2, para.122ff, for an explanation of this framework) and only a small reduction in risk would be achieved." However, the legal duty to reduce risks ALARP remains.

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Updated on the HSE website 17 June 2003