Health and safety: what is competence?
Health and safety at work is a serious business; getting it wrong could end up costing someone their life. It stands to reason that there should be someone ‘competent’ who is able to handle the various safety measures an employer needs to comply with wide-ranging health and safety legislation. In this article, law firm rradar considers what competence actually means.
What does the law say?
Under Regulation 7 of the Management of Health and Safety at Work Regulations 1999 (MHSWR 1999), every organisation must have access to help from one or more ‘competent’ persons to enable it to comply with health and safety law. This applies to all employers, regardless of size or sector. Nobody is exempt, although Paragraph 6 of Regulation 7 says the requirement doesn’t apply to a self-employed employer (who’s not in partnership with any other person) where they have “sufficient training and experience or knowledge and other qualities properly to undertake the measures referred to”.
Who can be a competent person?
As long as the requirements of the law are covered, the employer can appoint any one of, or a combination of:
- Themselves;
- An employee or worker in the business; or
- Someone from outside the business – a consultant, qualified legal adviser, solicitor or other.
Paragraph 8 of Regulation 7 says that if there’s an employee who’s competent then they should be appointed in preference to a competent person from outside the business.
If there isn’t anyone in the organisation who meets the requirements (and this is entirely likely in small businesses where the pool of candidates is necessarily limited) then an external professional can be appointed as a source of competent health and safety advice.
Training for the competent person
If the employer has managed to find someone in their organisation who ticks the boxes for Regulation 7, then they need to bear in mind that all training must be kept up to date; this means the competent person may need to attend refresher training at some point. Training can be delivered in-house so long as the training provider has the necessary skills and knowledge.
All training should be recorded so that if it needs to be produced to show that it happened, it will be to hand.
The duties of the competent person
We have already mentioned the requirement under Regulation 7 of the MHSWR 1999 for the competent person to:
“Assist in undertaking measures needed to take to comply with the requirements and prohibitions imposed by the relevant statutory provisions.”
The “relevant statutory provisions” basically refers to the health and safety law applying to the business in question. This will be general health and safety law, which covers all businesses, and legislation and regulation specific to that particular business – which might mean materials they use, or the processes they undertake. A competent person will be aware of these and take steps accordingly.
They should have sufficient knowledge, skill and experience to help the employer recognise hazards and set up control measures. They should also be aware of their own limitations, not try to operate outside those, and know when to seek help and guidance.
The definition of competency
The law doesn’t set out specifically what constitutes competency, because there is a wide range of situations where a competent person is required, and those situations can vary depending on a number of factors. However, some fundamental aspects will apply to most, if not all situations.
Those will include the training undertaken, whether that training is accredited by a recognised body, the knowledge and experience the competent person has of the industry/sector in which they’ll be working and the authority to put their recommendations and solutions into practice – or access to the required authority.
This will, however, vary depending on the nature and size of the business. A small office where the employees carry out only routine administrative duties will require a wholly different definition of competency from a factory where hundreds of employees are involved in complex processes with machinery and chemicals.
How many competent persons?
The employer also has to make sure that they have the right number of competent persons to match the size of the business and that those persons have the means available to carry out their role. A small business with only a single office will need fewer competent persons than a multi-site organisation employing hundreds of people.
Why not to go it alone?
If an organisation doesn’t appoint a competent person and decides to go it alone, they will be in breach of the MHSWR 1999. This means the possibility of action by the HSE, an unlimited fine and/or up to two years’ imprisonment for individuals.
Where does ultimate responsibility rest?
Even if an employer uses a consultant or external advisor, they are still legally responsible for health and safety in their workplace; they can’t delegate that to the advisor/consultant.
Due diligence
When appointing a competent person, the organisation must take steps to check out their suitability; this means asking to see evidence of relevant training and knowledge, such as formal qualifications, membership of a professional body or practical experience of providing advice in the relevant industry or area of work, and evidence of adequate insurance.
Liability and the competent person
What if a company follows the advice of a consultant and that advice turns out not to be adequate, leading to a conviction and penalty?
In 2017, at the Scottish Court of Session, a quarry operator that was fined £200,000 after an employee was killed in an accident while working on site was given permission to sue the health and safety advisor who had been employed by the company in advance of the quarry accident.
An HSE Inspector said after the hearing:
“Employers are more likely to use external consultants to provide assistance in complex situations where a higher level of competence is required. How consultants achieve competence is up to them. However, they will have to be able to satisfy employers that they have a sufficient level of competence for the job in hand.”
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