THE HEALTH AND SAFETY EXECUTIVE
H&S Chief hits at over-zealous use of health and safety laws|
An article by Laura Clark published in the Daily Mail on the 21st August 2006 reports Bill Callaghan, the then Chairman of the
Health and Safety Commission (HSC) - the body responsible for health and safety regulation in Great Britain - as accusing
petty bureaucrats of taking disproportionate measures to remove risks from everyday activities. According to the
article Mr Callaghan accused "pedantic" public servants of being so afraid of being hit with costly lawsuits that they are
misinterpreting health and safety laws and stripping recreational activities of fun and adventure. He was "sick and tired"
of hearing how "petty health and safety" was preventing Britons enjoying recreational activities. His message to those
responsible is 'if you're using health and safety to stop everyday activities - get a life and let others get on with
Click here to read the Daily Mail article.
There is some confusion regarding the Health & Safety at Work and the Common Law
Duty of Care (Occupier's Liability) acts. The following should help
clarify the duties and powers of the Health and Safety Executive (HSE). This
page is not intended to serve as anything other than a broad guideline. You are advised to
contact the HSE directly if you have a problem. You will find them very helpful.
Occupier's Liability is covered on a separate page.
HSE clarifies scope of 'Blue Book'
Those seeking to justify banning swimming and paddling in their lakes and rivers
often managed to manipulate ambiguities in legal requirements to their
advantage. One such source of uncertainty was the Health and Safety Commission
guidelines titled ‘Managing health and safety in swimming pools’ (HSG179) often
referred to as the 'Blue Book'.
The main piece of health and safety legislation is the Health and Safety at Work Act (1974)
(HSW Act). The act sets out the general duties which people in control of premises have towards
their employees and others who can be affected by the work activities.
to read the Act.
The guidelines were primarily written with the design and operation of
modern purpose-built public swimming baths in mind. However, despite it having a
‘limited application to pools which consist of segregated areas of rivers, lakes or the
sea’ its requirements regarding lifeguards, for example, were often extrapolated to lakes and
seaside pools which some safety experts referred to as ‘larger, more dangerous
swimming pools’. Faced with the consequential unrealistically large operational costs, authorities
usually took the easy way out and closed the facilities altogether.
We wrote to the Government in January 05 pointing out that the lack of clear guidance on operator’s obligations under
the Health and Safety at Work Act is putting the remaining open water facilities under threat. In reply we were informed
by the HSE that they were, indeed, planning to issue some clarification as to how HSG179, should be applied in certain
'non-standard' circumstances, such as open water.
The document has now been published.
to view it.
Bearing in mind that no guidelines can cover all circumstances, we think that this
document is a major step forward. Note, for example, that the Blue Book guidelines no longer apply to lakes and rivers
where operators do not actively encourage swimming. We are particularly encouraged (see below) by the HSE’s emphasis on a common sense,
down to earth approach to water safety.
The meaning of ‘encourage’ has already been established in case law.
In Wilson v Danny Quastel (Rotherhithe) Ltd  2 All ER 541 at 543 the Lord Chief Justice, Lord Parker, ruled that
the expression ‘encourage’ is synonymous with ‘incite’ and in inR v Chamey  1 KB 137 at
141, 142 the Lord Chief Justice, Sir Rufus Isaacs, held that ‘encouraging’ an activity necessarily goes
beyond merely ‘knowingly allowing’ the activity.
'An Act to make further provisions for securing the health, safety and welfare of persons at work, for protecting
others against risks of health or safety in connection with the activities of persons at work'
to read how the HSW Act affects employers who own or operate waters in which people swim and examine the wider
implications of the judicial review brought by the Hampstead Heath winter swimmers in April 2005
The Health and Safety Commission (HSC) (an overseeing body) and the HSE are responsible for the
regulation of almost all the risks to health and safety arising from work activity in Britain.
Local authorities are responsible to the HSC for enforcement in offices, shops and other parts
of the services sector.
The enforcing authority which covers swimming pools run by the local councils are the regional
HSE offices. However, If a swimming pool is run by a private company, then the enforcing
authority will be the Environmental Health Department based within the local council.
The HSE's mission is:
'To ensure that risks to people's health and safety from work
activities are properly controlled'.
Although a managed country park, for example, can be classed as a 'work place' it is hard
to imagine how swimmers in a lake within the park can be affected by normal park
Responding to a request made by us the Health and Safety Executive (HSE) clarified its
position regarding swimming in Black Park Lake. In a letter dated 18th February 2004 they acknowledged
that "The issue of public access to swim in the natural lake at Black Park is not a matter for the
HSE. The land owners, Buckinghamshire County Council, are at liberty to manage their public liability
in the best way they see fit....That is a matter entirely for them"
The HSE's job is to enforce the numerous acts which apply to the work place. It has no
The HSE publishes guidance on a range of subjects. The main purposes of guidance are:
A. To interpret - helping people to understand what the law says.
B. To help people comply with the law
C. To give technical advice.
Following guidance is not compulsory and employers are free to take other action
But if they do follow guidance they will normally be doing enough to comply with the law.
The HSE also issues Approved Codes of Practice (ACOP). These offer practical examples of good
practice. They give advice on how to comply with the law by, for example, providing a guide to
what is 'reasonably practicable'.
For example, if regulations use words like 'suitable and sufficient', an Approved Code of
Practice can illustrate what this requires in particular circumstances.
Approved Codes of Practice have a special legal status. If employers are prosecuted for a
breach of health and safety law, and it is proved that they have not followed the relevant
provisions of the Approved Code of Practice, a court can find them at fault unless they can
show that they have complied with the law in some other way.
The Government certainly has no wish to see unnecessary restrictions placed on open-air swimming
fully recognises the benefits it can offer’ [John Furlong, HSE, March 2005]
'If you believe some stories you hear, health and safety is all about stopping any activity that might possibly lead to
harm. This is not our vision of sensible health and safety. Our approach is to seek a balance between the unachievable
aim of absolute safety and the kind of poor management of risks that damages lives and the economy. In a nutshell: risk
management, not risk elimination'
[From the HSE website]