Health and Safety: How Safe is Safe Enough?

This article is in a series aimed at equipping churches in the area of Health and Safety compliance. Sign up to receive our regular emails to be notified when they are published.

We have previously explored the obligations churches encounter under health and safety law, including the general requirement to assess and manage risk.

However, when we start getting into the detail of specific risks, we frequently run into the question of how far we have to go in order to meet those legal obligations. How safe is safe enough?

The main legislation relevant to this question is the Health and Safety at Work Etc. Act 1974. This sets a standard of ensuring safety ‘so far as is reasonably practicable’ (often abbreviated as SFARP), which serves as the legal definition of ‘safe enough’. Regulatory guidance also sets an expectation to take account of all ‘reasonably foreseeable’ causes of harm.

What, then, does it mean for something to be reasonably foreseeable or reasonably practicable?

Health and safety law requires the management of all ‘reasonably foreseeable’ risks, and negligence law uses this as a basis for determining culpability. This concept is defined by three tests:

• Common knowledge: what anyone might reasonably be expected to know.
• Industry knowledge: what someone familiar with the industry might be expected to know.
• Expert knowledge: what only a specialist would know.

For example, churches would be expected to foresee any risks that pass the common knowledge test, for example recognising the risks associated with working at height or naked candle flames.

But they would also be expected to foresee anything passing the industry knowledge test for a comparable industry or operation, for example those responsible for church buildings – the volunteer/staff member to whom they have delegated this- ought to know more than the average person about managing asbestos and legionella risks.

Expert knowledge would apply to those carrying out more specialised safety checks, for example an asbestos survey or the inspection of a gas system.

As an aside, we can actually find a biblical basis for this concept in Exodus 21:28-29, which considers culpability for a fatal accident involving an aggressive bull on the basis of whether its behaviour could be considered reasonably foreseeable by its owner.

In practice, a church with a large building used extensively throughout the week for a wide range of activities will require trustees or staff/volunteers with knowledge comparable to a similarly set-up and used building in another sector.

A church with a smaller building perhaps simply used for Sunday services and a Bible study might not need the same level of knowledge and should be managed in a manner proportionate to its risk.

Ensuring safety “so far as is reasonably practicable” means identifying all the safety measures that could reduce our safety risk, implementing all the ones which are reasonably practicable, while rejecting those which are not.

This is a highly subjective concept, the ultimate test of which is in court in the event that we find ourselves being prosecuted – a test we hope not to encounter!

However, the courts have a well-established interpretation based on case law, which we can use as a guide to staying on the right side of the law. In this interpretation, we weigh up the safety benefit a potential measure might give us against its cost in time, money, effort and disruption - effectively performing a cost-benefit analysis.

If the costs are grossly disproportionate to the benefits, the measure is not reasonably practicable. Otherwise, the measure is reasonably practicable and should be implemented.

This still requires subjective judgement: the safety benefits and non-monetary costs will usually be hard to quantify, so this is not an analysis we can punch into a calculator to get a simple answer. Even if we could, there is no fixed definition of how much cost has to outweigh benefit to be ‘grossly disproportionate’.

We can see, however, that the legal standard does not require us to do everything that is physically possible. If we consider something to be grossly disproportionate, we can justify not doing it - but make sure this argument is documented as part of the risk assessment, so there is a paper trail should this decision be challenged!

Conversely, we may have to put in safety measures where we consider the cost to slightly outweigh the benefit, if it does not reach the level of ‘grossly’ outweighing it.

If all this sounds a bit abstract and you are still wondering how to decide, for example, how to manage Legionella risk or how to store hazardous cleaning substances, there is further help available.

The courts recognise that in most practical scenarios, safety can be judged to have been managed “so far as is reasonably practicable” if we can demonstrate that we have followed established good practice.

To this end, the Health and Safety Executive (HSE) has published a series of Approved Codes of Practice, also known as the L-series, which have a special legal status. If you follow the practical advice they contain on a specific aspect of safety, you will generally be compliant with your legal duties in that area.

You are permitted to use alternative methods to comply with the law. However, if you are prosecuted for a breach of health and safety law and did not follow the relevant Code(s), you bear the burden of proof for demonstrating that your alternative method was good enough. In essence, you should follow the guidance or be able to show that you have a solid reason not to.

A worked example

Let’s consider some work at height examples where the height and frequency of a task would determine the effort / investment to be made.

• Changing a light bulb 2-2.5 metres up (standard ceiling height in a home): getting a professionally rated set of steps / platform so this can be done by someone with basic training would be an acceptable / expected level of effort.
• Changing a light in a church auditorium 5+ metres up: you would be expected to get a mobile tower / scaffolding and ensure whoever was doing the work had additional specialist training in using the equipment. This could take several days to complete. You may even consider outsourcing this.
• Working on a roof: you would be expected to have more permanent scaffolding or means to prevent someone falling, which might be a significant cost.

The principles of reasonable foreseeability, reasonable practicability, and gross disproportion apply throughout safety management.

Most health and safety legal requirements are not prescriptive but require a lot of subjective judgement on our part.

We can often identify recommended good practice but, when there is doubt, we will fall back on the general principles of identifying all reasonably foreseeable risks and ensuring safety so far as is reasonably practicable by identifying and implementing any measures which do not carry a grossly disproportionate cost.

If we do this, and are satisfied that we can show this when challenged, we can be satisfied that we are meeting our legal obligations.

Next Steps

We will explore how to apply these principles in several specific areas of health and safety in further articles in this series. Further guidance is also available:

• The Health and Safety Executive (HSE) published Approved Codes of Practice are available to download for free. We have highlighted those that are likely to be particularly relevant for churches on our Health & Safety page.
• Further HSE guidance can be found on their website.
• For more tailored support, you can contact Pierre Carion, a Health and Safety Consultant specialising in supporting churches. He co-authored this article and can be contacted by email at [email protected].
• You can also contact the Association of Church Accountants and Treasurers (ACAT) who provide training in health and safety, risk management, and legal duties of trustees in addition to their core work supporting treasurers and others involved in church finance. nb. FIEC churches have block membership with ACAT.
• You could also speak to your insurance provider as they will often have their own view on ‘how safe is safe enough’ for the purposes of your policy.

Please sign up for our regular emails to be notified of future articles and resources. This article is the second in a series looking at a range of safety and compliance topics, including Risk Assessment, Property Safety, Food Safety, and First Aid.