Clear as mud. When deciding what is all practicable steps that are reasonably practicable to take I suggest that common sense is a guide (the actual factors are set out in the legislation so if you are interested go and look at them)
Here goes an example. In our office let’s say two female employees have recently fallen down our internal steps. What are we required to do – what is reasonably practicable to ensure our employee’s safety and what would a court look at if we were prosecuted.
First look at the nature and severity of the harm that may be suffered if the stairs are not made safe (assuming the problem is with the stairs) – well if you fall down stairs you can really hurt yourself.
What is the current state of knowledge about the likelihood that harm (of that nature and severity) will be suffered if the (safe) result is not achieved - we know there is a likelihood of harm because two people have fallen down the stairs; the issue is of course is the problem the people or the stairs? – If the two people that fell were wearing high heel shoes then is the problem the shoes? – is the problem loose carpet? – Do the stairs conform to building codes – i.e. are they too steep. So we need to find out all this.
Once it’s been identified, can you fix the problem and if so how much will it cost? - Do you ban high heels at work?- do you re carpet the stairs? – if they are non conforming do you rip out the stairs and built a new set? – do you install an escalator (which have their own safety issues)? - do you put in a lift? – do you ban people from going from floor to floor?
The availability and cost of each of those means – unless the stairs are non conforming to the building code then one would think the obvious answer is to have a sign warning people to be careful ( I know …) and check that the surface of the stairs is safe and if not fix it . .
Banning high heels would be over my dead body – as I get older my heels get higher.
So an employer needs to weigh up issues such as the nature and severity of possible harm, and the benefit of preventative action against the cost. The Act requires an employer take all reasonably practicable steps to guard against potential hazards, rather than a certain, complete protection against all potential hazards.
Employers also have a duty to “to anticipate “irrational, unwitting, intentional or unthinking” behaviour by employees.
Going back to an old problem about helmets on Quad bikes. In my opinion it’s not enough for employers to supply helmets for motorbikes and then ignore the fact if employees don’t wear them. If they refuse to wear them then in my view this is grounds for warnings and if necessary dismissal.
In my opinion what we need more of is “hindsight”; the sort that identifies the problem after it has arisen and killed someone.
The ally of “hindsight” is “forethought” and that is the factor that the Courts will take most interest in, in deciding whether something was reasonably practicable. Was an unhealthy or unsafe outcome reasonably foreseeable and what did you do to counter the potentially negative impact of that foreseeable outcome. Remember the onus is employers and employees, both, to identify then eliminate, isolate or minimise the adverse impacts of identified hazards.
Read Part 1 here
