Health and Safety: A risky business

Pubs face a deluge of regulation that will affect the way you manage incidents, accidents and near-misses. John Davies assesses the situation and makes the case for better risk management.

It is not inconceivable that in the near future the chief executive of a pub chain could find themselves in the dock, charged with the manslaughter of a person they have never met. Impossible? Not if the deluge of regulation which is flooding across the licensed trade reaches its logical conclusion.

The vast majority of regulations that have already been introduced or will be coming in the near future will impact seriously on the management of incidents, accidents and near-misses in pubs.

While it's unlikely these changes will have such a draconian effect as the government's proposed corporate manslaughter legislation alluded to above, all have the potential to tie up hours of a licensee's time.

They also carry the risk of serious financial penalty unless the licensed trade gets its risk management house in order. Pubs which cannot demonstrate high standards of risk management will find it harder to secure public liability insurance cover at an affordable cost.

Personal injury claims ​

It's hardly surprising that with a mixture of alcohol and late nights nearly all licensed premises have seen a significant rise in the number of claims made for injuries cause by slips, trips and accidents. They have not only come from customers, either. Employees are becoming more litigious encouraged by ready access to the no-win no-fee services (also known as conditional fee arrangements) offered by solicitors.

Whether the claim is genuine or frivolous the impact on the licensee will be the same. You will receive a letter from a solicitor demanding detailed information under a procedure known as a "pre-action protocol". They could demand 30 or 40 items, requesting information such as copies of training records, health and safety committee minutes, pre and post-accident assessments and RIDDOR forms.

The claimant's solicitor is entitled to a response within 21 days and all requested relevant information within 90 days.

If you can't supply the information because you do not have proper records of the incident it could seriously affect your insurer's ability to defend or reject the claim.

Solicitors are entitled to ask for anything and everything they think could be relevant and if they do not receive it there is a court procedure they can follow to bring the responsible manager into court to explain to a judge why the information has not been made available.

The moral of the story is to make sure you record and investigate every incident or accident to a customer or employee, no matter how small, because you never know when it might come back to haunt you.

This burden looks likely to get worse in the near future. The Health and Safety Executive intends to issue guidelines during spring 2004 strongly recommending that an employer records every incident, accident or near-miss and investigates them to try to avoid repetition and potential injury.

Licensing reform ​ The changes introduced by the Licensing Act 2003 that will come into effect during 2004 have been pored over by publicans in depth. But have you considered the impact of the requirement for "responsible authorities" other than the licensing authority to have the opportunity to be consulted over premises licences?

Bodies such as environmental health and planning departments will be able to make representations on premises being granted a licence and that may lead to conditions being applied or the application being refused.

It is almost inconceivable that these organisations will run the risk of approving premises which cannot demonstrate the highest levels of health and safety planning and which do not have proper risk management procedures in place.

Corporate manslaughter ​

The government has proposed for some time that it will bring forward legislation to enable charges of corporate manslaughter to be brought against directors of companies which cause the death of their employees or customers.

Once introduced this will ratchet up yet further the importance of high quality risk management and accident investigation as an essential part of every pub operator's duties.

Imagine the consequences of a couple of near-misses which were not investigated followed by a death or serious injury when a similar incident occurs.

Say, for example, a bar stool collapses causing a customer to break their neck and it is subsequently proved that this was the third such stool to collapse in the last six months but those incidents were not investigated.

With a proper incident reporting procedure the risks inherent in the design of the stool could have been noted and the stools themselves removed from public areas.

Risk management and health and safety have now reached such a level of significance and financial importance to the licensed trade they can make or break a business.

Now is the time to ensure that proper watertight procedures are in place to protect your business. If you do not have the necessary time or skills talk to your insurance broker about outsourcing risk management to professionals.

John Davies is development director for hospitality and leisure at Alexander Forbes Corporate Risk Solutions. You can email him at daviesj@aforbes.co.uk.​