A regulation tie-up?18 February 2013

As part of its review of health and safety legislation, the government has been considering whether regulations covering related topics such as lifting and loading operations could be pulled together. Is a merger of PUWER and LOLER still on the cards?

If you believe that regulations such as the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) are primarily about compliance – box-ticking, if you will – then think again.

Double skull fracture, facial fractures and a fractured eye socket… not to mention ongoing physical and mental suffering, leading to enforced early retirement. That was the result of a breach of LOLER for one unfortunate individual.

At the time of his accident in December 2010, Jim McGowan was employed by MD Engineering Services (UK). The company had secured a contract to remove redundant machinery and equipment from the Hartlepool site of SAICA Pack. McGowan was removing equipment from a mezzanine platform and had bent over to hook a lifting sling on to the fork of a forklift truck, operated by a colleague.

As the forks were raised, one caught on the stop bracket of the gate to the mezzanine. The driver, unaware of this, continued to raise the forks; the resulting force was such that the bracket sheared, releasing the fork. It sprung up, striking McGowan on the forehead.

An investigation by the Health and Safety Executive found that SAICA Pack had failed to ensure the work was carried out by competent persons and its control of contractors was inadequate. HSE also found that MD Engineering Services had failed to adequately assess, plan and carry out the lifting operation, or ensure that the workers sent to do the job had been properly trained.

Regulation 8(1)(c) of LOLER states: 'Every employer shall ensure that every lifting operation involving lifting equipment is carried out in a safe manner.' In December 2012, Hartlepool Magistrates' Court found MD Engineering Services guilty of breaching this regulation. It was fined £4,000 with £4,600 costs. SAICA Pack was fined £13,000 plus costs for failure to comply with Section 3(1) of the Health and Safety at Work etc Act 1974.

Far from scaremongering, sadly this is an all too common result of non compliance when it comes to lifting and loading equipment – although, in this case, it could have been much worse. HSE inspector Victoria Wise said after the hearing: "What happened on that day was totally preventable… It clearly illustrates the importance of ensuring that lifting operations are properly planned and managed by a competent person." More tellingly, perhaps, McGowan's wife Brenda said: "Jim was lucky; he could have been killed in this terrible incident."

Examination time
As well as LOLER, a key regulation affecting lifting and loading operations is the Provision and Use of Work Equipment Regulations 1998 (PUWER). As its name implies, this has a much wider scope than lifting equipment – requirements are that the right work equipment is used by the right (trained) people, and that its ongoing safety is ensured by inspection and maintenance.

A formal legal requirement for Thorough Examination of equipment such as forklift trucks is laid down by LOLER regulation 9. These rules only apply to the lifting mechanism – but under PUWER regulation 6, employers must also perform regular inspections and ensure work equipment remains safe to use.

Tony Wallis, sales and marketing director at forklift truck supplier Toyota Material Handling, believes Thorough Examinations are still something of a mystery to some businesses: "It's the one area that appears to cause most confusion," he says. "Irrespective of the ownership of the equipment, it is the site operator who is responsible for making sure this examination is carried out."

One exception is short-term rentals: "When renting a truck on short-term hire of up to one year, the rental company should carry out the inspection – but the hirer should always check, so ask for a copy of the report," advises Wallis. "Many companies assume their insurance company undertakes these examinations as part of the annual plant inspection, but our experience shows this isn't always the case."

Statutory simplification
When Professor Lofstedt delivered his review of health and safety legislation to the government in November 2011, 'Reclaiming health and safety for all', his report included recommendations for simplifying and streamlining the raft of regulations. Notably, he highlighted 10 regs that account for the heaviest administrative costs for businesses. PUWER and LOLER were both cited, due to the costs of checking and recording examinations of equipment.

Loftstedt said: "One potentially significant benefit of consolidating the regulations into a few sets, linked by common themes or principles, is that the streamlined sets of regulations would help businesses, particularly new ones, understand their duties better..."

However, he added that while merging sets, such as LOLER and PUWER, may help some, this wouldn't make a sufficient dent in the number of statutory instruments. Also, such a move "would still take time and duty holders would still incur familiarisation costs". The position has yet to be finalised, however – see box, below.

No room for complacency
The Lifting Equipment Engineers Association (LEEA) welcomed the fact that Lofstedt recommended keeping LOLER largely unchanged. This, said the association, reflects LEEA's view that LOLER is largely a sensible, flexible and effective approach to safe lifting.

However, the association cautions against complacency – it says a significant number of employers still struggle to meet their legal obligations. Common problems include: failing to understand the wide range of equipment that LOLER covers; confusion about documentation that should accompany equipment, such as new lifting gear; and the inability to secure return on investment from lifting-related training, given that a range of disciplines, such as planning, supervision and operation, have to be covered. The LEEA has an accredited training company scheme: see www.leea.co.uk

Final word to Toyota's Tony Wallis: "Any lifting equipment is only as safe as the operators using it. Most employers ensure their employees have the training they need to comply with legislation, but you need to instil a culture of safety to support that."

Latest position on PUWER-LOLER consolidation
Last year, Richard Matthews QC was instructed by the government to look into the legal practicability and effects of adopting any of Lofstedt's four main options, namely: to consolidate all regulations into one overarching regulation to bring together those regs that contain common provisions; to consolidate regs into a smaller number, by theme (such as general management issues); and to merge those that cover related topics.

Matthews' report was published in December 2012 and an HSE spokesman told us his report will be considered at the next board meeting, planned for the beginning of February 2013. Matthews concludes in his recommendation that: "Merging LOLER with PUWER would not result in any reduction in the number of provisions but would impact upon the volume of any consolidated ACOP [Approved Code of Practice] and Guidance.

"Businesses would remain best served by specific guidance being available concerning lifting equipment. In the absence of any evidence that industry affected by LOLER and PUWER believes that it would benefit in any way from such a merger, there could only be the negative consequence of duty holders incurring familiarisation costs."

So, albeit unlikely, consolidation of PUWER and LOLER has not yet been ruled out. Watch this space.

Laura Cork

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