CHAPTER 3 - LEGISLATIVE ISSUES

The Regulatory Structure

1.             Historically, the thrust of health and safety regulation has changed since FAW came into force in 1982 moving from a prescriptive regime to one based on the employer carrying out workplace risk assessments.  For example, duties under health and safety legislation now generally require a risk assessment to remove, reduce or control risks to prevent accident or injury.  Moreover, regulation has been clarified by brigading a number of different health and safety issues together as “Management” issues. The Management of Health and Safety at Work Regulations 1999 have such a focus, as do the Workplace (Health, Safety and Welfare) Regulations 1992 which legislate on the provision of healthy and safe environment and facilities in the workplace.

2.             A key message that came through strongly from the research was the positive attitude of employers that they should make first aid provision for their employees. It could be argued that most employers would take such action regardless of whether or not they had a legal obligation to do so but another positive response noted was that first aid is good “health and safety practice”. It would appear first aid is considered in these terms although acknowledged to be a welfare rather than a health and safety issue. Equally, employees and their representative bodies expect employers to make this provision.

3.             HSE asked the researchers to consider whether there would be benefits from a change in the regulatory structure, in particular if FAW were to cease to be “stand-alone” regulations and be integrated with other regulations covering the management of workplace health and safety (as those described above). This might encourage employers to identify first aid as an integral part of their health and safety management regime.

Questions:

Q1.  Should FAW be incorporated into other health and safety management regulations?

Q2. What benefit, if any, would this be to employers in assessing and making their first aid provision?

Effectiveness of the Regulations and Guidance

4.             The objectives of FAW are to ensure employers have made the appropriate arrangements for workers who are injured or taken ill at work to receive immediate attention and that an ambulance is called in serious cases. HSE asked the researchers to consider whether the current arrangements are the most appropriate and cost-effective way of delivering these objectives.

5.             Overall there was general agreement that FAW has been and is effective. There is no evidence to suggest problems in the current regime that could be a detriment to employees if injured or taken ill at work. It is also fair to say that there is no hard evidence on the benefits to workers who have used the services of a first-aider as the effectiveness of the intervention by a first-aider is rarely recorded. In general, records are only kept of serious accidents or illness and give just the medical outcome.

6.             The researchers were asked to identify areas of further advice and guidance needed by all those involved in first aid at work.

7.             These factors could all have an impact on how effectively these regulations are put into practice by employers.  Moreover, it is clear that there is confusion among a number of employers, particularly in small companies, about meeting their duties to make first aid provision.  A solution to this could be to make HSE guidance more informative and helpful.

Questions:

Q3.  Does FAW make clear the roles and duties of employers, first-aiders and appointed persons?

Q4. What additional guidance should HSE give on making a first aid needs assessment?

Q5. What other areas of first aid at work does HSE need to clarify or provide new guidance on?

Implementation Costs of the Regulations

8.             Employers incur costs in meeting their duties to protect the health and safety of their employees. This also applies to welfare provisions including first aid at work. The research survey highlighted the perceived benefits, in particular by employees, of first aid provision in the workplace. Respondents generally thought that the costs of first aid provision were reasonable compared to the potential costs incurred for other activities in the workplace or in work-time which do not give a specific benefit to people. Although in many workplaces the services of the first-aider are rarely, if ever, required, the perceived benefit they bring is still agreed.

9.             Against the above costs, benefits may be assumed by calculating the number of hours that through intervention the first-aiders would save in terms of ‘lost time’ before a benefit occurs, using the same assumed hourly rate cost.  Breaking down the figures establishes that in terms of cost benefit using the above figures, a first-aider would need to intervene to save an average of 1.8 days of lost time per annum due to injury or illness before a benefit can be economically demonstrated.

10.         The researchers also found that small and medium sized companies had the greatest concerns about the costs of complying with FAW, although approving of the benefits. These are not just the costs of training the first-aider but that of lost time attending courses. Another issue is the comparative cost of training first-aiders as opposed to appointed persons – where there is no current requirement to train – and the balance of numbers required between them. This is a particular concern in “low risk” workplaces trying to make the cost of first aid provision reasonable. The researchers did find confusion about the role of appointed persons and whether there is in fact a need for more appointed persons and less first-aiders. This issue is explored more fully in Chapter 4.  

11.         The researchers’ findings led them to recommend minor modifications to FAW and the ACoP. Primarily this would be to allow employers greater flexibility in meeting the requirements in levels of first aid personnel – by adjusting the balance of first-aiders/appointed persons – thereby allowing for greater proportionality to the risks of injury or illness in the present day workplace.

Question

Q6. Should HSE guidance include examples of comparative costs of making first aid provision?

Application of FAW to other than employees

12.         HSE guidance strongly encourages employers to consider members of the public and others on their premises when carrying out their assessment of first aid needs and to make appropriate provision. However, there is no requirement under FAW for employers to make any provision for members of the public or others on their premises. Indeed, there is no other legislation requiring the provision of first aid facilities and equipment. FAW are a welfare provision for employees and are regulations made under the Health and Safety at Work etc Act 1974 (HSWA). HSWA would not be the best vehicle for requiring provision of first aid to the public as it cannot be done under the existing structure of the Act and would require a change in the law. Such action could be taken but extending these regulations to the public cannot be considered as reasonably within the prime purpose of HSE.   

13.         Employers already have certain responsibilities towards the public on their premises as well as to their employees. All employers have to comply with HSWA. Specifically, Section 3 of the Act places a general duty on employers to ensure that, as far as is reasonably practicable, people not in their employment are not exposed to risks to their health and safety arising from that employer’s undertaking. At sports and entertainment events the health and safety of the public is protected through a licencing regime. The organisers do not have to provide specific first aid equipment and facilities but this is one of a number of areas where adequate provision must be demonstrated in order to obtain a licence from the local authority to hold the event.

14.         The researchers were asked to explore the interaction between the requirements of FAW and other demands on the same first aid resource, for example members of the public or schoolchildren, and to consider the implications for adequate provision for those who are not workers.

15.         It is easy to identify those workplaces where people other than employees are likely to be on the premises. Shops and shopping centres, places of entertainment, sports stadiums, airports and stations are obvious locations.  In fact, every employer will have non-employees on their premises at some time or another.

16.         Schools and educational establishments have students and other members of the public visiting their premises. Schools have a legal duty of care towards their students and the DfES publish guidance on making first aid provision available for all on school premises. This guidance is based on the provisions of FAW.

17.         But should we expect every employer to make first aid provision for the public, especially if it is very difficult to estimate the potential numbers there will be? While large establishments can and do provide for the public it might not be reasonable to expect smaller businesses to make similar provision. The extra costs required for a shopping centre to provide first aid facilities would be considered an integral part of the provision of services and could be shared among the retailers. It would be perceived as a “benefit” that would be expected by the customers. But an employer in a small shop with only one or two employees who had identified no need for a fully qualified first-aider for their employees might feel it a disproportionate legal and financial burden if the numbers of people entering the shop had to be taken into account and that they were now required to make such a provision.

18.        Associated with this question is the provision of further equipment under the umbrella of “first aid”. For example, an issue that has raised attention recently is whether employers should provide automated external defibrillators (AEDs) in their workplaces.  If AEDs were widely available in public places, and sufficient numbers of people were trained to use them, it would greatly increase the likelihood that a person who suffered a cardiac arrest would be defibrillated within 2 minutes.  The Department of Health is operating a scheme to provide AEDs in public places with a high throughput of people, such as railway stations, airports and some large shopping malls. The scheme involves training large numbers of staff at these sites in Basic Life Support (BLS) and the use of an AED.

19.         However, cardiac arrest is unlikely to be caused by a factor in the workplace, but the duty to make first aid provision for employees is not restricted to illness or injury caused by work. In certain “low risk” workplaces, such as offices, a first aid assessment might conclude that the risk of an employee suffering a heart attack, though low in absolute terms, was actually higher than the risk of a serious workplace related injury or illness. In such circumstances the employer might conclude that the provision of an AED was justified. This would require additional training for first-aiders, as AED training is not currently included in FAW courses.

20.         The risk of a person suffering a cardiac arrest on an employer's premises is, essentially, in direct proportion to the number of people passing through the premises. In industries with a major public interface (e.g. retail, services, entertainment) there will be more members of the public on the premises than employees so a person suffering a cardiac arrest is more likely to be a member of the public. If an employer in such an industry includes the public in his assessment of first aid needs there will usually be a much stronger case for providing an AED. However the employer is only legally required to include the public in the assessment of needs where there is risk to them from the work undertaking.

Extending the Provision of First aid to the Public

21.         The research recognised that the current voluntary system appears to be running effectively and is widely supported by employers, especially where there is a considerable public interface such as in shopping centres, stations or airports. Nevertheless, the demand for greater access to public first aid may well increase as expectations are raised, for example, by the programme of placing AEDs in public places is rolled out and such equipment becomes more commonplace.  

22.         However, FAW is a part of health and safety legislation that does not apply to other than employees and cannot be legally extended without further primary legislation. That would create additional pressures on a crowded legislative timetable. Moreover, any argument for extending the legal requirement to make provision for the public would need to identify the balance of costs and benefits over current voluntary practices.  In addition, there would be a need to address a number of issues related to the practicality of extending provision; for example:

·         First aid for the public is a public health issue rather than being within the scope of first aid at work. Any legislative action would be complex and involve a number of government departments.

·         There would need to be agreement on the definition of “the public” and “public places”.

·         It would be difficult to identify who would have responsibilities for providing public first aid.

·         The issue of enforcement would need to be resolved. 

·         There would inevitably be an increase in costs for employers and the need to make these proportional to the size of their company.

·         There would be the potential for increased litigation.

Question

Q7. Should first aid for the public be provided on a voluntary basis as at present or should this be compulsory through new legislation requiring employers to make provision?  

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