Health & Safety for volunteers

[cfmonk]

As well as my job I'm a senior volunteer with St John Ambulance.

 

From all our training the HSE's line is that absolutely EVERYTHING which would apply in the workplace applies to volunteers as well. Sometimes even more so because they may be spending less time doing things so certain skills / practices (i.e. safe manual handling) may become a little fuzzy.

 

SJA got whacked around the head on this quite a while ago when a volunteer tragically lost his life during a training exercise on water, since then things have got much better!

 

EDIT: P.S. This also applies to the provision of PPE.

[Ynot]

OK - let's take this to a different question then...

 

Volunary run organisation runs a large scale production in volunteer run venue - no-one is getting paid for any aspect of the work involved. Extra hands are needed to bolster the regular crew so half a dozen relatively inexperienced others wave a hand and say "I'll help".

Now, those extras may have NO experience at all working on stage and as such may well not have some of the basics in place.

Those WITH the experience can (and indeed should) pass on all relevant info re working safely, BUT with the best will in the world, are unlikely to be able to impart years of accumulated knowledge in the short space of time available to them...

 

And also bear in mind that 'training' to an am-dram group will usually consist of on-the-job lessons learned by trial & error or peer feedback. Formal qualifications which might be demanded in a pro venue may not even be considered (and strictly speaking MAY not be necessary in some cases).

 

So how much (or how little) training/experience could/should a volunteer run group be expected to settle for when working their shows...?

[cfmonk]

Again I can only take this back to the SJA environment where we put all new members through an induction before they are allowed to become "operational".

 

In this induction we cover (amongst other things):

Staying safe on duty

Manual Handling

Working safely with young people

 

The Manual Handling course is delivered by volunteer trainers but all of us who do it hold C&G training qualifications and have been assessed that we are competent to deliver it as it is an HSE recognized course.

 

I'm not saying that all this would apply directly in a theatre but some sort of formal induction process should be in place. I know we had one at school whereby your first time working in the theatre covered the basics of using the ladders, carrying things what not to touch and who to ask if you were unsure about anything. I think if you DO NOT have this process or at least a handbook covering these things then you would be in an extremely tricky position if somebody hurt themselves.

[Scot628]

Good scenario Ynot...Even more interesting..and tricky!

 

There are two distinct strands to this, I think, criminal liability and everything else (civil liability etc). I can only really talk about the criminal liability imposed by H&S legislation. The SJA example is well made by a previous poster, and is similar to a prosecution of the Princes Trust which followed from a volunteers being crushed by a wall which collapsed when he was working on it. But in both cases SJA and Pt were employers, so the duty under S3 of HSWA was triggered and applied to show they didn't do all they reasonably could to safeguard non employees.

 

In this example, taking it exactly as written my opinion would be that there is no legal duty on the volunteers under HSWA criminal law to do anything. This is a bunch of people gathering to do something. In this case I think the "something" is immaterial, and could as easily be game of football, a trip up a mountain or a fell run in abysmal conditions...basically it's informed self consent. (My only caveat in this case would be the duty on anyone who "controlled" the venue, if indeed there was anyone or any group, in that role, which may attract a S4 duty but it is really limited to suitability and access and egress in any case)

 

The internal HSE guide to investigating the status of a "volunteer" is ..

 

Volunteers

 

31. Volunteers are not employees, so if consideration is being given to proceeding against a duty-holder under section 3 HSWA in respect of risks to volunteers, you need to prove that the duty holder is “an employer”, i.e. that in addition to the volunteers, there is at least one employee within the business/company.

 

32. If the duty-holder is not “an employer”, you may be able to proceed under section 3(2) HSWA if the duty-holder is a self-employed person (as defined by s.53 HSWA).

 

33. In addition, section 4 HSWA, which imposes general duties on a person who has control of non-domestic premises, may apply in respect of risks to volunteers (or any other person) who use the premises, or plant or substances provided there.

 

S53 of HSW re the self employed defines them as

 

"self-employed person" is "an individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others";

 

I once investigated a fatal to a volunteer who fell off the roof of a community church which was being built by a congregation of enthusiastic but more or less clueless members of the public who had decided they wanted a church and went off to build one. After much consideration, there was no proof employment, no self employment and ultimately no duty holder...end of investigation and put down to a tragic accident.

 

So, for arguments sake, this bunch of amateur dramatic people get together, bring in some enthusiastic friends, give them absolutely no training, point them at what needs to be done and let them get on with it. One of them falls from height doing something that was patently unsafe and dies...would there be a criminal liability? You'd need to eliminate employment, self employment, misuse of something provided for safety, control of the venue by a "duty-holder", possibly integrity of any equipment (and again would only need inspected etc if it was "work equipment") but in the end, using Ynots example..I don't think so. Because it wouldn't be considered a "work related death" there might be a possible manslaughter (personal not corporate) charge if it could be proved that someone actively contributed to the death ("go up there and do that, you'll be fine and no, you don't need a harness") and thus failed in their duty of care to the point of gross negligence..unlikely but possible.

 

if this sounds faintly implausible... say it was happening in someone's house, they were putting on a small scale event for friends and someone fell off the garden shed and died putting up a spot light....a tragic accident? Is there actually any difference to the larger am-dram scenario and would society expect anything to be done...?

 

BUT clearly this completely ignores the civil liability of duty of care, the moral imperative to help and assist, any probably a host of other non hse legislation that I know very little about (2003 licensing act, public liability insurance requirements, disclosure needs, etc etc) which could completely undermine my argument!

 

I think in practice you would sincerely hope that sense prevailed and a basic induction was done, some sort of supervision was in place and the activity followed most sensible peoples idea of a safe system of work?!

[Andrew C]

Where any organisation has at least one paid employee, it is considered to be an 'employer' for the purposes of the HSW Act and the regulations made under it.

 

In my case (I'm no longer 'managing' but I have in the past been in an identical place Tony is) we "employ" no one. We have a contract for cleaning, we sometimes contract musicians to provide their services, we contract an accountant. No one is employed.

 

Some years ago we asked the LA and their reply was "No, you do not come under the act."

 

That said, we do recognise our moral responsibility to endeavour to keep every one safe.

[cfmonk]

Hmm strange. This is not the end of the stick as we have been taught it as managers within St John. What we were told is that volunteers count exactly the same as employees of the organisation. Indeed on many occaisions volunteers are often employed as well either as part time staff paid first aiders etc. It has never been suggested that it would be the responsibility to keep non-employees safe that would mean the organisation would come under the act. Until recently each SJA County was a seperate entity with an affiliation to the national organisation. Some of those counties had no paid staff whatsoever would this mean that if they crushed several volunteers under an ambulance and killed them there would have been no investigation? The same for the hundreds of purely voluntary organisations out there?

 

That sounds ridiculous!

[Scot628]

Perhaps St Johns have found it easier not to try to make a purely legal distinction and instead treat all who "work" as being the same? Seems sensible and entirely pragmatic, but in law there is clearly a difference between employees and others. I do know the prosecution of SJA in 2003 (accident in 1998 which I think was the example referred to) was taken under HSWA S3, so that tallies with the legal distinction.

 

It's a very good point about the complexity of organisations. Affiliated entities are complex beings to deal with, there are a lot of charities in similar positions with extended contractual arrangements in place and organisations within organisations..all very time consuming and tricky to try and pick through to be honest! An accident involving an ambulance could go several ways...it could be a RTA, if it was on a site (eg a footie stadium, music event etc) there could be other organisations who would have possible duties, could be a mix of enforcing authorities. Potentially compicated and while I think there would definitely be an investigation.. as you say the findings would, ultimately, be a matter of looking at the case specifics. Nothings simple!

[Stan Hope-Streeter]

Nothings simple!

 

Surely the situation is this:

 

A set (maybe even a mountain) of regulations, standards, safe working practices and methods of operation has been put in force to protect people from injury or death when carrying out various tasks when at work.

 

Assuming these have all been devised on the basis of properly evaluated case studies, past experience, previous tragedies, etc (rather than Government By Tabloid Headline) then we must accept that they are right and proper and should be followed.

 

Now if a bunch of volunteers are carrying out the same tasks but not legally classed as "working", then they must be exposed to the same risks. Probably higher risks as some of them are more likely to be inexperienced, clueless or unable to take direction or follow orders. ("Hey, I'm only a volunteer, you can't tell me how to do it".)

 

That being so, if you have the ability to impose conditions on their use of your venue, you have a MORAL duty to insist on the same level of safety as if they were employed, even if not a legal one.

[Andrew C]

In my case, and I believe Tony's, it is THEIR building. Without payment, and in fact costing them to take part in the activity, there is no sanction if they won't follow direction. As you say, "Hey, I'm only a volunteer".

 

We can try, but we can't hit them with "It's the law".

[Jivemaster]

Scot628's posts state that there are situations where as his post 19 puts it there may be no liability under HSWA but there could be a civil liability for compensation in the event of a non HSWA incident. Therefore I can see some value in operating in conformance with known best practise to minimise and mitigate liability and it's cost. Many times the best practise is written in HSWA and its regulations.

[kerry davies]

Spot on Stan, another vote for treating volunteers as equal to professionals in H&S terms.

 

Chris, SJA is an organisation that does actually employ some people full time so the dividing line is blurry enough for a policy decision to treat everyone as "at work" seems to have been taken.

 

Andrew, if you read back to scot628's other posts they will confirm that your LA are wrong; because you pay cleaners, an accountant, musos etc it applies. You may be a volunteer but in paying someone, contracted out or not, you are effectively an employer (follow the money). HASAWA is directed primarily at employers and I've known volunteer committees disband instantly on discovering their liabilities. (lets not get into Ocupiers Liability)

 

Tony, though you would not necessarily be subject to the full legal weight of HASAWA for the latest example, I think that as the activity has more than a little in common with "work practices", a judges view in a civil case may well be coloured by their knowledge of the criminal (HASAWA) law. Whether at work or play, amateur or professional the common law duty of care applies at all times. Because you may create a dangerous situation during a tech rig your duty of care to those visiting your premises is reinforced and enhanced under occupiers liability.

 

We shouldn't place more restrictions, train more extensively and care more for the inexperienced and young than for experienced staff because it's the law. We should do it because it's the right thing! (Mookie 1989)

[Andrew C]

Andrew, if you read back to scot628's other posts they will confirm that your LA are wrong; because you pay cleaners, an accountant, musos etc it applies.

No, we DO NOT employ them. They work for someone else, and we contract that company for a service. Do you employ your dentist?

 

I don't doubt that complying (as far as possible) is best; but that wasn't the question.

[Scot628]

As people who work in the real world, you're probably well more familiar with contract law than I am so apologies if this is all old hat. And if this is veering madly off track, please reign it back!

 

In my rather skewed civil service world, it seems to be thus: At one end there is clearly a contract where there is no employment between you and your dentist. You don't tell your dentist what to do, and you have no control over his work patterns so that is clearly a contract for a service. At the other end are clearly those who are directly employed and do what they are told and turn up when they should and are just as clearly in a contract of service.

 

But, (and there always seems to be a but) in the middle it can get a bit grey. If you set conditions for your cleaners or musicians, or others who you use during the course of your work, specify how and when the work is to be done, provide materials or equipment etc, it can start to becomes more akin a master - servant relationship for the purposes of attributing employment status for H&S purposes.

 

There is also the control element (the Section 3 aspect). Even if they are self employed or a contractor they can still be seen as someone relevant to the rather arcane term of "the conduct of your undertaking". The key decided case was one where a specialist cleaning contractor went into a large chemical tank and it blew up while they were cleaning it. Both the contractor and the host site were prosecuted, the latter appealed arguing it wasn't their fault ~ they had no control over the way the work was done, who did it etc. On the face of it that seems a perfectly reasonable point of view to hold. However The House of Lords came down on the side of the prosecution, saying in essence if the job was being done cos your business depended on it (as part of the conduct of your undertaking), you had a duty (R vs Associated Octel). That is wandering the byways of H&S law and perhaps not relevant, but it would cover a volunteer helping out an employer (or a self employed person come to think of it). It doesn't add much to the volunteer helping out a volunteer discussion - sorry!

 

There are a lot of tests that need to be explored and all I can say is it's sometimes far from easy, and not always clear cut. The HSE web site has a section on this http://www.hse.gov.uk/enforce/enforcementg...ontract.htm#p19 This may just confirm that all is as you thought and there is no doubt in what you do.

 

In a way it's irrelevant in the context of this topic because clearly the consensus is to adopt the moral view and treat volunteers as well as you'd treat an employee, which is extremely good to hear!

B

[kerry davies]

Andrew, I do actually, to provide a contracted service, however:

"When a business becomes a client of a contractor and when a contractor employs a subcontractor, all parties have duties under health and safety law"

 

"Health and safety responsibilities are defined by the criminal law and cannot be passed on from one party to another by a contract." http://www.hse.gov.uk/pubns/indg368.pdf

I still think your LA are incorrect. Scot628 may have an opinion.

 

Whatever the employment status the Occupiers Liability Act 1957 also makes you responsible for others safety while on premises you own, control, occupy or supervise, even if they are trespassers. I presume one of you has a door key? http://www.opsi.gov.uk/revisedstatutes/act...a_19570031_en_1

As I wrote with Tony in mind, if you undertake hazardous activities (work at height?), allow "visitors" to participate or even tell them to stand clear, you have a duty of care and are in some regard responsible for any harm they may come to. Even burglars are protected by this Act!

[johnlinford]

It's my understanding that one of the key phrases used is "Place of Work" rather than employer/employee (though duties are set out there as well).

As managers or owners of a building where work takes place under your supervision, even in a volunteer capacity, it's my understanding that the weight of HSAW Act can be applied. Section 4 of HSAW Act would seem to apply, given even an amateur theatre is a non-domestic venue likely containing stage machinery/potential for WAH etc...

 

As mentioned, the elements regarding duties of employees are harder to enforce; however if you look at amateur sports people who fail to follow rules (many of which apply for safety reasons) are disqualified very quickly - why should theatre be any different when a lot of what we do is just as, if not moreso, dangerous.