Recently we were asked if a person with specific health and safety responsibility, and identified by a firm as a Competent Person, needed a special section in their Terms and Conditions of Employment stating that they should ‘act without fear or favour’.
Generally a Competent Person is involved in overseeing, inspecting and auditing the working practices of others. They are set apart from their colleague workers with special health and safety responsibility.
Whilst there is no legal definition of Competent Person, relevant health & safety codes of practice make special mention of the title. Often a Competent Person role assures health and safety.
By way of example let’s consider the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) Approved Code of Practice and Guidance (2014). Regulation 8 states that the ‘competent person’ responsible for planning will have “the skills, knowledge and experience to make the relevant assessment of the requirements of the lifting equipment being used and the type of task being carried out”. Regulation 9 (which covers examination and inspection) states that the person “carrying out a thorough examination has such appropriate practical and theoretical knowledge and experience of the lifting equipment to be thoroughly examined as will enable them to detect defects or weaknesses and to assess their importance in relation to the safety and continued use of the lifting equipment”.
Once a person is identified as a Competent Person, this demands that they have specified skills, knowledge and experience (summed up as competencies). Required competencies may change as the tasks change. The Competent Person must also be given adequate status by the employer to allow them to act independently and impartially.
So how is all this done?
Firstly, to respond directly to the question asked, there is no requirement to change a person’s Statement of Terms and Conditions of Employment to somehow make them – or attempt to make them – uniquely responsible for something that at law they are not uniquely responsible for.
Under health and safety law the employer is responsible for ensuring a safe working environment for all employees (and indeed for others who may come in contact with the work).
The key thing is that management, as the employer’s agents, take their responsibility seriously, and effect such training and associated working procedures as needed to ensure a safe working environment.
Whilst UK HSE guidance does suggest that Competent Persons are appointed by management, this is just one approach. There are other approaches. Whatever approach is taken to ensuring that safe working environment, nothing absolves management from the requirement that all employees are appropriately trained and use appropriate working practices.
Appointing competent, well trained and qualified employees to mange health and safety is one way of structuring work to achieve a safe working environment. As with the example above, the Competent Person in one aspect of work may not be the Competent Person in another.
The phrase ‘without fear or favour’ has no meaning in employment law, nor has it specific meaning in health and safety legislation. It is a term used typically to describe the approach to work that a tribunal judge or a chair of a public enquiry would take. In essence, they should not care who they upset in order to get to the truth. And in that work those judges and chairs are often accountable only to Parliament.
For a Competent Person to work truly ‘without fear or favour’, they would somehow need to work outside management control. In the end, they are employees reporting to management and management therefore retains responsibility.
Having said that there’s no need to modify individual Terms and Conditions of Employment, something must advise all other employees that these Competent Persons are to be taken heed of.
This is done by building the structure of Competent Persons into working procedures. It would therefore be right to modify the firm’s Health and Safety Policy and Procedures to highlight the role of the Competent Person.
It may also be useful to modify the firm’s Disciplinary Procedure to indicate that failure to follow a Competent Person’s instruction or to use machinery or equipment that the Competent Person had designated unsafe may be considered as gross misconduct.
These changes are management’s way of saying “look, we consider Competent Persons to have a key role in the management of health and safety and we require you other employees to take heed of what they say”.
Employees report to the management of the firm. Management has responsibility for health and safety but health and safety legislation requires all employees to take reasonable care for their own health and safety and for that of others. There is also an obligation on each employee to co-operate with others, such as Competent Persons, to allow management to discharge its duties.
So, back to our Competent Person. ‘Without fear or favour’ describes an approach that they might take – they should not care who they upset in order to carry out their safety role. This does not need a change to the person’s Statement of Terms and Conditions of Employment. They are still an employee carrying out the employer’s bidding. If the Competent Person is subject to discrimination or is dismissed for enacting health and safety practices, they are adequately covered by the Employment Rights Act 1996 and the Equality Act 2010.
What’s important is that the Competent Person has the delegated authority and status to enable them to carry our their role as required by the management of the firm. The documents that need to describe the role are those which advise all staff of their responsibility and obligation under health and safety at work, and which define policies, practices and procedures.