Y2K and Health & Safety 2

Introduction

The Health and Safety Executive (HSE) - responsible for promoting safety in the industrial setting and enforcing health and safety legislation - is concerned that the implications of the Y2K issue for employee and public safety have not received sufficient attention. The HSE’s Control Systems Unit is co-ordinating policy and promoting guidance on assessing the effects of the problem and taking steps to deal with it.

Suppliers and users of programmable electronic systems (PES) have statutory duties to investigate and minimise risks to health and safety arising from possible system failures.

Responsibilities of Suppliers

The Health and Safety at Work Act (HSWA) contains a ‘general duty’ on all manufacturers, importers and suppliers to ensure, so far as is reasonably practicable, that articles supplied are ‘safe and without risks to health’.

The Supply of Machinery (Safety) Regulations amplify these duties and include, eg specific obligations about protection in the event of control circuit logic faults.

The HSWA general duty also provides that all suppliers are obliged to warn their immediate customers of necessary revisions to product information arising from new knowledge of anything giving rise to a ‘serious risk to health and safety’. The HSE have flagged up this duty to warn in its Y2K campaign.

The HSWA does not deal with any aspects of modification, repair or retrofit needed or where the cost of these operations lies. These issues depend on the contractual terms of supply contracts.

Software copied or written specifically for customers and not supplied through a tangible product - eg a disk - may not be treated as an ‘article’ for these purposes; if not it will probably fall under separate provisions of HSWA - see below.

In the event of a Y2K failure causing injury or damage to property manufacturers, importers and other suppliers in the chain may face claims for damages. Strict liability for defects in products under the Consumer Protection Act 1987 - ie liability without negligence having to be proved - may mean that manufacturers and importers into the EU may be particularly vulnerable to claims, but liability under this Act does not extend to damage or unavailability of the equipment itself, or damage sustained to commercial assets. Claims may, nevertheless, be brought for negligence, including negligent failure to warn customers already supplied about serious risks to health and safety - even where the incidence of the risk is low.

For consultants, and other suppliers of services (eg FM), different considerations will apply. The HSWA imposes a duty on all employers ‘to ensure so far as is reasonably practicable that persons not in their employment who may be affected are not exposed to risks to their health or safety’. Recent authority has established that ‘conducting an undertaking’ for these purposes needs to be widely construed and can mean there is a duty to protect the employees (and others in danger) in separate organisations.

The notion of ‘risk’ has also been given a very wide meaning - ‘a possibility of danger’ sufficient for the duty to arise - there need not be an actual danger.

The HSE will maintain that this duty applies to the work activities of consultants retained to provide technical expertise solving Y2K problems.

Responsibilities of PES users

The HSWA places duties on all employers ‘to ensure so far as is reasonably practicable the health and safety of their employees’ - in particular through the provision of safe plant and systems of work. The duty to protect persons other than employees described above is also applicable to users.

Various specific management obligations contained in health and safety regulations are also significant for these purposes for they require the employment or engagement of competent persons to assist with health and safety compliance, the performance of risk assessments and the implementation of planned management systems to deal with the potential dangers:-

• Management of Health and Safety at Work Regulations 1992 (‘MHSWR’) - these require suitable and sufficient risk assessments of risks to employees and others - usually in writing, also, written arrangements for dealing with dangers that have been identified. (These Regulations also contain provisions dealing with workplaces used by employees of more than one organisation and may impact on facilities management arrangements.)

• Provision and Use of Work Equipment Regulations 1992 (‘PUWER’) - these contain obligations on employers to ensure that all control systems and equipment are safe, and in particular that any fault in the control system does not result in increased risks to safety: equipment should fail safe.

Users could face civil liability for any injuries caused to their employees, visitors or members of the public by a negligent failure to deal with Y2K problems. Liability to employees may be ‘strict’ as PES will usually be subject to special liability rules under the Employers’ Liability (Defective Equipment) Act 1969.

Property Owners

Under additional HSWA provisions, any organisation which has ‘to any extent’ control of non-domestic premises has an obligation to take all measures reasonable for an organisation in that position to ensure that the premises - and any plant in the premises - are safe. An obligation under any contract or tenancy for maintenance or repair or the safety of plant will be deemed control for these purposes. PUWER can also apply where there is an element of control in relation to premises and/or equipment.

‘Control’ is also significant in considering potential civil liability under the Occupier’s Liability Act 1957 - depending on covenants liability could fall to a landlord and/or tenant.

HSWA Penalties

Although most HSWA offences (and those under related Regulations) are dealt with in the Magistrates Court where the maximum penalty is a £20,000 fine (or £5,000 for contravention of Regulations) serious cases are dealt with in the Crown Court where there is no limit on the fines and (in the case of individual defendants) up to 2 years imprisonment may be imposed. Fines in the order of £500,000-£1.5m have been imposed in serious cases. Directors, officers and senior managers can be held personally liable for the offences of companies.

Taking action

Given the lack of specificity in the health and safety legal requirements, and the HSWA provision which says it is organisations which have the onus of proving they have done what is ‘reasonably practicable’ for the purposes of the statutory duties, there is much to be said for adopting (and adapting where necessary) HSE-approved guidance and methodologies. The HSE Safety and the Year 2000 report recommends a three stage approach:-

• Audit and analysis.
• Strategy and planning.
• Implementation and test.

At each level significant investigations are required, with action based on an ‘overall vulnerability assessment’ taking into account factors of system ‘criticality’, ‘functionality’ and ‘construction’.

HSE will also recommend organisations treat the Y2K issue as a major technical project with defined project roles and responsibilities.

A simplified description of the approach recommended by the HSE is published in the form of Guidance for a Safe Year 2000 and Year 2000 Risk Assessment - free booklets available on the HSE homepage of the internet (http://www.open.gov.uk/hse/hsehome.htm).

Further reading

• Safety and the Year 2000 (HSE Books 1998) (ISBN 0 7176 1491 3)
• Guidance for a Safe Year 2000 (HSE Books - available June 1998)
• Year 2000 Risk Assessment (HSE Books 1998)(INDG287)
• Management of Health and Safety at Work Approved Code of Practice (HMSO, 1992 but available from HSE Books) (ISBN 0 11 886330 4)
• Safer by Design, Howard Abbott and Mark Tyler (Gower 1997) (ISBN 0 566 07707 8
• Product Safety, Christopher Hodges, Mark Tyler and Howard Abbott (Sweet & Maxwell 1996) (ISBN 0 421 50370 X).

Mark Tyler
Health and Safety Practice