Health and Safety confusion

In response to calls for the clarification of health and safety regulations that dog nursery businesses, here we provide an overview of employers’ responsibilities and what is changing.

Rarely a day goes by without health and safety being mentioned in the media, especially now there have been discussions in Parliament about returning to basics. We all know that with health and safety, red tape is necessary but time consuming, but the Government has now made a commitment to reducing it – a welcome move.

Independent reviews have established how to achieve this, in particular, one by Professor Löfstedt, who concluded that, while the regulations are “broadly fit for purpose”, there is not enough emphasis on the actions and responsibilities of staff.

Accidents will happen even in well-run nurseries, and the law has always accepted that all risks cannot be eliminated. The question is whether the risk to a person is material (as opposed to trivial or fanciful) and whether anything can be done to manage that risk and reduce the possibility of injury to its lowest practicable level. Professor Löfstedt believes that risk assessments are “fundamental” to the management of risk, and that reasonable practicability should remain at the heart of legislation, as it provides for the flexible management of risk.

Your duties

The general duties of a nursery regarding the safety of both employer and business are set out in Health & Safety at Work etc Act 1974; the key areas are Sections 2 and 3, outlining the duties you owe to employees and non-employees:

  • Section 2 imposes a duty on employers to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all employees
  • Section 3 requires employers to conduct their activities in such a way as to ensure, so far as is reasonably practicable, that persons not in their employment but who may be affected by their activities are not exposed to risks to their health or safety.

Other specific duties are outlined in the wide range of regulations applicable to nurseries.

What’s new?

Apart from independent reports, several draft pieces of health and safety legislation have come up before Parliament this year to amend and extend the powers conferred by the Health & Safety at Work etc Act 1974. There have also been several practical changes outlined here.


First, the reporting requirements have changed. Until recently, if a person was injured at work and absent for over three days, then the injury had to be reported to the Health and Safety Executive (HSE) in accordance with the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).

But, as of 6 April 2012 , only injuries resulting in workers being incapacitated for more than seven consecutive days (not including the day of the injury but including weekends and rest days) have to be reported online within 15 days of the injury. Although you still need to keep a record if the worker is incapacitated for more than three consecutive days, you no longer need to forward it to the HSE. But you must still report injuries to members of the public that required hospital treatment, following an accident at or in connection with work.

HSE can invoice you

From 1 October 2012, in accordance with the Health & Safety (Fee) Regulations 2012, the HSE will be able to recover the costs of its investigation, regardless of whether or not a prosecution results, under a scheme called Fee for Intervention (FFI). Inspectors will invoice a business for intervention arising from breaches of health and safety legislation at an hourly rate of £124. Compliant businesses will not pay a fee, but, where a material breach has been identified, the HSE will be able to recover any costs incurred in both the investigation and identification of the breach, as well as those incurred up to and including its rectification. A grievance procedure will be established for businesses wanting to appeal.

Independent Regulatory Challenge Panel

This panel of independent members with the competence and experience to assess advice given on regulatory matters was created by the HSE in January 2012. It will look into complaints by  businesses about health and safety advice given by HSE or local authority inspectors on the grounds that it is incorrect or goes beyond what is required.

Mythbuster Challenge Panel

The HSE recently established this independent panel to review complaints about advice given to the public and organisations by non-regulators, including health and safety consultants. On referral, the panel, which has already reviewed over 30 decisions, will consider the decision and decide if the advice given was sensible and proportionate. Its findings are published on the HSE website (

We can see from the decided cases that the panel is keen for decision-makers to state the real reasons behind policy decisions and not to hide behind the veil of ‘health and safety.’ Again, it aims to avoid commercial or leisure activities being curtailed by incorrect or overapplication of legislation. Being aware of such developments helps you to manage your nursery’s risks effectively and to be compliant.

Reducing your risk

We know that when an incident occurs, it is the facts and paperwork that the nursery produces that determine whether a claim can be defended. Our experience with nurseries that have recently been subjected to health and safety investigations following the injury of a child suggest measures you can take to avoid or minimise the chances of being the subject of a claim or enforcement action.

1. Document the findings of risk assessments

All nursery activities should be properly risk assessed and the findings recorded. A thorough review will help you to address potential risks in your nursery. Even if no additional control measures can be implemented, the fact that you have identified all potential risks will demonstrate that your business takes health and safety very seriously.

You must also review all risk assessments regularly, updating them where necessary, and document this. If amendments are necessary, then specify timescales and name those responsible for the
remedial work.

‘If the documents don’t exist, then it never happened.’ How true of health and safety investigations. If they are not documented or there are no minutes of health and safety meetings, then this will prejudice your defence.

2. Tell your insurance advisor NOW

Get advice in order to ensure prompt intervention, legal advice, investigation and support, should there be contact from a local authority following an injury of an employee, child or visitor within your responsibility. This is especially important if you are invited to attend an interview under caution, as comments made then can determine the course of an investigation – and whether any enforcement action will be taken.

3. Train your staff

Ensuring persons within the nursery are competent and trained to undertake investigations is a priority for your business. All staff should be trained and competent to fulfil their role. New (and less experienced) staff should be monitored during induction and tested to assess their knowledge and competence. All staff should undertake refresher training where appropriate and, in particular, if there are any changes in procedures/processes. Your staff must sign their training records, and you must retain them. Without them, you cannot demonstrate that an individual was trained, was competent and understood their responsibilities.

Finally, you cannot afford to be complacent when approaching the management of safety. Proactive safety management and training to ensure your people are competent to implement this are crucial to your continuing success.