trendz - our client newsletter

february 2008

lunchtime hazards

It was a beautiful day – sun shining, birds singing, all well with the world – so we opted for lunch outside, late last year. There was a slight breeze but it didn’t concern us much. A sun umbrella toppled in the distance but it was soon righted.

And then disaster struck. The sun umbrella much closer to us took its turn in the wind, crashing down on the head of one of our number, and scattering our lunch to the (by now) four winds. We took the dazed and confused one off to the local accident and emergency clinic but not before noting the health and safety implications of what had just occurred.

And there the matter might have rested, (there was no permanent damage to this particular legal mind) had we not heard the sound of shattering plates and glasses outside the office window today. The sun umbrellas at the restaurant below were installed yesterday. Two of them have already blown over – the first damaging the concrete pad into which the umbrella was set and the second sweeping plates, glasses and cutlery into the laps of a couple of startled diners.

It prompted us to dispense some free legal advice to the restaurateur about the health and safety implications of continuing to use the umbrellas. The Health and Safety in Employment Act 1992 (HSEA) requires employers to identify hazards in the workplace and take all reasonable steps to minimise their effect. The restaurant is a workplace and the same rules that apply to the protection of employees apply also to "other persons" in the workplace. In other words, any customers in a workplace are also entitled to the protection of these rules.

The moment the first sun umbrella fell victim to the wind the employer was on notice about a potential hazard. If, as occurred in both eating establishments described above, the umbrellas were merely restored to their previous position, the employers were potentially in breach of the health and safety rules because they failed to take the steps needed to minimise the risk of this problem recurring. This in turn meant that they failed to avert the risk of damage to life and limb of anyone unlucky enough to be struck following the next gust of wind.

Here is what the restaurateurs should have done:

• considered the suitability of the umbrellas for the particular environment - how susceptible were the umbrellas to toppling?
• ensured there was a health and safety conscious environment amongst all staff – so that there was some thought about whether the umbrellas should be restored;
• ensured that there were staff members on duty who had the power to assess the risk of restoring them and make the decision to take them down until they could be made safer.

These are the kinds of steps that are required to be undertaken in the assessment of risks of harm in the workplace. The process does not need to be onerous but it does depend on there being a safety aware work environment. It does not need to be particularly formal either. If you think of the last time you had a toddler come to visit and the steps you took to child proof the place whilst they were there you are recalling a process that is very similar to health and safety consciousness in the workplace.

A failure to adopt this kind of approach raises the risk that if someone is hurt by a flying sun umbrella (or similar hazard) OSH will investigate and, if necessary, prosecute.

For more information about health and safety in the workplace, contact this office.

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Disclaimer: This article is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. Please refer to our Legal Notices.

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