This article looks at the duties imposed on persons by The Electricity at Work Regulations 1989 (EWR)
NICEIC Technical Team | .
Objective: The Electricity at Work Regulations 1989 (EWR) impose duties on employers, self-employed persons and employees to take precautions against the risk of death or personal injury from electricity in the workplace. In some cases, duties imposed on persons working on or near electrical systems by the EWR are described as ‘absolute’ while, in other cases, they are applicable only ‘so far as is reasonably practicable’. This article looks at these duties and the differences between them.
Who is a duty holder?
Regulation 3 of the EWR requires duty holders to comply with the provisions contained within those regulations in so far as they relate to matters which are within their control. Anyone who is involved with electricity in a workplace, whether working on it directly such as an electrician, or using it such as, for example, a machine operator is classed as a duty holder.
The Regulations in the EWR impose one of the two following levels of duty upon persons working on, or in close proximity to, electrical systems (as defined in Regulation 2 of the EWR):
If a requirement in a regulation is ‘absolute’, that requirement must be met regardless of the cost, time or effort incurred in so doing.
For some of the regulations with absolute requirements, Regulation 29 offers a defence where criminal (but not civil) proceedings have been brought against a person or persons considered to have failed in their duty. The defence places the onus on the accused person(s) to demonstrate that ‘they took all reasonable steps and applied due diligence to avoid’ committing an offence. In effect, the defendant is deemed guilty until proven innocent.
Unless stated otherwise, the requirements of a particular regulation in the EWR are absolute.
Reasonable practicability
Where the term ‘so far as is reasonably practicable’ is used in a regulation, this allows a balance to be struck between, on the one hand, the level of risk reduction considered acceptable and on the other, the cost, time and effort of reducing the risk to such an acceptable level. Given that risks associated with electricity include death and severe injury, it follows that the bar for proving reasonable practicability is high.
To apply reasonable practicability, it will be necessary for a risk assessment to be performed in accordance with the requirements of the Management of Health and Safety at Work Regulations 1999.
It should be remembered that this risk assessment could be the subject of scrutiny in the event of an accident or incident occurring. As such, it is important to keep a record of the risk assessment process, proportionate to the nature and severity of the risk being considered.
Where a person is charged with an offence relating to a regulation where a duty of reasonable practicability applies, the prosecution would need to demonstrate that the defendant had ‘beyond reasonable doubt’ failed in their duty, whilst the defendant need only demonstrate that their duty had been met ‘on the balance of probabilities’. It should be noted however that a lack of finances to properly implement those safety measures deemed necessary to reduce the risk to a reasonable level would never be an acceptable defence.
Where a charge is brought, it will be for a court of law to decide whether or not the defendant has met the duties imposed upon them.
Although little guidance on what is meant by reducing a risk as low as is reasonably practicable is available from the courts, The Health and Safety Executive (HSE) cite the following insightful examples of the rulings from such a case (Edwards v. The National Coal Board. 1949) in respect of whether duty-holders have reduced risk to a level which is as low as reasonably practicable:
“... in every case, it is the risk that has to be weighed against the measures necessary to eliminate the risk. The greater the risk, no doubt, the less will be the weight to be given to the factor of cost.”
and
‘“Reasonably practicable’ is a narrower term than ‘physically possible’ and seems to me to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.”
Further guidance on the duties imposed on persons by the EWR can be found in paragraphs 57 to 60 of The Electricity at Work Regulations 1989 – Guidance on Regulations (HSR 25), which is downloadable free of charge from the HSE website – visit: hse.gov.uk/pubns/books/hsr25.htm
Who is a duty holder?
Regulation 3 of the EWR requires duty holders to comply with the provisions contained within those regulations in so far as they relate to matters which are within their control. Anyone who is involved with electricity in a workplace, whether working on it directly such as an electrician, or using it such as, for example, a machine operator is classed as a duty holder.
The Regulations in the EWR impose one of the two following levels of duty upon persons working on, or in close proximity to, electrical systems (as defined in Regulation 2 of the EWR):
- Absolute
- so far as is reasonably practicable.
If a requirement in a regulation is ‘absolute’, that requirement must be met regardless of the cost, time or effort incurred in so doing.
For some of the regulations with absolute requirements, Regulation 29 offers a defence where criminal (but not civil) proceedings have been brought against a person or persons considered to have failed in their duty. The defence places the onus on the accused person(s) to demonstrate that ‘they took all reasonable steps and applied due diligence to avoid’ committing an offence. In effect, the defendant is deemed guilty until proven innocent.
Unless stated otherwise, the requirements of a particular regulation in the EWR are absolute.
Reasonable practicability
Where the term ‘so far as is reasonably practicable’ is used in a regulation, this allows a balance to be struck between, on the one hand, the level of risk reduction considered acceptable and on the other, the cost, time and effort of reducing the risk to such an acceptable level. Given that risks associated with electricity include death and severe injury, it follows that the bar for proving reasonable practicability is high.
To apply reasonable practicability, it will be necessary for a risk assessment to be performed in accordance with the requirements of the Management of Health and Safety at Work Regulations 1999.
It should be remembered that this risk assessment could be the subject of scrutiny in the event of an accident or incident occurring. As such, it is important to keep a record of the risk assessment process, proportionate to the nature and severity of the risk being considered.
Where a person is charged with an offence relating to a regulation where a duty of reasonable practicability applies, the prosecution would need to demonstrate that the defendant had ‘beyond reasonable doubt’ failed in their duty, whilst the defendant need only demonstrate that their duty had been met ‘on the balance of probabilities’. It should be noted however that a lack of finances to properly implement those safety measures deemed necessary to reduce the risk to a reasonable level would never be an acceptable defence.
Where a charge is brought, it will be for a court of law to decide whether or not the defendant has met the duties imposed upon them.
Although little guidance on what is meant by reducing a risk as low as is reasonably practicable is available from the courts, The Health and Safety Executive (HSE) cite the following insightful examples of the rulings from such a case (Edwards v. The National Coal Board. 1949) in respect of whether duty-holders have reduced risk to a level which is as low as reasonably practicable:
“... in every case, it is the risk that has to be weighed against the measures necessary to eliminate the risk. The greater the risk, no doubt, the less will be the weight to be given to the factor of cost.”
and
‘“Reasonably practicable’ is a narrower term than ‘physically possible’ and seems to me to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.”
Further guidance on the duties imposed on persons by the EWR can be found in paragraphs 57 to 60 of The Electricity at Work Regulations 1989 – Guidance on Regulations (HSR 25), which is downloadable free of charge from the HSE website – visit: hse.gov.uk/pubns/books/hsr25.htm
