The term “Competent Person” is bandied about quite a lot, especially with reference to Health and Safety.
Of course, large organisations understand that they have very specific legal health and safety responsibilities, or at least we hope they do. But surely not every SME, especially if they just employ one person, has to have a competent person to look after health and safety?
Well, it comes as a surprise to many employers to find out that, actually they do. Although how competent, how skilled, how technically able will depend on how high-risk the environment in which they operate is.
How is a competent person defined?
Not very well, it turns out. In fact, the relevant law, Regulation 7 of the Management of Health and Safety at Work Regulations 1999, is not exactly clear. But it does say that subject to one or two minor exceptions, every employer has to appoint one or more competent persons to ensure they comply with health and safety and fire regulations.
And, they are regarded as competent when they have sufficient training, experience or knowledge, and other qualities. Perhaps the easier way to define competence is using the mnemonic of KATE, i.e. those with the necessary Knowledge, Ability, Training and Experience in order to correctly identify hazards and dangers that exist, or could reasonably be foreseen in the workplace, and implement sensible, proportionate solutions.
Additionally, they need the necessary authority to make sure that the workforce takes the right measures to eliminate those dangers. A competent person must meet these main criteria, so a person who is new to the job is not likely to meet this standard. They must be granted specific authority by the employer to take prompt corrective measures arising from a sensible risk assessment.
They also need to be good influencers. A competent person also needs to be respected for their judgement at all levels within the organisation, so that when they state that corrective action needs to happen, Management listens and implements, and the workforce, by and large, follows the necessary safe working practices. This is a quality that takes time to build.
The following actually comes from the Health and Safety Executive website, and explains it rather better than the regulations.
What a competent person does
They should have the skills, knowledge and experience to be able to recognise hazards in your business, and help you put sensible controls in place to protect workers and others from harm.
Qualifications and training
It’s not usually essential for them to have formal qualifications, and they’re not required by law to have formal training, although it can help.
Who you can appoint
You could appoint (one or a combination of):
- one or more of your workers
- someone from outside your business
Usually, managing health and safety isn’t complicated and you can do it yourself with the help of your workers. You know your workplace best and the risks associated with it.
If there’s a competent person within your workforce, use them rather than a competent person from outside your business.
Using a consultant or adviser
If your business or organisation doesn’t have the competence to manage health and safety in-house, for example, if it’s large, complex or high risk, you can get help from a consultant or adviser. But remember, as the employer, managing health and safety will still be your legal duty.
It is sadly too easy just to dump the title on some reluctant but amenable individual, and forget about it, that is not recommended, but in reality, is often what happens. Also, what typically happens is that someone is persuaded to take it on, but it’s deemed an add-on to their actual day job, so they are not freed up the extra time and space to take on these additional responsibilities. So as a result, they do both jobs adequately only, or do not do the health and safety aspects as much as they would like so they give it up. The employer is back to square one, having not learnt the lessons, looking for the next person that they can badger or bully into doing the job.
Failure to appoint a competent person(s) can lead to a prosecution for breaching the Management of Health and Safety at Work Regulations, which can in turn, lead to intervention by your regulatory authority, fines, or, in cases where the consequences of a breach were extreme, even imprisonment. We shall return to the issue of qualifications, but a recent case following on from the Grenfell fire disaster, shows what can happen if qualifications are not checked.
A former firefighter who carried out fire risk assessments (FRAs) on Grenfell Tower between 2010 and 2017, has admitted that he misrepresented his qualifications and experience.
At the public inquiry into the June 2017 disaster, Carl Stokes admitted he had cut and pasted large chunks of text from one FRA to the next.
Kensington & Chelsea Tenant Management Organisation (KCTMO) was also in the spotlight over lax controls when hiring Stokes in the first place, and its apparent failure to act on a highly critical report on fire risk management procedures by safety consultancy Salvus – CS Stokes’ predecessor – in September 2009.
We are not saying that sole responsibility for that terrible fire should rest with the ex-firefighter, or whoever failed to check his real abilities/qualifications, but neither of those parties comes out with any professional credibility. Not that appointing a Consultant and checking their bona fides and ‘competence’ is the entire solution. In any event, the Health & Safety at Work Act makes it clear that whilst a consultant can be used for their expertise, which by the way should be relevant to that sector, Owners, Directors, Trustees, Partners and Senior Management cannot delegate the ultimate responsibility for health and safety for their organisation to others, only the day to day organisation. This is why the HSE and IOD Code of Practice for Directors strongly recommends that one of the Directors take on regular oversight and regularly reports to the Board on health and safety matters. In small organisations, this person may also be the nominated competent person, but in medium and larger sized organisations, this doubling up no longer becomes practical.
Most employers, especially small ones, can easily identify a diligent, caring and knowledgeable employee, who, with a bit of training and support, will fulfil the requirements of a competent person.
Trying to establish what makes a good competent person is quite complex, but can be narrowed down to two criteria:
- Do they have appropriate qualifications, have they received the necessary training, and do they keep up to date with refresher training to maintain their Continuous Professional Development (CPD)? This need not be as scary as it sounds.
- Do they possess the experience or knowledge, and other qualities that will allow them to fulfil their duties properly? The level of competence will depend on the complexities and level of risk within the organisation. Being in charge of the stationery cupboard will be very different from the stores in a large chemical factory.
As we suggested earlier, there is nothing to stop employers having more than one competent person, so that might be two employees with different skills/ responsibilities, or an internal person working with an external and qualified Health & Safety Consultant.
If you are appointing externally, you should not appoint any health and safety professional to help you to comply with your statutory duties, as they may not have the right level of expertise in your specific sector. We provide health and safety consultancy for some of our clients, but we are very careful to ensure that this is within our skills set, staying well clear of for example construction, heavy engineering, or highly specialised sectors. As for qualifications and training, a week’s course might be adequate for a Competent Person in an office environment, but will be nothing like as credible as a fully IOSH qualified professional who has passed exams and maintains their CPD. Good consultants will stay well clear of trying to advise in unfamiliar environments. While training is part of what makes a competent person, it is not just the result of completing a course.
And finally, a topical note. 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. A recent case held that a newly appointed health and safety person was automatically unfairly dismissed, despite having short service, because he ruffled feathers in trying to improve health and safety in his workplace. Losing a case on such an issue is not only costly in terms of compensation, but is a major PR blunder and not likely to improve relations with the HSE, or the workforce.
So, in summary, appointing one or more competent persons within your organisation is a legal requirement. When selecting in-house, use KATE along with identifying who cares about getting things right and is already a good influencer. You want someone that is not afraid to raise issues, justifies their reasons and preferably comes with the solution as well as the problem. There is quite a lot of documentation to be completed, so make sure they are comfortable with that, or give them someone that can help with that administrative support. Give them the time and Senior Management support to make a difference, and to keep you out of trouble.
Finally, if you are not sure your competent person is indeed that competent, talk to us, as we may be able to help you identify someone in-house, or help coach the current person to do a better job. Or, you can use our expertise, if appropriate. And, if we cannot do it ourselves, we are more than likely to know who we can recommend instead.
Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.