Duncan Cotterill Partner Sarah Townsend discusses the real risks facing schools today, with a focus on how the Health and Safety at Work Act 2015 applies. There are a number of key steps that school principals and Boards of Trustees can take to manage the multitude of health and safety risks related to running a school, she writes.
Also on the topic of Employment Law, Duncan Cotterill Partner Jessie Lapthorne will give a presentation on Hot Topics and Trends in Employment, covering: Spotlight on sexual harassment and the impact of #MeToo, Current trends emerging through case law, and Key legislative changes on the horizon and beyond, at a Legalwise Seminars Conference on Tuesday, 12 March.
The Health and Safety at Work Act 2015 (HSW Act) places a duty on all workplaces, including schools, to manage health and safety.
That can feel daunting when you consider the multitude of health and safety risks associated with running a school. These include not just bullying and behavioural risks, but risks associated with school grounds and buildings and education outside the classroom.
There are a number of steps that school principals and Boards of Trustees can take to manage these issues. Having robust systems in place to identify and control risks and consulting with other organisation on health and safety will often be key.
What Health and Safety Duties do schools have?
Schools are required to ensure, so far as reasonably practicable, a work environment that is without risks to safety.It requires people in charge of schools to identify and assess risks and hazards created by their activities and to remove or minimise them where possible.
The school’s responsibility is to all workers who either work for the school, or whose activities while carrying out work are influenced or directed by the school. This will include all teachers, administrators, caretakers, trainees on work experience, volunteers, and external contractors. Duties are also owed to other people who will be at the school, including students, their parents, and other visitors.
Often, more than one organisation, or “PCBU”, will be involved in work at the school, or in a school activity. Each organisation will have its own health and safety duties to ensure the safety of those around them and these duties will often overlap. That means that schools will need to be active in consulting with other organisations around the management of health and safety risks. That includes consulting with the organisations like the Ministry of Education, EOTC providers and contractors.
In addition to the school itself, individual “officers” within the school have personal health and safety duties. These are people who occupy a position that allows them to exercise significant influence over the management of the school. This will be Board of Trustees members and the Principal and in rare cases, other senior staff members. However, a member of the Board of Trustees for state or state-integrated schools (being appointed or elected under the Education Act 1989) cannot be prosecuted under the HSW Act for failing to comply with a duty as an Officer of the school. Principals will often shoulder much of the day to day responsibility for managing health and safety in schools.
What steps should be taken to manage health and safety in schools?
An important starting point for managing health and safety is to ensure that there are systems and processes in place to address the following matters:
1. Identification and management of risks, especially critical risks (where there is a high risk of serious injury or death) and high probability risks.
2. Incident management and reporting
3. Emergency management
4. Training, supervision, induction of workers and others
5. Worker engagement and participation in health and safety matters
6. Contractor management/working with other organisations (including managing overlapping health and safety duties).
7. Continuous improvement in health and safety performance
The first step for every school should be to conduct a thorough consideration the risks within its operations. The law requires that each risk must, so far as is reasonably practicable, be eliminated. If it is not reasonably practicable to eliminate those risks, they must be minimised.
When determining whether something is reasonably practicable, the school needs consider what can be done, and whether it is reasonable in the circumstances to do all that is possible. Cost will rarely be a reason for not taking a particular step unless the cost is “grossly disproportionate” to the risk. The guiding principle that should be followed is that workers, and others, should be given the highest level of protection that is reasonably practicable.
There are various guides published by the Ministry of Education which, while not mandatory for schools, provide useful guidance to schools on health and safety issues. These include the Health and Safety Practical Guide for Board of Trustees and School Leaders. (https://www.education.govt.nz/ministry-of-education/specific-initiatives/health-and-safety/)
While documented systems are important it is the day to day behaviours, particularly from leaders within the school, which will make a difference to health and safety.
Do obligations extend outside the school gates?
Yes – The HSW Act specifies that a workplace is a place where work is being carried out and includes any place where a worker goes while at work. This means that the workplace will be the classrooms, and also the grounds of the school, including playgrounds. Any places that are visited outside of the school, but for school purposes, such as official excursions and camps will also be considered to be workplaces. The definition will also encompass after hours events within the school grounds, such as plays or sporting fixtures. If the school has boarders, the boarding houses will also be covered.
Any assessment of risks and hazards needs to consider all of these places.
Some common risks facing school
School playgrounds – Playground equipment should be built following the Ministry of Education’s guidelines, in accordance with the New Zealand Standard for playground equipment, and with a building consent, if required. It should then be periodically maintained to keep it in good condition.
Swimming Pools – The Ministry of Education has extensive guidelines for day-to-day pool management, signage requirements, water testing, and rules for pool use. Following these guidelines will ensure that schools are doing what is reasonably practicable to minimise the risk from the school pool.
Classrooms & Equipment – Wood work rooms and chemistry laboratories can be particularly risky. Machinery should be guarded, students supervised, and up to date safety protocols should be in place to control risks.
Maintenance – Schools should consider issues such as storage of chemicals and maintenance work being carried out on school grounds. Qualified contractors should be engaged to carry out specialist tasks like trimming trees on school grounds or carrying out maintenance on buildings.
School Buildings – The management of issues related to school buildings can be challenging as any significant upgrades normally fall within the Ministry of Education’s area of responsibility. Schools should do what is reasonably practical to manage risks that exist with buildings and ensure that they communicate and consult with the Ministry on safety issues associated with school buildings.
Education Outside the Classroom – While the school may not be able to influence and control all of the risks associated with EOTC activities, it needs to ensure it consults with any external providers to ensure that they are suitably qualified and have robust systems in place for the management of health and safety.
Illnesses and bullying – While the focus is often on physical incidents, it is important to consider other aspects, including having policies in place to deal with illnesses and bullying.
Below is a (non-exhaustive) list of some practical considerations for Boards of Trustees and Principals:
- Ensure that the Board is receiving regular health and safety reporting. Consider whether he report telling the Board what it needs to know so that it can make informed decisions about health and safety.
- Ensure the school has an up to date and fit for purpose health and safety management system.
- Ensure training and inductions happen, at the school and other workplaces where the school sends workers, students and parents (e.g. EOTC).
- Review the risks at the school and how they are being managed and controlled.
- Consult with your staff on H&S participation within the school and ask them about H&S risks
- Engage competent, qualified contractors to carry out maintenance work and check their H&S credentials
- Consult, cooperate and coordinate with other organisations where you are working in a common location (e.g. school grounds) or on a common project (e.g. EOTC).
If you have any questions about the HSW Act and how it applies to you or your school, please contact Sarah Townsend.
Sarah Townsend is a Partner in Duncan Cotterill’s national Health and Safety and Employment team. She regularly advises schools and other education providers on both employment and health and safety matters, helping to work through often complex and stressful situations. She has extensive experience helping clients understand and comply with their health and safety obligations, as well as representing and advocating for clients following a health and safety incident. Sarah is the author of LexisNexis Practical Guidance – “Health and Safety Governance”. Contact Sarah at [email protected]ancotterill.com or connect via LinkedIn