EVADING HEALTH AND SAFETY REGULATION?
By
Chartered Health and Safety Practitioner 'Bravo Three Zero'
Previously, we looked at Civil Aviation Publication 660,
co-produced by BPA Ltd and the CAA to govern parachuting, in the context of
insurance. In this article, we shall examine CAP 660 in the context of Health
and Safety legislation.
Now, let's take another look at CAP 660.
CAP 660 –– Parachuting
2.4
Nothing in CAP 600 is intended to conflict with the ANO or other
legislation, which in case of doubt must be regarded as overriding.
3.12 The use of a Safety Management System (SMS) is mandatory for PTOs and Display Teams.
It
is therefore recommended that they refer to CAP 795: SMS Guidance for
Organisations and CAP 1059: SMS Guidance for small, non-complex
organisations in order to fulfil this requirement.
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CAP 660: Mooning the Law?
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CAP
660 clearly recognises that persons are at work. In other words, they
are consequently subject to the Health and Safety at Work Act 1974 ––
which is therefore the primary governing legislation –– and its
regulations, particularly the Management of Health and Safety at Work
Regulations 1999.
CAP
660's Safety Management System requirement is interesting as these are
high-level risk-based safety documents and, in many cases, replacements
for Safety Cases.
An
SMS pertains to the Policy, Organisation and Arrangements as required
under Section 2 of the Health and Safety at Work Act 1974 and would be
considered in law as overriding any operations manual, particularly one
written by an amateur sports organisation like the British Parachute
Association.
Various BPA Council Members and PTO operators have publicly stated
that BPA Ltd senior management, particularly the Chief Operations Officer Tony
Butler, have on numerous occasions stated that they do not want any HSE
involvement in skydiving.
How
would BPA Ltd sidestep Health and Safety regulations pertaining to parachuting? First of all, it is necessary to read
this text:
Appendix: Health and Safety (Enforcing Authority)
Regulations 1998: A-Z guide to allocation schedule
Parachuting
A demarcation of responsibility has been agreed between the
HSE and the CAA for the safety of non-employees, including the public, involved
or affected by parachuting.
Serious or fatal incidents/accidents are subject to
a British Parachute Association Board of Enquiry who report to the CAA. OC801/2
and Supplement provide further guidance. Incidents/complaints referred to the
LA should be discussed with the ELO in the first instance.
MOD
parachuting
This Supplement to OC 801/2
outlines the approach which should be adopted in relation to parachuting
undertaken by MOD. The arrangements are different from those detailed in OC
801/2.
1. As a general rule parachuting
undertaken by service personnel and parachuting by civilian members of MOD
sponsored parachuting clubs is not subject to the day-to-day control and
regulation of the British Parachuting Association (BPA). Similarly the CAA is
only involved in accident investigations if the internal MOD Board of Inquiry
report identifies matters which they regard as having implications outside the
MOD.
2. The HSW Act ss.2 and 3 will
apply to military parachuting and with the exception of parachute activities
outside the General Agreement (see FOD Code IN Fh for details), will be subject
to inspection.
3. Accidents to service personnel
are not reportable under RIDDOR but accidents to civilians taking part in MOD
sponsored parachuting together with accidents involving other persons who may
be affected (eg persons on the ground hit by a parachutist) will be reportable
subject to the normal criteria.
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| BPA COO Tony
Butler: respecting the law? |
In
the first instance the definition of ‘at work’ subsequent to case law has
changed significantly since 1998 and is currently most likely best defined in
accordance with UK Government criteria https://www.gov.uk/employment-status/worker
Secondly
the BPA are almost certainly misleading the HSE, arguing that parachuting is
not a work activity and any non-work related parachute accident is subject to
BPA investigations as established in the Allocation Schedule.
Thirdly, to
square the circle, the BPA insurance does not cover anyone at work or affected
by a work activity, as Don Canard
revealed in Protection Racket.
This
means that display teams, instructors and coaches, tandem instructors, riggers
and packers drop zone control staff and even tandem skydiving 'students' are
unlikely to be adequately covered by BPA Ltd's insurance cover.
Furthermore,
not reporting accidents and injuries under RIDDOR is a criminal offence
normally prosecuted under section 2 of the Health and Safety at Work Act 1974,
and carries heavy fines.
It seems clear that BPA Ltd directors, executives and
representatives have connived to evade reporting duties for decades, as the death of John Ward and and other
incidents indicate.
This raises yet another question: why is BPA Ltd not
reporting accidents and incidents in accordance with current legal
requirements? Could it be that the British Parachute Association –– which
claims to be empowered by the Civil Aviation Authority with regulatory
oversight of parachuting in the United Kingdom –– is not Health and Safety-compliant?
CAP660 - Parachuting
Incident and Accident
Reporting and Investigation
Reportable Accidents
4.12 An accident shall be reported to the Air Accidents
Investigation Branch (AAIB) and the local Police if, between the time when
anyone boards an aircraft with the intention of flight and such time as all
have left it if:
§ Anyone is killed or seriously
injured while in or on the aircraft or by direct contact with any part of the
aircraft, including any part which has become detached from it.
§ The aircraft incurs damage or
structural failure.
§ The aircraft is missing or
completely inaccessible.
§ The aircraft commander (or if
the commander is killed or incapacitated, the operator) must report immediately
by telephone to the AAIB on 01252 512299. This number is monitored 24 hours a
day.
Note: There are some exceptions – full details are
contained in:
https://www.gov.uk/government/organisations/airaccidents-investigation-branch.
§ In the event of an accident, an
MOR must also be submitted to the CAA within 72 hours.
Mandatory Occurrence Reporting
4.14 Any incident which endangers, or which if not
corrected would endanger any aircraft, its occupants or any other person, shall
be reported to the CAA. These provisions also apply to any defect or
malfunctioning of such an aircraft or of a ground facility which may be used in
connection with its operation.
4.15 The CAA requires a written report of any incident of a
serious nature or accident involving injury or damage to a third party.
4.16 Accidents occurring at locations under the control of
the MoD or involving members of the armed forces who are on duty or deemed to
be on duty will also be reported and investigated in accordance with MoD
regulations.
4.17 The requirements of CAP 660 do not absolve any person
from the requirements of other legislation or regulations relating to health
and safety or the reporting of accidents, which may in some circumstances be
overriding.
4.18 Incidents of a serious nature involving British
Skydiving Parachute Training Organisations and Display Teams must be reported
to British Skydiving, who will follow their established procedure.
4.19 Fatal accidents involving British Skydiving Parachute
Training Organisations and Display Teams are subject to a British Skydiving
Board of Inquiry, which is composed of experienced British Skydiving Examiners
and the Chief Operating Officer and/or the Safety and Technical Officer, none
of whom must have any direct interest in the organisation involved. The inquiry
report will be passed to the Police, the Coroner and the CAA.
This
all appears reasonably transparent and simple to the untrained eye but any
qualified safety professional can see that the above extract from the CAP 660
seems to be written with the intention of obscuring and thus evading legal
requirements and obligations. Paragraph 4.17 is particularly revealing and worth repeating:
4.17 The requirements of CAP 660 do not absolve any person
from the requirements of other legislation or regulations relating to health
and safety or the reporting of accidents, which may in some circumstances be
overriding.
This
wording, which seems deliberately opaque, refers directly to SI 1471 The
Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, more usually known by its acronym RIDDOR.
These regulations require reporting to the Health and Safety
Executive (HSE)/Local Authorities (LA) via the established mechanism of
specified events or occurrences in relation to persons at work or as a result
of a work activity.
RIDDOR
is overriding and any exemption not to report to the HSE/LA is subject to
delegation of responsibility from the HSE to another Authority for example to
the Air Accident Investigation Branch via SI 321 the Civil Aviation
(Investigation of Air Accident and Incidents) Regulation 2018.
Air Navigation Order 2016
Part 2 Application of the Order
Exceptions from
application of provisions of the Order for certain classes of aircraft
23.—
(1) This article applies to
(a) any small balloon;
(b) any kite weighing not more than 2kg
(c) any small unmanned aircraft; and
(d) any parachute including a
parascending parachute.
(2) Subject
to paragraph (3), nothing in this Order applies to or in relation to an
aircraft to which this article applies.
(3) Articles
2, 91, 92, 94, 95, 239, 241 and 257 (except 257(2)(a)) apply to or in relation
to an aircraft to which this article applies, and article 265 applies in
relation to those articles.
CHAPTER 3 Specialised Activities
Dropping of persons and grant of parachuting permissions
90.—(1) Subject to paragraphs (9), (10) and (11), a person must not
drop, be dropped or be permitted to drop to the surface or jump from an
aircraft flying over the United Kingdom except under and in accordance with the
terms of either a police air operator’s certificate or a parachuting permission
granted by the CAA under this article.
(2) A person must not drop, be dropped or be
permitted to drop from an aircraft in flight so as to endanger persons or
property.
(3) The CAA must grant a parachuting permission
if it is satisfied that the applicant is a fit person to hold the permission
and is competent to conduct parachuting safely, having regard in particular to
the applicant’s—
(a)previous
conduct and experience; and
(b)equipment,
organisation, staffing and other arrangements.
(4) An aircraft must not be used for the
purpose of dropping persons unless the aircraft (a)has a certificate of
airworthiness and (i)that
certificate has been issued or rendered valid for that aircraft under the law
of the country in which the aircraft is registered; and (ii)that certificate,
or the flight manual for the aircraft, includes an express provision that it
may be used for that purpose; or
(b)has been
authorised for the purpose of dropping persons by — (i)the CAA or
(ii)an organisation approved by the CAA to provide such an authorisation, and
is operated in accordance with a written permission granted by the CAA under
this article; or
(c)is operated
under and in accordance with the terms of a police air operator’s certificate.
(5) Every applicant for and holder of a
parachuting permission must make available to the CAA if requested a
parachuting manual.
(6) The holder of a parachuting permission must
make such amendments or additions to its parachuting manual as the CAA may
require.
(7) The holder of a parachuting permission must
make its parachuting manual available to every employee or person who is
engaged or may engage in parachuting activities conducted by the holder.
(8) The manual must contain all such
information and instructions as may be necessary to enable such employees or
persons to perform their duties.
(9) Nothing in this article applies to the
descent of persons by parachute from an aircraft in an emergency.
The
Air Navigation Order establishes the extent and limitations of CAA jurisdiction in relation to
parachuting. The CAA has regulatory oversight of all persons on the aircraft and must
give permission for a parachutist to exit. Once the parachutist has exited
and cleared the aircraft, responsibility for regulatory oversight reverts from
the Civil Aviation Authority to the Health and Safety Executive.
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Letter of the Law on Parachuting Oversight
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Responsibility
for receipt of reports and investigation of accidents relating to parachuting
reside with the Air Accident Investigation Branch if the accident occurs in or
on the aircraft, or the parachutist comes into contact with an aircraft as in the case of the death of John Ward.
In
other cases, skydiving and parachuting accidents are reportable under RIDDOR
and fall within the jurisdiction of the HSE. This is further clarified in the
CAA/HSE Memorandum of Understanding, Version 4.0 issued in December 2016 with
CAP 1484 providing guidance in relation to the relevant authority remit.
CAP 1484
CHAPTER 1
Scope
1.2 HSE
health and safety function
§ By
agreement HSE is responsible for regulating the occupational health and safety
of all work activities on and around an aircraft on the ground, except the
activities of crew members whilst they are on board the aircraft.
§ The
HSE retains enforcement responsibilities for health and safety employee and
employer consultation legislation.
1.3 CAA aviation safety function
§ These
functions include the safety of air navigation and aircraft including
airworthiness, the control of air traffic, the certification of operators of aircraft
and the licensing of air crew members and aerodromes.
Derivation of legal powers
1.6 HSE health and safety function
§ The
Health and Safety at Work etc. Act 1974 (HSWA) places general duties on
employers to look after the health, safety and welfare of their employees. They
also have duties to protect the health and safety of other persons who may be
affected by the work activity. It places similar duties on the self-employed.
It also places duties on employees to look after their own and others’ health
and safety.
§ Regulations
made under the HSWA generally make more explicit what employers are required to
do to manage health and safety.
§ Both
the HSWA and regulations made under the Act covering particular hazards or
sectors of work require that risks arising from the work activities are
controlled, so far as is reasonably practicable.
1.7 CAA aviation safety function
§ Safety
regulatory functions of the Civil Aviation Authority derive from the Civil
Aviation Act 1982 and from its designation as the United Kingdom competent
authority for the purposes of European aviation safety regulations.
§ The
detailed powers and obligations for aviation safety functions are set out in
Air Navigation Order 2016 (ANO) made pursuant to Section 60 of the Civil
Aviation Act 1982 and in Regulations (such as the Rules of the Air Regulations,
Air Navigation (General) Regulations and Air Navigation (Dangerous Goods)
Regulations made pursuant to powers contained in the ANO.
§ Additionally
Regulation 216/2008 establishes the European Aviation Safety Agency and enables
detailed implementing rules to be made. The implementing rules deal with
initial aircraft certification, continuing airworthiness, aircrew licensing,
aerodrome certification and aircraft operations. For each of these, the CAA is
designated as the UK competent authority.
1.8 CAA occupational health and safety function
§ The
CAA’s occupational health and safety regulation functions are set out in the
Civil Aviation (Working Time) Regulations 2004 (as amended).
§ These
regulations require that the health and safety of crew members be adequately
protected while they are at work for UK registered operators.
Chapter 6
Flying for personal transportation, recreational flying and
parachuting
CAA remit
6.2 The CAA is responsible, under the terms of the Civil
Aviation Act and the Air Navigation Order (ANO), and where applicable, European
Union regulations for generally regulating the safety of all aviation
activities.
HSE/LA remit
6.4 The HSE and the relevant Local Authority (LA) are
responsible for enforcing health and safety law at all premises. Detail is
contained in the Health and Safety enforcing regulations and associated
guidance.
6.7 Many recreational and personal transport flying activities
provide employment, either in connection with the main activities or as a
sideline. Chapter 1 to this guidance gives details of the appropriate
application of legislation.
6.8 There are certain circumstances in which the HSE/LA may
become involved in investigations into accidents. For example, civilian
parachuting accidents must be reported to AAIB only if the accident occurs
while the injured party is in or upon an aircraft or by direct contact with any
part of an aircraft. Accidents are reportable to the HSE/LA when they arise out
of or in connection with work.
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BPA: 44 skydiving
fatalities since 1996?
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BPA Ltd COO Tony Butler has been quoted in the media as claiming to have been involved in investgations into more than fifty skydiving-related deaths during his thirty-year career with BPA Ltd. BPA-affiliated Parachute Training Organisation operators attribute many of these deaths to bad canopy-handling skills.
The average British skydiver receives six hours of training before his or her first solo jump compared to British military parachutists who undergo around 137 hours of training during their Basic Parachute Course at RAF Brize Norton. Military parachutists at all levels are trained by government-qualified instructors whose qualifications can be proven.
All of this raises the question of why there has never been any prosecution or other
enforcement action in relation to a skydiving accident nor even a probation or
improvement notice. The BPA oversees parachuting but who oversees –- and regulates –- the BPA?
Bravo Three Zero
