R v Fartygsentreprenader AB, Fartyskonstructioner AB, Port Ramsgate Ltd and Lloyd's Register of Shipping, unreported 28 February 1997 
Edwards v National Coal Board [1949] 1 AER 743 
R v The Board of Trustees of the Science Museum [1993] 3 AER 853

With 9/11, the Iraq War and the situation in Israel, there is now a heightened concern about the risk of a terrorist attack. There are specific criminal laws to deal with the threat - the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001. In July last year Lord Macdonald, Minister for the Cabinet Office, said the government intends to introduce "civil contingencies legislation to enhance the safety and security of the UK". This is to replace the Civil Defence Act 1948 and associated legislation, which the government considers as outdated.

However there are no specific health and safety laws which deal with this type of risk and set out what employers are expected to do. In the September 2002 edition of the magazine Industrial Safety Management its editorial warned:

"A recent report by professors from Salford University indicates that large portions of industry still have not taken the potential [terrorist] threat seriously and have not made adequate plans...At the moment we seem to be adopting the typical British approach of muddling through, if and when the event occurs!"

So what exactly is an employer's duty?

The Health and Safety at Work Act 1974

The purpose of the Health and Safety at Work Act 1974 (HSWA) is contained in Section 1 of the Act. Its aims are to protect the health, safety and welfare of people at work and to safeguard others, mainly the public, against risks to health or safety from the way work is carried out and the hazards associated with the work.

The Act requires employers to ensure "so far as is reasonably practicable" employees, (Section 2) and non-employees, (Section 3), are not exposed to risks to their health and safety from the employer's undertaking (ie business).

The test for what is reasonably practicable was set out in the case of Edwards v National Coal Board [1949] 1 AER 743. This case established the risk must be balanced against the 'sacrifice', whether in money, time or trouble, needed to avert or mitigate the risk. By carrying out this exercise the employer can determine what measures are reasonable to take. This is effectively an implied requirement for risk assessment.

If a terrorist attack is a possibility at a place of work, then the HSWA requires employers to take adequate precautions. The fact that the risk is not of the employers' making does not diminish employers' responsibility.

By way of analogy, on 10 April 2003 at Coventry Magistrates' Court Network Rail Infrastructure Ltd, formerly Railtrack plc, was convicted of a breach of the HSWA, in relation to a vandalism hotspot at Willenhall, Coventry. The court emphasised the dangers of crime on the railways and the importance of effective management of lineside security.

Risk assessment

Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR) sets out the general requirement upon employers to carry out risk assessments with respect to the health and safety hazards involved in their business. A hazard is something with the potential to cause harm. The assessment is to identify control measures that eliminate the risk or, if this cannot be done (so far as is reasonably practicable), reduce the level of risk to the lowest level reasonably practicable.

In R v The Board of Trustees of the Science Museum [1993] 3 AER 853 the Court of Appeal said that risk means the possibility of danger and not just actual danger.

Employers might argue that the likelihood of a terrorist attach is so small it does not require them to take action. However, in assessing the risk it is not only the frequency of the hazard occurring that needs to be considered, but also the harm that might occur if it does. If the potential harm could be catastrophic, then the employer is required to act. Risk is the product of the frequency and likely severity of harm of the hazard.

This was emphasised by Mr Justice Clark in his sentencing remarks in the Health and Safety prosecution following the collapse of a walkway to a ferry at Port Ramsgate in 1994, which killed six people. He said:

"...if thought had been given to its responsibilities especially having regard to the provision of the [HSWA], Port Ramsgate could have appreciated that there were potential risks, albeit, perhaps very small risks...Further, once it was appreciated that there were potential risks, it would have been appreciated that such risks should have been guarded against because of the catastrophic consequences if anything went wrong". (R v Fartygsentreprenader AB, Fartyskonstructioner AB, Port Ramsgate Ltd and LloydÕs Register of Shipping, unreported 28 February 1997)

Information to the employees about the risks

An article in the Financial Times on 6 February 2003 had the headline Employers refuse to pass on terrorism warnings. However, under Regulation 10 of the MHSWR employers "shall" give to employees "comprehensible and relevant" information on risks to the employee's health and safety identified by any risk assessment and the preventative and protective measures in place. Under Regulation 8, if employees are exposed to serious and immanent danger they are to be informed, so far as is reasonably practicable, of the nature of the hazard and what steps are being taken to prevent them.

In November 2001, the interim report of the National Steering Committee on Warning and informing the public was formally submitted to the Civil Contingencies Secretariat. One of its main recommendations was the creation of a planned programme of public education, supported by Government finance and endorsement, for the development of greater public awareness of the correct actions to take in the event of a major emergency and of the means by which this advice and information could be given. 
It may be that employers fear giving certain information to employees because of the alarm it may cause. However, if giving information to the public is seen as an important aspect of dealing with the terrorist threat then, clearly it should be an integral part of an employer's approach.

Conclusions

The threat of terrorism is nothing new. For example, London has lived with the threat for over 30 years dating back to the concerns about the terrorist activities of the IRA in the 1970s. However what is new is the nature of the threat. There is now talk of a possible Chemical, Biological, Radiological and Nuclear (CBRN) attack. There is also the emergence of the suicide bomber.

The reality is that the risk of terrorism is one that has to be risk assessed like any other. This means employers need to, for example, look at their security arrangements, the training and information given to employees, and emergency procedures in the event of an attack happening.

By involving its workforce an employer might be worried about causing panic. But an employer is required to put in place appropriate control measure to deal with the risk, which inevitably requires the employer to engage with its workforce about how the risk is being addressed. If this is not done, then the employer will almost certainly be in breach of its health and safety duties.