An emerging consequence of the Coronavirus pandemic (COVID-19) is the challenges faced by commerce and industry in meeting the requirements to complete statutory thorough examination and testing (TE&T) of plant and equipment to meet duties under the Lifting Operations and Lifting Equipment Regulations (LOLER) and Pressure Systems Safety Regulations (PSSR).
Difficulties in completing TE&T may arise due to four key issues:
- Reduced availability of engineers to complete TE&T due to sickness absence or self-isolation as a direct result of COVID-19.
- Owners of plant and equipment (dutyholders) refusing access to premises for TE&T as they feel unable to accommodate visiting engineers while maintaining social distancing (SD) in the workplace.
- Refusal of engineers to enter a dutyholder’s premises to carry out TE&T due to concerns over SD arrangements being adequate.
- Plant and equipment being unavailable for TE&T if a workplace or site is closed due to COVID-19 SD restrictions.
Effectively in these cases TE&T may not be taking place due to either unavailability of or unwillingness of competent persons to deliver the service, or due to dutyholders inability or unwillingness to give access to the equipment for testing.
TE&T is a critical component of a management process to ensure the safe operation of equipment whose failure through deterioration can create dangerous situations, physical harm and business disruption. The legislation applies across all industries that use lifting equipment, pressure systems and so on, and as such the risks posed should dutyholders deviate from the required TE&T regime, and the consequential reductions in the level of protection for the workforce and others, may have different consequences from one business to another.
The enforcement authorities recognise that there may be some circumstances that will lead to equipment falling outside its time limits for TE&T, and therefore dutyholders being unable to comply with the law and having to take the equipment out of service if unable to operate it safely.
The statutory obligations remain in place and the following is intended to ensure that work plant and equipment remain safe to use and provides a framework for decision making if TE&T requirements cannot be met. This guidance is intended primarily to help dutyholders and the inspection bodies maintain the overarching scheme of thorough examination and testing. It then sets out a risk-based approach to be applied when all attempts to ensure TE&T have been exhausted.
The statutory obligation to ensure that work plant and equipment is maintained and is safe to use remains in place and the use of TE&T continues to be a fundamental part of the management process.
HSE expects dutyholders to make all reasonable efforts to arrange for TE&T to be carried out within the statutory time limits. This will include:
- Ensuring inspection bodies have access to equipment in a timely manner.
- Working with the inspection body to manage appropriate SD in the workplace, to satisfy both your needs and those of the inspection body, as part of the Government drive to manage the spread of COVID-19.
- If your business is not currently operating and staff are furloughed, consider allowing access to the inspection body so that equipment is ready for when your business reopens. Otherwise you may have to delay restarting that equipment until it has been subjected to a TE&T.
- If your inspection body is unable to provide engineers due to staff absence, make reasonable attempts to source engineers from another provider.
Inspection bodies are expected to undertake TE&T to meet their clients’ needs, and also to consider how they may prioritise resource to support the safety of higher risk areas and to meet Government’s drive to ensure essential industries and services continue to operate. This will include:
- Working with the clients and dutyholders to manage access for TE&T with appropriate SD in the workplace, to satisfy both your needs and those of the dutyholder, as part of the Government drive to manage the spread of COVID19.
- Consider seeking access to businesses that have furloughed staff and are not currently operating so that equipment is ready for when your business reopens.
- Where availability of engineers and other inspection staff becomes a limiting factor consider how resource can be prioritised to support key industries and to address the most significant areas of risk.
If a Thorough Examination Cannot be Undertaken
There are likely to be circumstances that result in some dutyholders finding it difficult to comply with statutory requirements for TE&T and that they may see a need for work equipment to operate beyond the period of examination. In making decisions about whether equipment should be taken out of service once the examination period has passed the primary and overriding statutory obligation is to ensure that work plant and equipment remain safe to use.
If dutyholders, having worked with their inspection body as outlined above, are unable to arrange a periodic inspection within the specified time period, they must take competent advice (e.g. from their inspection body) and apply a robust, risk based approach to decision-making about the continued operation of plant and machinery outside of the statutory regime.
If the conclusion is that the equipment cannot be used safely then it must be taken out of use.
If dutyholders conclude that the equipment can be used outside its testing period they must document the efforts they have made to get the plant examined; their decision-making process, and the factors considered to justify their decision to continue operating plant or equipment. Dutyholders should consider whether the plant or equipment should be removed from use, either ceasing that particular operation or using an alternative system of work, processes or piece of equipment. If these options are not feasible, then additional measures should be identified that are required to minimise any potential risks arising from continued use. Additional measures may include a robust inspection or extra maintenance by competent persons with management oversight. Agreement should be reached with the competent person in all instances.
Where such contraventions of statutory compliance can be demonstrated to be directly attributable to the Covid-19 pandemic, the enforcement authorities will adopt a pragmatic and proportionate approach towards enforcement actions for non-compliance. Equipment should only be used outside of its test regime, if the dutyholders can demonstrate that it is critical for essential work and that it can still be operated safely.
The dutyholder must also be able to demonstrate that they have made all reasonable attempts to have the TE&T carried out, and they have made a thorough assessment of the increased risk and taken appropriate action to manage it.
For the purposes of this guidance, essential work is work the Government have identified as critical to the COVID-19 response. This includes work in, or in support of, all the Government’s list of critical sectors.
Issues to be Addressed in the Risk Assessment Considering Continued Operation
The exact scope of a suitable risk assessment will be dependent on the particular circumstances of the equipment that requires thorough examination, but should include consideration of at least the following:
- Have you considered if alternative equipment, or some sort of alternative process, is available?
- Can you explain how the operation of the equipment is in support of essential work? Are you within a listed industry sector, or can you explain how your work is essential to support the continued operation of those sectors?
- The immediate potential degree of harm that could result if the equipment failed – collapse on to people, damage to building, major explosion?
- If relevant, the ability for the failure of this equipment to cause wider harm – is there a risk of some form of ‘domino’ effect failure, resulting is a much greater degree of harm?
- A review of the written scheme and the history of past thorough examination and maintenance reports – in particular, any specific points on past issues identified as requiring additional observation/test/repair or revisions to the scheme?
- Any comments or advice received from the competent person or maintenance staff regarding common potential causes for concern or additional checks or routine maintenance that should be undertaken.
- The working environment and use being made of the equipment – e.g. is it in an environment that promotes corrosion, is minor ongoing damage a common occurrence?
- What additional measures you are putting in place to help manage the risk – extra checks, additional maintenance, process or operational changes, additional personnel training or restrictions, limits to maximum loads/pressures, etc.
- What is the competency of the persons able to undertake routine checks and maintenance, or any additional checks and maintenance you have identified as being needed? – Do you have access to competent maintenance engineers or only the operators doing visual checks?
- When do you intend to review this risk assessment to determine if continued operation can continue? This should include a consideration of how long it will be before TE&T is likely to recommence and when you will review if further additional measures may need to be put in place e.g. temporary reduction of maximum operating loads/pressure.