Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) - Thorough Examination of PPE and the need for conformity

Arboriculture has long been a home for solution based people and gear innovation. Indeed many items of kit we take for granted have evolved from experimentation and creative thinking, with ideas borrowed from recreational climbing and caving. Examples such as the DMM Pinto pulley show a specialist product that followed an idea to tie into the becket of the Petzl PO5 pulley. Or the use of toothed based ascenders borrowed from recreational caving in the early days of SRT.  Often these ideas are seen as new by a younger generation of climbers, yet many have a long history. This background is perhaps linked to a resistance to conform that runs through much of the industry and failure to comply to other important regulations. 

The requirements under LOLER are much wider in scope than just carrying out a Thorough Examination, and as we often see on our tree climbing refresher courses the pre-use or daily checks are where the problems lie. Kit that has current LOLER thorough examination evidence is often unsafe to use due to day to day issues such as wear and debris accumulation or or is often misconfigured, a frequent example being a Petzl zigzg set up with an unspliced rope or incorrect diameter rope. 

Importantly, LOLER is also about planning, managing and safety in lifting operations, not just the detail about individual components. Nevertheless, this article will largely ignore all of that and has a tiny yet contentious focus, and is typical of the depth of discussion on our LOLER Thorough Examination courses!

This article explores the issues around conformity, that is conformity to a standard which can be confirmed by the presence of a CE mark or a UKCA mark and whether conformity is a requirement in order to reach a conclusion of safe to use by those carrying out LOLER Thorough Examinations. The ideal outcome is industry consensus and clarity on items presented without conformity evidence.

Specifically we will look into:

• Conformity of PPE to a standard and what this means.
• LOLER UK legislative requirements
• UK legislative framework
• PPE regulations 
• Industry guidance
• Competent Person role

Currently there is a range of opinion, with some looking at LOLER in isolation and finding nothing in LOLER to preclude the Thorough Examination of such items. They suggest it is for the Duty Holders to decide whether an item should be used, not the person carrying out the Thorough Examination. Logically then, an item can be found to be both safe to use (by the competent person) and not appropriate to use as decided by the duty holder. Potentially, a confusing situation.

Of course, Duty Holders may be relying on competent advice in arriving at their equipment choices, meaning the LOLER competent person should give advice in the context of all the relevant OH&S legislation.

LOLER doesn’t exist in isolation, this is evident from the very start of the Approved Code Of Practice (ACOP) where the Management Regulations are referenced. In addition LOLER builds on PUWER. Conformity is mentioned in the ACOP, where lifting equipment can be put into service without a Thorough Examination where there is a declaration of conformity.

Employers must comply with a wide range of regulations all framed in the UK by the primary or enabling Health & Safety a Work etc. Act, 1974. This Act is wide in scope and covers nearly all work activities. Duties are imposed on employers, the self-employed and employees.

Within HSAWA section 2 duties to provide safe systems of work, provide information, instruction, and training and safe use, handling, transport, and storage of articles and substances are relevant to the certification topic. Can a tree climbing system of work be safe when the equipment doesn’t have validated performance criteria? Often non certified products have limited user information, which again constrains the delivery of training and information to employees using the PPE.

The Management of Health and Safety at Work Regulations 1999 (MHSWR)

The purpose of the MHSWR is to specify how employers must manage the process of ensuring the health and safety of their employees and others affected by their activities. This means having a Health & Safety management system is a legal requirement. (Regulation 5) Precautions must be based on risk assessments undertaken by competent persons and adequately recorded. 

Risk assessments need to be suitable and sufficient, in the context of this conformity discussion that means a proper check was done and the level of detail in a risk assessment is proportionate to the risks and appropriate to the nature of the work. Falls from height generally cause significant injuries often with long term complications so warrant a significant amount of time, trouble and resources to avoid.

A coherent prevention policy would logically include the selection of climbing PPE that was tested and complied to a relevant standard and had sufficient detail in order for instructions and training to be given to employees.

The PPE regulations 1992 require that employers provide suitable personal protective to employees who may be exposed to risks to their health or safety while at work except where the risks can’t adequately be controlled by other means. This acknowledges that the use of PPE is at the bottom of the hierarchy of controls, and is usually the least effective way of managing risks. 

The phrase suitable is defined and means that the PPE needs to comply with a range of requirements such as appropriate for the risks involved and conditions of exposure, takes into account ergonomics, fits the wearer and is adjustable and doesn’t increase the risks. PPE must also comply with any legal requirement which is applicable to that item of PPE, and this statement is then qualified by reference the EU regulation 2016/425 Annex II.

EU regulation 2016/425 then sets out that PPE shall meet the essential health and safety requirements set out in Annex II which apply to it, namely that the item has a CE mark or UKCA and references the relevant standard to which it was certified. Additional requirements to have user instructions for storage, use cleaning, maintenance, servicing and disinfection are all eminently sensible and helpful to us as end users of the products.

PPE covered by the PPE Regulation are split by their relevant conformity assessment procedures and are commonly known by the following categories:

• Category I (“simple design”): The manufacturer declares conformity by means of an EU declaration of conformity only, such as gloves protecting against superficial cuts.
• Category II (neither simple nor complex): subject to an EC-type examination by a Notified Body and an EC declaration of conformity is then produced;
• Category III (so-called “complex design”): subjected to EC-type examination and to one of the two Quality Assurance procedures before an EC declaration of conformity is produced, includes PPE for protection against falls from height, cuts from chainsaws and hearing damage.

My suggestion is that it’s important to support the industry with a clear and consistent message, and that on balance the benefits of demanding conformity in LOLER Thorough Examinations puts us in a more defendable position; is a better fit with the requirements to have a H&S management system (Management Regs);  fits into the principles of prevention and hierarchy of controls and is in accord with the requirements of the PPE regulations and PUWER.

Conformity analysis in relation to arboricultural PPE - Legislative & industry guidance compliance