Guidance, Codes of Practice, Approved Codes of Practice and Standards – whilst these are all terms those with health and safety roles and responsibilities may be familiar with, what is the real difference between them in the eyes of the law?
The Health and Safety Executive (HSE) refers to guidance in relation to a wide range of health and safety matters and publishes a very wide range of guidance materials on its website. HSE guidance is exactly what it says it is – guidance. It therefore has no automatic statutory effect so, unless there is a law or regulation making it mandatory to follow some specific guidance, it is not compulsory for employers and other duty holders to follow it. To put it another way, failing to follow guidance that isn’t made mandatory by law or regulation will not in itself constitute a breach of health and safety law. Employers are free to take other action outside of the guidance so long as they comply with the law by other means.
Following the guidance, however, usually ensures that employers are complying with the law.
When taking enforcement action, HSE and other safety enforcing authorities may (and often do) refer to HSE guidance and other guidance issued by, for example, trade and industry associations such as the Mineral Products Association, Construction Industry Council, British Precast, and the Electrical Contractors Association (the list isn’t exhaustive), even in cases where the employers and duty holders aren’t members of the association.
Approved Codes of Practice are approved by HSE with endorsement from the Secretary of State and as a result have special legal status. If an employer is proven not to have complied with an Approved Code of Practice, then it will only be able to defend enforcement action if it can prove that the measures it did take were every bit as effective as if they were following the relevant Approved Code of Practice. This is not an easy task! Because of the stringency inherent in an Approved Code of Practice it is very difficult for a duty holder to deviate from it and yet still comply with the law.
Unless or until a Code of Practice is formally approved, it cannot have the status of an Approved Code of Practice. Depending on what it is and what it relates to it may be looked upon as “guidance” - until such time as it is approved - but might be more appropriately viewed as “informative”, more than “instructive.
Standards, whether British (‘BS’) or European (‘EN’) generally have no legal effect in themselves. They can sensibly be viewed as ‘best practice’ tools or methods for those using them or those being required to use them. In the latter case, where a person or entity is required by a third party to use a Standard and doesn’t, the failure to comply with the Standard would not amount to a criminal offence but could amount to a breach of contract with the third party.
There are however exceptions to the general proposition that Standards have no legal effect, and this is where a statutory provision (law or regulation) requires a standard to be used, adopted or met. Therefore, it is important that duty holders familiarise themselves with relevant regulations and check whether a particular Standard is stipulated as a requirement of compliance. It should be noted however that more often than not Standards will be referred to in Approved Codes of Practice and guidance, rather than in the statutory provision itself.
| Legal Status | |
| Codes of Practice (CoP) | Unless it is ‘Approved’ (see below) should be viewed as guidance or informative |
| Approved Codes of Practice (ACoP) | A Code of Practice that has been endorsed by the Secretary of State. Should be followed as it is for the employer/duty holder to prove compliance with the law by other means and it will be very difficult to do so. |
| Guidance | No automatic statutory effect (unless there is a law or regulation stating that some specific guidance must be followed) but an informative guide to compliance. |
| Standards | ‘Best practice’ tools or methods generally have no legal effect unless a statute or regulation requires a specific standard to be used, adopted or met. |
If you require any further information or specific advice, please do not hesitate to contact us on 07776 240250
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
To contact us, please fill out this form and we will get back in touch as soon as possible. Your personal data will be processed in accordance with our privacy policy which can be found here.
Thank you for your enquiry. We will respond as soon as possible.
