HSE & recreational divers

[graham bowers]

Down at the club last night I was told that the HSE were taking an interest in amateur divers and were going down to dive sites and checking kit was in service. I'm not sure if this extended past cylinders to other bits of kit which as far as i know have no mandatory service interval.
Anybody else heard of this please? Nothing on the HSE website or by googling.
Cheers
Graham

[Ben Panter]

Hi Graham,

HSE rules will only apply if you are at work, ie teaching for gain. As a BSAC instructor you're probably not 'gaining' when giving instruction, but if you were you would have to follow HSE Code of Practice etc. This is why clubs should look very carefully at how instructors are rewarded for teaching, and that they cannot be said to be 'at work'.

They may well be there checking up on PADI schools/instructors teaching. There are some very strict rules on risk assessment, marshalling and dive plans which a school recently got done for. Equally the equipment servicing/logging intervals

As an ordinary diver there are no 'laws' which govern you on most dives - it is perfectly legal for someone to take Grandad's kit out the garage which hasn't been used for the last twenty years and wander down to the beach and try and find out how it all works. Immensly inadvisable yes, illeagal no.

This isn't to say that the HSE guidelines ACoP are a bad thing - instuction in branches, heck even diving in branches, would probably be considerably safer if the full HSE deal was required. It is a lot of faff though, and I don't think it should be mandatory. A good look through the regs can't hurt though if you have access to them.

hope that clears it up for you,

Ben

[Keith Lawrence]

Down at the club last night I was told that the HSE were taking an interest in amateur divers and were going down to dive sites and checking kit was in service. I'm not sure if this extended past cylinders to other bits of kit which as far as i know have no mandatory service interval.The rumour is untrue, this is one of those myths that's been doing the rounds for ages and no matter how many times you hear it I can promise you that it is still not true! The clue is in the term 'Recreational' and the HSE's remit which relates to the Health and Safety AT WORK legislation, the HSE have no remit whatsoever (and are not interested in) amateur and recreational hobbies.

However, that does not mean that health and safety issues and basic duty of care can be ignored, they cannot and they must not be. Within amateur clubs the best practices such as full and written risk assessments and correct safety briefings should always be given and a common duty of care excercised, just because "the law" may not strictly apply these issues must not be ignored.

Also be aware that it is not unknown for some dive shops to try and hide behind the HSE and tell divers that their practices are "the law" when they do not in fact apply to recreational divers or are just dive industry agreements with no backing whatsoever from legislation. At various times I have been told by dive shops -

That my cylinders must be painted in a specific way.
That I must have a safety sticker in my car when transporting cylinders.
That by law I must have an annual O2 clean.
That they cannot sell me components such as O rings due to HSE legislation.All of the above are COMPLETELY UNTRUE (try checking with the HSE - I have!) and are nothing more than misinformation which is how these stupid rumours often start.

HTH

Keith L

[graham bowers]

Thanks Ben and Keith
I felt a bit like I was asking if you could get pregnant by kissing, but the urban myth was propogated so plausibly :-))
Cheers
Graham

[Andy Wade]

Thanks Ben and Keith
I felt a bit like I was asking if you could get pregnant by kissing, but the urban myth was propogated so plausibly :-))
Cheers
Graham

Hi Graham,
You can get pregnant by kissing.... eventually. :p
I also recall something about going blind if you....
Hmmm, maybe not. :D

Jens Hucke and Steve Foote kindly wrote a couple of articles for the Dive Instruct web site about The HSE and Diving here:

http://www.diveinstruct.org.uk/goingpro.html

As Keith has said, there are no restrictions on recreational divers from the HSE. Although, should you accept a bottle of whiskey for clearing a propellor, things would change.

[John Williams]

Although, should you accept a bottle of whiskey for clearing a propellor, things would change.

or a packet of crisps?
or a cup of tea?

Or shall we haggle over the price?

If I carry your kit back to the car for you because you're cold and need a hot drink ...and you get me a hot drink in return for my efforts?

have we done each other a favour...or have you paid me for humping your kit around with a cup of tea?

(what's the difference between this and a bottle of whiskey?...except the price!)

And if I drop a cylinder on your mask whilst in your "employ" ....?

Now ...I'm not going to lose ANY sleep over this at all... but each and every situation is different.

It's a bit like the insurance answer already given in another thread... until each case is tested in court you just don't know where "recreation" and "work" overlap!
The HSE will not take any interest at all unless you are definately "at work" or in court ....BSAC diving does not come under the heading "definately 'at work'" unless you work for a BSAC school and things only get to court when stuff goes very badly wrong!

How about we look at it this way?:
If it's fun (and it costs you to do it) then it must be recreation!
When it ceases to be fun (and you get given stuff for doing it) it must be work!

If it's work ...you'll probably know about it in advance and will need to prepare for it (with Medicals, professional insurance, contracts etc)

So keep doing each other favours as long as it's fun to do it!
(just don't expect/accept anything other than a favour in return!)

HTH

John

[Philip Smith]

As Keith has said, there are no restrictions on recreational divers from the HSE.

That is quite right in context, but for the anoraks amongst us, it may be interesting to note that persons "who may affect the safety of" a diving operation at work come within the scope of the Diving at Work Regulations. At a busy training site, that could conceivably include amateur divers interfering in some way with diver training by a professional instructor, in which case the professional diving supervisor may give the amateurs "reasonable directions" (and that does not mean the best route to the pub!).

Although, should you accept a bottle of whiskey for clearing a propellor, things would change.

Yes, although the consequences would depend on the value of the bottle and the level of reasonable expenses incurred in doing the job.

Phil S.

[Andy Wade]

That is quite right in context, but for the anoraks amongst us, it may be interesting to note that persons "who may affect the safety of" a diving operation at work come within the scope of the Diving at Work Regulations. At a busy training site, that could conceivably include amateur divers interfering in some way with diver training by a professional instructor, in which case the professional diving supervisor may give the amateurs "reasonable directions" (and that does not mean the best route to the pub!).



Yes, although the consequences would depend on the value of the bottle and the level of reasonable expenses incurred in doing the job.

Phil S.

I don't have an anorak, will a kagoule suffice? :)

Indeed, what we do for our mates will never reach the ears of the HSE anyway, as John said, what about a bag of crisps? Well for me that scenario would never really arise, except maybe in an incident.
Where do we draw the line?
However, accepting just one penny above reasonable expenses would be earning from diving and it's at that point where we should consider the HSE.
IMO it's the point at which you should realise the road you're going down and decide whether or not you should be profiting from diving as an amateur.

If a yachty came up to me and asked if I'd dive under his boat to clear his prop, then yes I'd probably do it, but no money would change hands except to cover my costs. And what are we talking here... 50 pence worth of air?
And if it all went OK and no-one got hurt, then I might accept a token of his thanks for my trouble afterwards.
I certainly wouldn't be daft enough to agree a price first, as that would be a contract.
I'd prefer to just foster good relations between yachties and divers. Nowadays we need all the friends we can get.

[JamesW]

When I spoke to the HSE rep at the Londons dive show he told me if you accept any payment of any kind you are then getting paid so you then come under the 1997 ACOP so how do BSAC/SAA/SSAC get away with the Instructors charging expences.

Thanks

[Andy Wade]

When I spoke to the HSE rep at the Londons dive show he told me if you accept any payment of any kind you are then getting paid so you then come under the 1997 ACOP so how do BSAC/SAA/SSAC get away with the Instructors charging expences.

Thanks

Ah, that's because expenses are costs, not payment for your labour.
If you're self employed for example, then you can claim car running costs, office expenses, and materials required to do a job against the full cost you charge to your customer, and when these are all deducted, what is left is chargeable against tax. i.e. earnings.
If I was a professional diving instructor and I took you training to Stoney, I would charge for running costs incurred. Which would be the cost of cylinder fills and entry fees, and maybe even a small charge against wear and tear on my equipment, and my vehicle expenses, but anything over this is for my time. That is a payment to me directly for my labour. And if I get paid a wage, then I come under the HSE. Technically - even a penny.
Of course I would also back this up with the relevant receipts for expenses and put them in my accounts against my income tax.
As an amateur instructor, I wouldn't charge a bean, except maybe something towards sharing diesel costs and maybe entry fees. My time would be entirely free, buy me a beer and a bacon sandwich if you feel the need, I wouldn't object to that.
And you can't tax a bacon sandwich.
Well, no more than they already do. :D

[Edward]

When I spoke to the HSE rep at the Londons dive show he told me if you accept any payment of any kind you are then getting paid so you then come under the 1997 ACOP so how do BSAC/SAA/SSAC get away with the Instructors charging expences.

Thanks

This extract from the BOH should help:

***
Diving and the Health & Safety Executive:
There is much confusion within the diving world as to the role of the Health & Safety Executive in relation to the instruction of recreational diving. Instructors working within a school or business teaching recreational diving skills are ‘commercial divers’ and come under the Diving at Work Regulations 1997, which the Health & Safety Executive enforce. Instructors within a members club teaching recreational diving skills to other club members do not (currently) come under the Diving at Work Regulations 1997.

Could instruction in a Branch be considered commercial?
The growing practice of diving instructors claiming expenses, either directly from their students or from Branch funds, has raised the question of whether these instructors are diving commercially and therefore come under the Diving at Work Regulations 1997. The definition of a diver under the Regulations is:

“a person at work who dives”

The following definition of “work” is derived from the Health and Safety at Work etc. Act 1974:

“working under a contract of employment, or otherwise working for ‘gain or reward’”

If a Branch were to pay an instructor in excess of his expenses to teach students to dive, the instructor would be diving for “gain or reward” and the Diving at Work Regulations 1997 would apply. The Courts could view the Branch either as the employer of the diving instructor, in which case the Branch would be the “Diving Contractor”, or as the “Client” of a self-employed diving instructor, in which case the instructor would be the Diving Contractor. In either case, both the Branch and the instructor would have legal obligations under the Regulations, which would be difficult and expensive to comply with.

However, if the only payment to instructors were the reimbursement of expenses incurred by them through instructing, the instructors would not be diving for “gain or reward”, they would therefore not be “at work” and the Diving at Work Regulations 1997 would not apply.

Note: “Gain or reward” is not limited to payment in money, but may include other non-monetary benefits. To avoid coming within the scope of the Diving at Work Regulations 1997, the value of any money, goods or services paid to divers must not exceed the demonstrable expenses incurred by them.

***

HTH

Edward

[Bob Elliott]

Hi Graham

Just a thought. The MCA have been checking amateur boats, alongside professional boats, in the South West this season. As a result of SOLAS (safety of lives at sea) all craft are required to have a passage plan and to carry basic safety equipment. The MCA Rib has been out in Weymouth and Plymouth, to my personal knowledge, checking all boats that the come accross.

I know that this is nothing to do with the HSE but thought hat you might lke to note the fact that the authotities are taking notice of amateur activity.

Bob Elliott - Quality Time Training (Weymouth)Ltd

[peter h]

How does this apply if I find something valuable while diving recreationally and subsequently profit from it? I am thinking of anything from golf balls in my local lake to the fabled pirates treasure we all want to find!

Peter H - very amateur diver

[Ben Panter]

Golf Balls:
http://www.hse.gov.uk/press/2002/e02109.htm

I have the impression that the RoW and HSE would take a dim view on you selling a bottle of whisky recovered from the Wallachia, but if you'd declared it I don't really know why.

There's some story in the back of my head about someone trying to sell such a bottle of whisky, but I can't for the life of me either remember the details or find it on google. As such it is highly likely to be urban myth!

Ben

[Hickdive]

Hi Ben,

The urban myth I recall about the Wallachia whisky was that C&E were more interested in the possibility that it may have been sold without the duty being paid. However, when they examined another bottle it became clear that the contents could never be sold as drinkable and they lost interest.

Mind you that was a looong time ago (when we slept in a rolled up newspaper in a septic tank etc)

Steve

[Philip Smith]

Golf Balls:
http://www.hse.gov.uk/press/2002/e02109.htm


Further to the HSE's interest, in 2002, a diver retrieving golf balls without the golf club's permission was prosecuted and jailed for theft.

Philip Smith