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Flying high? Surveying the health and safety implications of drones

  • Market Insight 11 August 2020 11 August 2020
  • UK & Europe

  • Insurance & Reinsurance

The use of drones (also referred to as unmanned aerial vehicles) continues to increase across various industries including off-shore, construction, surveying, infrastructure, warehousing, filming & photography, agriculture and insurance. There are clear benefits to their use for high risk work activities, both in reducing the exposure of employees to risk, and the speed with which drones can be deployed, such as for the inspection of damage on the exterior of a high rise building or off-shore platform.

Flying high? Surveying the health and safety implications of drones

As the use of drones becomes more common, we look at the health and safety implications, the responsibilities of businesses and operators, and their regulation.

Who regulates drone use?

The regulation of drone use is split between various organisations including the Civil Aviation Authority (CAA), Health and Safety Executive (HSE), Police and Air Accident Investigation Branch (AAIB).

  • CAA - responsible for the safe use of the unmanned vehicle "in flight[1]";
  • AAIB – responsible for the investigation of any accidents or serious incidents when "in flight";
  • HSE – responsible for health and safety at work when the drone is not "in flight"; and
  • Police – normally first line of action where used dangerously or as a nuisance.

The two key regulators for businesses when the drone is being used are therefore the CAA and HSE. The Memorandum of Understanding[2] between the HSE and CAA confirms the HSE's responsibility for work on the ground and the CAA's in flight. However, there is potential for this line to be become blurred; as drones become more common in the workplace, will further clarity be provided?

What will each regulator consider?

HSE

In respect of the HSE's on the ground work, this encompasses the regulation of employers' day-to-day health and safety duties towards employees and non-employees under the Health and Safety at Work Act 1974 and its associated regulations.

Whilst the technology is new, the same health and safety obligations apply when used at work:

  • Activities need to be risk assessed;
  • Appropriate equipment should be selected and maintained;
  • Those operating need to be trained in its safe use; and
  • That use will need to be monitored to ensure it is done safely.

The Provision and Use of Work Equipment Regulations 1998 ("PUWER") require employers to ensure:

  • equipment selected is suitable for its proposed use;
  • account is taken of the working conditions and any risks to health and safety; and
  • it is only used for operations, and in conditions, for which it is suitable[3].

To comply with this requirement the employer needs to consider the equipment, available information and the conditions it will be used in. For example the working environment for a drone being used to inspect an oil platform in the North Sea will be very different to photographing a wedding.

In particular, an employer should ensure:

  • The drone is inspected and maintained at suitable internals;
  • It is being used correctly through monitoring of use;
  • Consideration has been given to the operating environment and its impact on the durability of the equipment; and
  • Operators have been trained in its use. There are requirements from the CAA (see below), but businesses should give thought to whether, in light of the technology and environment, further training is necessary. That additional training may be undertaken internally or externally, but either way the onus is on the employer to ensure it has been done to the required standard. Periodic refresher training is sensible to ensure an employer protects itself in the event of an incident.

CAA

The CAA is primarily concerned with enforcing the requirements of the Air Navigation Order[4]. As far as businesses are concerned, this includes the following requirements:

  • To register, and label, any drone weighing 250g – 20kg (without fuel) with the Drone and Model Aircraft Registration and Education Service (DMARES). This requirement applies to those "responsible" for the drone which can place the obligation on the business;
  • The operator must pass a CAA theory test and obtain a Flyer ID;
  • The organisation or individual responsible for the management of the drone must register with the CAA and obtain an Operator ID;
  • To not endanger the safety of an aircraft[5], person or property either by the operation of the drone or by dropping anything from it;
  • To maintain line of sight;
  • Not to fly at more than 400 feet without authorisation;
  • Not to fly within 50m of people, buildings[6] or vehicles;
  • Not to fly within 150m of a crowd of 1000 people or more, or built up areas; and
  • Not to enter an airport's restricted airspace.

A failure to comply with these rules can result in the operator or pilot being prosecuted and fined (provided there are no injuries, otherwise imprisonable offences may be possible). There is also scope for the court to order the forfeiture of the drone.

GDPR

A final point for businesses to be aware of is the impact of the General Data Protection Regulation, if photographs and video are being recorded or stored and it is possible to identify persons.

Ready to take flight?

The use of drones by businesses is clearly beneficial in reducing exposure to risk, and increasing efficiency, in the workplace. Traditionally higher risk activities requiring considerable time to plan and prepare can be performed much more quickly and safely. However, their introduction, as with any new equipment or working practice, brings with it novel risks and liabilities, as well as how questions regarding how to effectively regulate their use. The Drone Bill 2017-19 had its first reading in Parliament back in January 2019, however has not progressed any further since then, and thus many of these issues remain unaddressed.

It will be interesting to see if the law can keep up with the emerging technology, but in the meantime businesses and operators should be aware of their responsibilities before deployment.

Author: Alan Kells, Senior Associate

If you would like to discuss any aspect of this article further, please get in touch with a member of our team at sheregulatory@clydeco.com   

 

 

[1] “…..in the case of an unmanned aircraft, [flight]takes place between the time the aircraft is ready to move with the purpose of flight until such time it comes to rest at the end of the flight and the primary propulsion system is shut down.”

[3] Regulation 4

[4] Air Navigation Order 2016 was amended by the Air Navigation (Amendment) Orders 2018 and 2019

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