Statutory duties are comprised in Acts passed by Parliament (e.g. Health and Safety at Work etc Act 1974) or regulations which are made by government ministers using powers given to them by virtue of Acts. The Act of Parliament is therefore the primary legislation; regulations made under Acts are secondary, subordinate delegated legislation. Delegated legislation relates to situations where the right to legislate has been delegated to another party. Parliament delegate’s power by an enabling Act which enables government ministers or local authorities to create regulations (statutory instruments) or byelaws. In terms of Health and Safety Law the Statutory Instruments or Regulations are more important. Under such powers of an enabling Act of Parliament, government ministers and public bodies (such as the Health and Safety Commission and Executive) are empowered to draft regulations which fall within the scope of their areas of responsibility. The guiding Act of Parliament (e.g. the Health and Safety at Work etc Act 1974) sets out a general framework and guiding parameters for the enacting of delegated legislation which brings into being particular rules and regulations within the general sphere of activity. Delegated legislation usually affects the public and companies more than the Acts of Parliament, however it is not widely publicised and the people it affects are expected to find out for themselves. In law, ignorance cannot be used as a defence.
Regulations can apply to employment conditions generally, for example the Noise at Work Regulations; they can control specific hazards in specific industries (such as the Construction (Health, Safety and Welfare) Regulations); and they can have the most general application, as in the case of Reporting of Injuries, Diseases and Dangerous Occurrences Regulations.
Approved Codes of Practice (ACoPs) can supplement Acts and Regulations, in order to give guidance on the general requirements which may be set out in the legislation (thus effectively enabling the legislation to be kept up to date by revising the code of practice rather than the law). The HSC has power to approve codes of practice of its own, or of others such as the British Standards Institution3. A failure on the part of any person to observe the provisions contained in an Approved Code of Practice does not, of itself, render that person liable to any criminal or civil proceedings, but in any criminal proceedings, if a person is alleged to have committed an offence concerning a matter in respect of which an Approved Code is in force, the provisions of that Code are admissible in evidence, and a failure to observe it constitutes proof of the breach of duty, or contravention of the regulation or statutory provision in question, unless the accused satisfies the court that he complied with the regulation of the law in some other equally effective manner. Approved Codes, therefore, are guides to good safety practice. If a person follows the requirements of the Codes it is unlikely that he will be successfully prosecuted for an offence. If he fails to follow the Code, he may be guilty of an offence unless he can show that he observed the specific legal requirements in some other way (HSWA, s.17)4.
The Commission and Executive frequently issue Guidance notes, sometimes alongside Codes and sometimes independently. Guidance notes contain practical advice and sound suggestions, and are frequently more informative than Codes. Although the Guidance notes have no legal standing, it is possible to use them as evidence of the state of knowledge at the time of issue. Due to their origin and the experience employed in their production, they are ‘persuasive’ in practice to the lower courts and useful in civil cases to establish reasonable standards prevailing in an industry. In Burgess v Thorn Consumer Electronics (Newhaven) Ltd it was held that if employers do not warn employees of the dangers referred to in the Guidance notes, they may be liable to employees for negligence, as the notes indirectly give rise to a duty of care. ACoPs and Guidance Notes can therefore be said to have a ‘quasi-legal’ status, rather like the Highway Code 3,4.
Health and Safety law contains different levels of duty, and there are three levels or types of duty imposed by statute, which allow different responses to hazards. These are: absolute duty, duty to do what is practicable, and duty to take steps that are reasonably practicable. Over the years, a body of case law has built up which gives guidance on the meaning of these duties in practice.
- Absolute Duty (also known as strict liability) – There are circumstances when the risk of injury is so high unless certain steps are taken, and in consequence Acts and regulations have recognised these by placing an absolute duty on the employer to take specific steps to control the hazard. The best-known example is probably the former Section 12 of the Factories Act 1961, which required ‘the fencing of every moving part of every prime mover’. The absolute nature of this duty was upheld by courts, even in circumstances where a machine has become practically or financially unusable because of the strict guarding requirement. Absolute requirements must be complied with whatever the practicalities of the situation or the economic burden.
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‘Practicable’ – Some regulations specify that steps must be taken ‘so far as is practicable’; for example Regulation 11(2)a of PUWER 98 requires the provision of ‘fixed guards enclosing any dangerous part or rotating stock bar where and to the extent that it is practicable to do so.’ ‘Practicable’ means something less than physically possible, and that measures must be possible in the light of current knowledge and invention3.
- ‘Reasonably Practicable’ – This term is contained in the main sections of HSWA 1974 and many important Regulations. It requires the risk to be weighed against the costs necessary to avert it (including time and trouble as well as financial cost). If, compared with the costs involved, the risk is small then the precautions need not be taken – it should be noted that such a comparison should be made before any incident has occurred. The burden of proof, however, rests on the person with the duty (usually the employer) – they must prove why something was not reasonably practicable at a particular point in time. The duty holder’s ability to meet the cost is not a factor to be taken into account.
In effect, considering what is ‘reasonably practicable’ requires that a risk assessment be carried out. The existence of a well-documented and carefully considered risk assessment would go a long way towards supporting a case on what was and was not reasonably practicable. Neither risks nor costs remain the same forever and what is practicable or reasonably practicable will change with time – hence the need to keep risk assessments up to date5.
Common law has evolved over hundreds of years as a result of the decisions of courts and judges. Common principals or accepted standards fill the gaps where statute law has not supplied specific requirements. The accumulation of common law cases has resulted in a system of precedents, or decisions in previous cases, which are binding on future similar cases unless overruled by a higher court or by statute.
A civil action can be initiated by an employee who has suffered injury or damage to health caused by their work. This may be based upon the law of negligence, i.e. where the employer has been in breach of the duty of care which he owes to the employee. Being part of the common law, the law of negligence has evolved, and continues to evolve, by virtue of the decisions of the courts – Parliament has had virtually no role to play in its development.
Civil actions may also be brought on the grounds of breach of statutory duty – it should be noted, however, that HSWA 1974 and most of the provisions in the Management of Health and Safety at Work Regulations 1999 do not confer a right of civil action, although the statutory duties owed by employers under HSWA 1974 have their equivalent obligations in common law.
Every member of our society is under a ‘duty of care’, i.e. to take reasonable care to avoid acts or omissions which they can reasonably foresee are likely to injure their neighbour. What is reasonable depends on the circumstances.
Employers, such as ourselves, owe a duty of care not only to employees but also to such people as contractors, visitors, customers, and people on neighbouring property. In the case of the duty of care owed by employers to employees, it includes the duty to provide safe premises, a safe system of work, safe plant, equipment and tools; and safe fellow workers5. Ensuring the employee’s place of work is safe extends not just to tangible physical things like floors, doors, windows and means of access and egress, but also to environmental conditions like temperature and noise. An employer’s duty is to ensure the employee is provided with such equipment, plant and materials as are adequate for the safe performance of the job and to introduce a system of inspection and maintenance6.
Section 2(3) of the Health and Safety at Work etc. Act 1974 requires that employers prepare in writing a statement of their general policy with respect to the health and safety at work of their employees; and the organisation and arrangements for carrying out that policy. It also requires that the statement be brought to he notice of all employees.
As an employer we are required under the Employers’ Liability (Compulsory Insurance) Act 1969 to take out and maintain an insurance policy with an authorised insurer against liability for bodily injury and disease sustained by our employees and arising out of and in the course of their employment. The policy must provide a cover of at least £5 million. The insurance company will issue a certificate of insurance and this must be displayed at each place of business for the information of employees. An inspector can request to see the certificate and also the policy itself.
As an employer we are liable to persons injured by the wrongful acts of our employees, if such acts are committed in the course of their employment. Thus if an employee’s careless driving of a forklift truck injures another employee, then as an employer we are likely to be liable. This is known as vicarious liability (that we are legally liable for the negligence of our employees which they do in the course of their employment duties). There is no vicarious liability if the act is not committed in the course of employment – we are not likely to be held liable if one employee assaults another5.
In conclusion, as an employer we need to be aware that as well as legislation that applies to all employers, there may also be specific legislation which applies to our company by virtue of the type of work activity being conducted.
We must be aware of any EC Regulations and Directives that may apply to us and ensure we have complied with them. As stated before as a public utility all directives will apply to us. The national Health and Safety Legislation which applies to all employers is:
- The Health and Safety at Work etc Act 1974
- The Management of Health and Safety at Work Regulations
- The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations
We must then examine our work activity and determine which other regulations we need to follow, and ensure that we adhere to the practices set out in any ACoP’s and Guidance Notes that accompany the Regulations. We must also ensure that we have carried out the adequate Risk Assessments to enable us to prove that the measures we have taken are ‘practicable’ or reasonably practicable’ as the burden of proof rests with ourselves (the employer). As detailed above we have a duty of care to provide a safe working environment and safe plant and equipment. Furthermore, we require a current Employers Liability Insurance, which must be displayed. Our Health and Safety Policy should be displayed in an area where all employees, contractor, visitors etc can easily view it (e.g. reception area). This policy should be revised every two years, or if there are any major changes to the working practices.
It is my view that if we keep up to date with changes in any EC or UK legislation, as detailed in this report; and comply with HSE’s guidance and advice that we should be able to meet our health and safety requirements.
1 White & Willock, The Scottish Law System
2 Hendry & Ford, Redgraves Health and Safety, Butterworths, Third Edition
3 Allan St John Holt, Principals of Health and Safety at Work, IOSH Services, Fifth Edition
4 Norman Selwyn, The Law of Health and Safety at work 1996/97, Croner, Fifth Edition
5 Tolley’s. Health and Safety at Work Handbook 2002, Butterworths, Fourteenth Edition
6 Craig & Miller, An introduction to the Law of Health and Safety at work in Scotland, W.Green, Second Edition