Explain the duties relating to health and safety in the workplace

University Degree Business and Administrative studies

Law for Business Summative Assessment A B Ritchie

Under the Employers Liability (Compulsory Insurance) Act 1969, every employer carrying on a business must maintain an approved policy with authorised insurers covering any bodily injury or disease of employees which might arise out of or in the course of their employment

The principle Act governing Health & Safety in the workplace is The Health and Safety at Work Act 1974 which provides for a safe place at work governing all Employers, Employees, Contract Workers, Visitors and Maintenance Contracts.

The Commission

This body has a chairman and not less than six, nor more than nine, other members, all appointed by the Secretary of State. The duties of the Commission are to promote the health and safety legislation, to carry out research, to publish information, and to prepare proposals for regulations and codes of practice to be introduced under the Act

The enforcing body is The Health & Safety Executive, Whose officers have wide ranging powers. Officers may serve improvement or prohibitive notices which have far reaching consequences upon the offending organisation

Breaching Health & Safety Law can be both a criminal and civil offence and upon summary conviction substantial fines may be payable and under certain circumstances

Imprisonment

The general statutory duties of the HSAW act

The Act imposes general duties on a number of different persons or categories of person. Duties are imposed on; employers, manufacturers, designers, suppliers, the self employed, controllers of premises and employees. Most of these duties are qualified in that the duty only extends to what is “reasonably practicable” The effect of the qualification is to allow the person on whom the duty is placed to weigh up the seriousness of a risk and the likelihood of injury against the difficulty and expense of removing it. Where difficulty and cost are high and a careful assessment shows that the risk of injury is significant, then it may be that no action need be taken. However, if it is the case that the risk of injury or loss of life is high, then action must be taken whatever the cost and no allowance is made for the fact that it is a small organisation or that the business is struggling to survive

It is for the person alleging that he has done” that which is reasonably practicable” to establish it. This is unusual, as normally in criminal prosecutions the procurator fiscal has to prove his case beyond reasonable doubt

General duties of employers

Section 2(1) imposes a general duty on an employer to ensure as far as is reasonably practicable, the health, safety and welfare at work of all his employees

Section 2(2)

Then continues by specifying five particular duties which spell out the general duty in detail

To provide and maintain plant and systems at work that are, so far as is reasonably practicable, safe and without risk to health.
Arrangements must be made to ensure so far as is reasonably practicable the safety and absence of risk to health in the use, storage and transport of articles and substances
The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of all his employees
So far as is reasonably practicable as regards any place of work under the employers control, he must ensure its maintenance in a condition that is safe and without risk to health and provide a safe means of access and exit
The provision and maintenance of a working environment that is so far as is reasonably practicable, safe, without risks to health and adequate as regards facilities and arrangements for the welfare of employees at work

Note; It can be seen that the above statutory duties are very similar to those owed by an employer to an employee under common law but they differ n that the duties under s2 are enforced only by criminal sanctions

Section 2(3) States that every employer (unless he has five employees) shall prepare, revise if necessary, and bring to the notice of his employees a written statement of his general policy with respect to the health and safety of his employees and the arrangements in force for the time being for carrying out that policy

Section 2(6) states that it shall be the duty of every employer to consult any safety representatives appointed by recognised trade unions

Section 2(7) states that if requested by the safety representatives, the employer has a duty to establish a safety committee

Section 9 forbids employers to levy any charge on employees in respect of anything done or provided in pursuance of any specified requirement under the statutory provisions

General duties owed by employers and the self-employed to non-employees

Section 3(1) states that every employer is under a duty to conduct his business in such a way so far as is reasonably practicable that non-employees are not exposed to risks to their health and safety (this will include the general public, sub-contractors, visitors and even students on the college campus

Section 3(2) imposes a similar duty on self-employed persons in respect of them-selves and other non- employees

In Regina v Swan Hunter Shipbuilders Ltd (1981) the employers distributed a booklet to their employees giving practical safety rules for the use of oxygen equipment, in particular warning of the dangers of oxygen in confined spaces. The booklet was not given to the employees of their sub-contractor, except on request. A bad fire broke out on a ship because an employee of the sub- contractor left on an oxygen hose, resulting in the death of eight workmen. Swan Hunter were prosecuted and convicted of breach of ss 2(2)a,2(2)c and 3(1)

In R v Associated Octel Ltd(1994) A fire started when a chemical leak ignited, engulfing the plant in flames. Although no-one was injured the fire was classified by the HSE as a “major incident” which endangered the safety of the employees, the neighbouring residents and the emergency services. The company admitted that they had failed to maintain plant and systems of work which were safe and without risk to health. The company was found guilty of breaches of ss 2 and 3 of the HSAW Act and fined £75000 for each breach

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In R v British Steel Plc (1995) BS engaged sub-contractors to reposition a platform. The sub-contractors provided two men for the task and a BS engineer was to supervise the work. One of the men was fatally injured. BS had assigned an engineer to supervise but there was conflicting evidence as to whether he had done this properly. BS was found guilty of a breach of s 3(1) of the HSAW Act . They tried to argue that if the engineer was at fault then they should not be liable for his fault and that they had taken such care as is reasonably practicable. The Court of Appeal dismissed this view and said corporate employers could not avoid criminal liability where the Potential harmful event is committed by a person who is not “directing the mind of the company”.

General duties of controllers of premises

Section 4 imposes a duty on people who have control over non-domestic premises which are used by non-employees who work there or who use plant and the substances provided there. The duty is to take such measures as far as is reasonably practicable that the premises or any plant or substances on the premises are safe and without risk to health. Section 3 and 4 could be regarded as the criminal counterpart of the Occupiers Liability(Scotland) Act 1960 and s 4 would apply to premises like a car wash, a coin operated laundrette, a library or a school laboratory

Section 5 imposed another duty on controllers of any premises of a class prescribed to use the best practicable means for preventing the emission into the atmosphere of noxious and offensive substances and for rendering them harmless. This section was repealed in April 1996, and is now covered by the Environmental Protection Act 1990

General duties of designers, manufacturers, importers and suppliers

Section 6(1) states three duties for the above persons regarding articles for use at work

to ensure, so far as is reasonably practicable, that the article is so designed and constructed as to be safe and without risks to health when properly used
To carry out, or arrange for the carrying out, of tests and examinations of the articles
To ensure that there will be available, with articles for use at work, adequate information about their use and any tests that have been done on them

General duties of employees

Section 7 imposes two main duties on the employee

He must take reasonable care for the health and safety of himself and of others who may be affected by his acts of omissions at work Thus, an employee who refuses to wear his safety harness or helmet, or who causes injury to another through his negligence or “mucking about” is liable to prosecution under the Act
He must co-operate with his employer or any other person to enable them to carry out their statutory duty

Enforcement of the Act

A breach of any of the general duties under the Act or of any of the health and safety regulations can be dealt with in two ways

new powers were given to inspectors which include the power to issue enforcement notices
a prosecution can take place as breach of any of the duties under the Act amounts to a criminal offence

In Scotland, an inspector never brings a prosecution himself as happens in England. In Scotland, the inspector would collect the evidence and pass it to the Procurator Fiscal, who, after consulting the Crown Office, would decide whether to bring criminal proceedings. Apart from breach of the general duties, there are numerous other offences specified by the Act. For example , contravening any of the regulations made under the Act or obstructing an inspector. The maximum penalty for breaches of ss 2-6 of the HSAW Act, and for breaches of enforcement notices, under summary procedure, has increased to £20000, and the sheriff can also impose a prison sentence of up to six months for breaches of enforcement notices. If a person is found guilty of an offence by a sheriff under solemn procedure, he could be fined an unlimited amount and/ or imprisoned for up to three years

Improvement notice

If an inspector is of an opinion that a person (a) is contravening a relevant statutory provision, 2 or (b) has contravened one or more provisions in circumstances that make it likely that the contravention will continue or be repeated, then the inspector may serve an improvement notice stating that he is of that opinion, the relevant provisions which he thinks has been contravened, why he is of that opinion, and requiring that person to remedy the matter within a certain stated period (the period must not be less than 21 days). An appeal to an industrial tribunal can be made against such a notice within 21 days). The lodging of an appeal will suspend the notice until the appeal is heard. In February 1996 the HSC issued an enforcement policy statement that businesses have a right of representation before the formal issuing of an n improvement notice. Before an improvement notice can be issued the business has a right to request a written explanation of the contravention, an outline of what needs to be done and a time scale for the work. The business has a two-week period from receiving the written notice during which it can make representations to change or cancel the notice. The proposed notice will then be reconsidered with regard to the representations. If no representations are received then the improvement notice will be issued

Prohibition notice

If an inspector is of the opinion that an activity involves a risk of serious injury, then he may serve a prohibition notice. This notice will state(a) that this is his opinion; (b) the matter which is giving rise to this risk of injury; (c) which statutory provision is being contravened; and will order (d) that certain activities should not be carried out until the matters specified in the notice have been remedied

The notice can take immediate effect or it can be a deferred prohibition notice, taking effect at the end of a period specified in the notice. An appeal against a prohibition notice can be lodged within 21 days. Such an appeal does not automatically suspend the notice. The employer has to apply for this suspension and, if he fails, the notice will have effect, either immediately or within the period stated. Since this could seriously affect the employers business, appeals are normally heard very quickly. There is no right to make representations before the issuing of a prohibition notice

In Associated dairies v Hartley 1979 the appellants, who used roller trucks, provided safety footwear for employees at cost price. One day, an employee’s foot was injured. An inspector issued an improvement notice requiring the employers to provide suitable footwear free of charge. There was statutory requirement to do this-and remember that an obligation under s 2 for providing for the safety of employees is qualified-so far as is reasonably practicable. In deciding whether the inspector’s requirement was reasonably practicable, the tribunal had to balance the trouble, time and expense of providing free boots against the likelihood of such an accident happening again. In this case, it was shown that the likelihood of such an accident happening again was remote. The tribunal allowed the appeal. They felt that the employer’s arrangement of providing boots at cost price was satisfactory

The health and safety (enforcing authority) regulations 1977

These regulations, amended in 1989, stated that certain premises were to be the responsibility of the HSE and some of the responsibility of the local authorities ( that is the local council through the Environmental Health Officers(EHO). EHO’s have the same powers as HSE inspectors. However, the enforcement in a particular case can be transferred from one body to the other with the permission of the HSC. Most offices, shops, restaurants, warehouses and hotels are assigned to the local authorities, while most industrial business premises are the responsibility of the HSE inspectors who also inspect all premises occupied or controlled by the local authority and the crown.

SAFETY REPRESENTATIVES

The Health and Safety at Work Act s 2, through the Safety Representatives and Safety Committees Regulations 1977, provides for the appointment by recognised independent trade unions of safety representatives from among the employees. It will then be the duty of the employer to consult with such representatives about health and safety matters at work. The safety representatives’ functions are:

To investigate potential hazards and dangerous occurrences at the work place and to examine the causes of accidents there.
To investigate complaints by any employee they represent relating to that employee’s health, safety and welfare at work.
To make representations to the employer on matters of health, safety and welfare.
To carry out inspections if they give the employer written notice. Inspections can only be made at three-month intervals, unless the employer agrees to more frequent inspections; or where there has been a substantial change in the working conditions; or if there has been a notifiable accident; or if there has been a notifiable illness contracted at the workplace.
To represent the employees in consultation with the various inspectors.
To receive information from inspectors.
To attend the meetings of safety committees.

The employer’s duty to consult

The Management of Health and Safety at Work Regulations 1992 clarifies the employer’s duty to consult with safety representatives. Every employer shall consult safety representatives in good time with regard to the following:

The introduction of any measure at the workplace which may substantially affect the health and safety of the employees.
The employer’s arrangements for appointment are, as the case may be, nominating competent persons to assist him in health and safety matters as required by the regulations.
Ay health and safety information he is required to provide to the employees.
The planning and organisation of any health and safety training he is required to provide the employees.
The health and safety consequences for the employees of the introduction of new technologies into the workplace.

Appointment of safety representatives

Only recognised independent trade unions have the legal right to appoint safety representatives, although there is nothing to stop an employer allowing ‘safety reps’ in a non-unionised situation. Neither the regulations nor the code of practice specify how many should be appointed. However, the guidance notes suggest that the criteria to be adopted should take into account the following factors: the total number of employees and their occupations; the size of the workplace; the shift systems; the type of work done; and the degree and character of any inherent dangers. A safety representative is entitled to have time off with pay during working hours to perform his functions.

Safety committees

The regulations state that an employer must establish a safety committee if requested to do so in writing by two safety representatives. He must consult with them and the trade union on this matter, but the actual composition of the committee can be decided by the employer. However, he must establish it within three months of the request.

The SRSC Regulations 1977 restricted the presence of statutory safety representatives and committees onshore to workplaces with a recognised independent trade union. This is not acceptable because of the decline in trade union membership and also because the UK has not fully implemented the EC Framework Directive’s requirements that information, consultation and participation rights on Directive’s requirements that information, consultation and participation right on health and safety be given to all workers regardless of whether they are covered by a recognised trade union. The HSE has drawn up proposals for new regulations and the rights granted to safety representatives will be extended to non-unionised workers. The employers have a choice of consulting their employees directly or with employee representatives. The new regulations (The Health and Safety Consultation with Employees Regulations) came into force on 1 October 1996.

Protection against victimisation and dismissal

The Employment Rights Act 1996 s 44 gives rights to employees, regardless of their length of service, to protect them from being either victimised because of action they have taken or failed to take in connection with health and safety matters. In either case a complaint may be brought to an industrial tribunal within three months. If the tribunal finds that the employee has been victimised they may make an award of compensation, the amount being what the tribunal thinks is just and equitable in all circumstances

The protection is only given to the employee in the following circumstances

When he has been designated by the employer to carry out activities in connection with preventing or reducing risks to the health and safety of employees at work and he carried out or proposed to carry out such activities
When he is a safety representative or a member of a safety committee and he performed or proposed to perform any functions as such a representative or as a member of such a committee
When he is an employee at a place where there is no safety representative or committee or if there is, when it was not reasonably practicable for the employee to raise the matter with them and he brought to the employer’s attention by reasonable means the circumstances connected to his work which he believed were harmful to health and safety
When he has left or proposes to leave his place of work in circumstances of serious and imminent danger which he could have not reasonably have been expected to avert
When in circumstances of serious and imminent danger, he took or proposed to take appropriate steps to protect himself or other employees from the danger. Whether the steps in this case were appropriate shall be judged by taking into account all the circumstances, including in particular his knowledge and the facilities and advice available to him at this time. However, the employee is not protected if the employer shows that is was negligent for the employee to take these steps and that a reasonable employer might have treated him as the employer did

In Barton v Wandsworth Council an industrial tribunal upheld the claim by an ambulance driver that he had been unlawfully disciplined in contravention of s 44. He had complained about the competence of some of his fellow workers who had been recruited as escorts, employed to assist patients with mental or physical disabilities

The ERA Act 1996 s 100 gives protection for employees who are dismissed in the same circumstances

OFFENCES DUE TO THE FAULT OF ANOTHER

Section 36

When the commission of an offence is due to the act or default of another, that other person may be charged with the offence as well

Section 37

Where an offence committed by a corporate body is proved to have been committed with the consent or connivance, or due to any neglect of any director, manager , secretary or other similar officer of the corporate body, then, he, as well as the corporate body, shall be guilty of that offence

Also note that ss 7 and 8 of the HSAW Act place general duties on all employees to take reasonable care for their own and other persons safety. Junior managers might be prosecuted under section 36 along with possibly another employee. Senior officers who are considered to embody the corporate body itself may not be regarded as “some other person” under s 36. That is why s 37 is there, to provide a means by which offences committed by a body corporate can be prosecuted. Armour v Skeen is one of the few successful prosecutions under this section

In a decision of the Court of Appeal In R v Boal (1992) the manager of a bookshop, Mr Boal, was found not to be “a manager or other similar officer of the body corporate”. Mr Boal, as manager of the bookshop, had only responsibility for the day to day running of the shop and did not enjoy any sort of governing role inrespect of the affairs of the company. The word “manager” in s 37 must be regarded as a person who is managing “the whole affairs of the company and was entrusted with power to transact the whole of the affairs of the company”.

In Armour v skeen (1977) Strathclyde Regional Council and its Director of Roads were both prosecuted for breach of safety regulations and lack of a safe system of working. As a result of these breaches, an employee of the Council was killed while painting a bridge over the river Clyde. The director was found guilty of neglect in that he failed to have a good safety policy for his department and had not provided information to his subordinates, Nor training, nor instruction in safe working practices. He was convicted- the offences were committed by the Council, but under s 37 were due to his neglect.

Section 8 states that no person (which includes employees) shall intentionally or recklessly misuse anything provided in the interests of health, safety or welfare in pursuance of the relevant statutory provisions

All the following Acts and Regulations apply to your workplace

The Health & Safety at Work Etc. Act 1974
The Fire Precautions Act 1971
The Electricity at Work Regulations 1989
The Fire Precautions(Workplace)(Amendment Regulations 1999
Management of Health & Safety at Work Regulations 1999
Display Screen Equipment Regulations 1992
Health & Safety First Aid Regulations 1981
R. I. D. D. O. R. Regulations 1995
Manual Handling Operations 1992
Control of Asbestos at Work Regulations 1999
Safety Signs and Signal Regulations 1996
Lifting Operations and Lifting Equipment Regulations 1998
Personal Protective Equipment at Work Regulations
Provision And use of Work Equipment Regulations 1998
Workplace ( Health Safety & Welfare) Regulations 1992
Control of Substances Hazardous to Health Regulations 1999
Food Safety ( General Food Hygiene) Regulations 1995
New and Expectant Mothers at Work Regulations 1994 (and more recently fathers)
Young Persons at Work Regulations 1994
Disabilities Discrimination Act 1995
Health & Safety ( Consultation with Employees) Regulations 1996

The EC Directive on the Improvements in the Safety and Health at Work of Pregnant Workers, Workers who have recently given birth and Workers who are Breastfeeding

The directive has now been implemented by the Employment Rights Act 1996 and the Management of Health and Safety at Work Regulations 1992

The directive requires Employers to consider the health and safety of pregnant workers and those who have recently given birth and to assess the nature, degree and duration of exposure for all their work activities which are likely to involve a specific risk of exposure to certain agents, processes or working conditions.

If an assessment reveals a risk, the employer must decide on appropriate measures and communicate details of these and the assessment to the employees. The employers must try to avoid these women being exposed to any risk by either adjusting their working conditions or hours or moving them to another job. If this is not possible they should be granted leave in accordance with national legislation. Women who are pregnant or have recently given birth must not be obliged to perform night work if they submit a medical certificate stating that they must not do such work on health and safety grounds. The employer should then try tio shift them to day work and if this is not possible give them leave.

Codes of Practice

The HSC has the power to approve codes of practice which will offer practical guidance in understanding the general duties under the Act or Regulations. Provided these codes have been drafted and published in accordance with the proper procedures under the HSAWA s 16 they will have the special status of Approved Codes of Practice. Failure by anyone to observe the provisions of an approved code of practice is not by itself unlawful, but failure to observe a code can be admissible as evidence that ther has been a breach of one of the duties under the Act or a breach of Regulations. Codes of practice are flexible in that they can be revised and amended as necessary and give good practical guidance on health and safety matters

Special provisions regarding the use of approved codes of practice in criminal proceedings

The HSAWA s 17 provides that in criminal proceedings where a party is alleged to be in breach of ss 2-7 of the Act or of any of the relevant statutory provisions or regulations and there is an approved code of practice covering the provision and it was proved that there was a failure by the party to observe any provision of the relevant code of practice then the breach shall be taken as proved unless the court is satisfied that the requirement or provision had been complied with by some other means

The above rule only applies to approved codes of practice issued by the HSC and not to guidance notes on how to comply with the legislation issued by the HSC

Legal Responsibilities in the workplace

Explain why Health and Safety has been heavily influenced by European legislation

The statutory instruments known as the “six pack” came into force in Britain in 1992. These safety regulations implemented key European directives on workplace health and safety

The regulations are:

The Management of Health and Safety at Work Regulations 1999
Safe Use of Work Equipment, Provision and Use of Work Equipment Regulations (1998)
Manual Handling Operations Regulations 1992
Workplace(Health, Safety and Welfare) Regulations 1992
Personal Protective Equipment at Work Regulations
The Health and Safety (Display Screen Equipment) Regulations 1992

As UK Health and Safety Regulations far exceeded the regulations of our European brothers most of the UK regulations were incorporated into the EU’s Health and Safety Regulations

If EU and UK Regulations come into conflict the Regulation that has the highest degree of excess takes precedence because of the Treaty of Accession (Treaty of Rome)

Eg British Law says avoir du poinds (lbs and ounces) are legal. But is overridden by EU law which states that all weights must be metric. Because this law had not been incorporated into British law a trader thought he could continue to trade in lbs and ounces. The British Council took the trader to court in order to force him to trade in metric weights. The trader lost the case and is now happily selling his bananas by the kilo

EU Laws that have been incorporated into British Law can now be heard in British Courts and don’t have to go to EU Courts

If Law does no exist in EU law but exists in UK law the Health and Safety at Work etc Act 1974 still stands good

Eg The Law states that if an employee does not sign an agreement with his employer he must adhere to the Working Time Directive which states that he must be willing to work 48 hrs a week. An employee can have a contract with employer stating hours he is willing to work and if (concensus in idim ) is reached this contract takes precedence over Working Time Directive

Another example is that an employer must have all employees on night-shift duties given a medical to ensure they are fit for the added strain of these duties. Although conversely for those employees on rotating shift work this is not necessary under law (although this type of work is far more stressful?)

These are examples of purely british laws

Explain the duties relating to health and safety in the workplace

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