UK Health and Safety Legal System

The legal background

As with all branches of UK law, health and safety law can be criminal or civil; and it can be defined common law or statue based.

Types of law

There are two types of law:

  1. Criminal law– enforces a code of conduct (normally to protect). It allows the state to punish where breaches have occurred.
  2. Civil law– enables an individual who has suffered harm to gain appropriate compensation or to seek an injunction to prevent harm (or further harm) from occurring.

Sources of law

There are two sources of law.  Both define codes against which behaviour can be judged.

  1. Common law– is not written down but is developed by the courts over time;
  2. Statute law– is written down in the form of acts and regulations. Failure to comply with statute law normally (but not always) constitutes a criminal offence but can also be used in civil actions as a basis for compensation unless such action is specifically disallowed.

Specific legislation requirements

Health and Safety at Work etc Act 1974 (HSWA)

Under the Act, employer’s duties include:

  • Protect health, safety and welfare of employees;
  • Provide and maintain safe systems of work;
  • Ensure safety in the use, handling, storage and transportation of articles and substances;
  • Provide information, supervision and training;
  • Provide safe places/environment for work, with safe access and egress;
  • Provide adequate welfare facilities and arrangements;
  • If five or more people are employed at any one time for a single undertaking – produce written health and safety policy;
  • Protect people not in their employment that may be affected by their operations;
  • Consult safety representatives and establish a safety committee when requested by two or more safety representatives;
  • Provide free of charge items required by statutory provisions.

Employees’ duties include:

  • Take reasonable care for themselves and others who might be affected by their acts or omissions;
  • Cooperate with their employer or other person so far as is necessary to enable them to comply with their own statutory duties and requirements;
  • Not intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare.

The ‘Six Pack’ Regulations

The ‘six pack’ regulations enact a number of European Union Directives.  The regulations are:

  • Management of Health and Safety at Work Regulations 1999 – MHSWR;
  • Workplace (Health, Safety and Welfare) regulations 1992 WHSWR;
  • Health and Safety (Display Screen Equipment) regulations 1992 – DSE;
  • Personal Protective Equipment at Work regulations 1992 – PPE;
  • Manual Handling Operations Regulations 1992 – MHOR;
  • Provision and Use of Work Equipment regulations 1998 – PUWER.

Management of Health and Safety at Work (MHSW) regulations 1999

Under these regulations employer’s duties include:

  • Carry out suitable and sufficient risk assessments and record significant findings;
  • Apply principles of prevention;
  • Carry out health surveillance (where appropriate);
  • Appoint competent persons;
  • Develop procedures where particular dangers may occur;
  • Provide comprehensive and relevant information to employees;
  • Where two or more employers share a workplace – employers must co-operate with each other;
  • Take employees capabilities into account and provide suitable training;
  • Assess risks for new and expectant mothers (including women of child bearing age) and take measures;
  • Protect young workers because of their lack of experience, awareness of risks and lack of maturity;

Employees’ duties include:

  • Use all work items in accordance with the training and instructions that they have been given;
  • Inform their employer (or a specified employee with health and safety responsibilities) of work situations that could present a serious and immediate danger, as well as any shortcomings that they might reasonably recognise in the existing arrangements for health and safety.

Workplace (Health, Safety and Welfare) Regulations 1992

These regulations cover a multitude of factors relating to the work location and environment.  They cover the following issues:

  • Maintenance of the workplace;
  • Ventilation;
  • Temperature;
  • Lighting;
  • Cleanliness;
  • Room dimensions and space (requirement for 11m3 of volume per person, using a maximum height of 3m in the calculation);
  • Workstations and seating;
  • Condition of floors and traffic routes;
  • Falls or falling objects;
  • Windows and translucent surfaces;
  • Windows, skylights and ventilation systems;
  • Ability to clean windows safely;
  • Organisation of traffic routes;
  • Doors and gates;
  • Escalators and moving walkways;
  • Sanitary conveniences;
  • Washing facilities;
  • Drinking water;
  • Accommodation for clothing;
  • Facilities for changing clothes;
  • Facilities to rest and eat meals.

The Health and Safety (Display Screen Equipment) Regulations 1992

These regulations apply to any habitual user of display screen equipment.  They require:

  • Risk assessment of workstations;
  • Work stations to comply with specific requirements including size and ability to adjust;
  • Rest breaks to be provided;
  • Software to be user friendly;
  • Eye tests and corrective eye wear (if required) must be provided;
  • Employees must be given appropriate information, instruction and training in how to use DSE safely.

Personal Protective Equipment at Work Regulations 1992

Where PPE is identified as necessary, after considering other control measures, these regulations require that:

  • PPE must be compatible with the task and user;
  • Its suitability must be assessed;
  • It is properly maintained, cleaned and replaced when required;
  • Suitable storage must be provided;
  • Employees must be provided with necessary information, instruction and training;
  • Employees are responsible for reporting loss or defects.

Manual Handling Operations Regulations 1992

Employers must avoid manual handling where possible and undertake risk assessments of all tasks that involve manual handling.

Employees must make full and proper use of all equipment provided to either avoid or assist with manual handling.

Provision and Use of Work Equipment Regulations 1998

These regulations apply to all tools and equipment.  They require:

  • Equipment to be suitable;
  • Properly maintained;
  • Inspections made and records kept;
  • Specific risk identified;
  • Information, instructions and training provided;
  • Appropriate guarding to be provided to keep people protected from dangerous parts and any other hazard created (e.g. ejected material);
  • Suitable and sufficient lighting;
  • It must be possible to maintain equipment safely;
  • Marking and warnings must be posted.

Employer’s liability compulsory insurance

Under the Employers’ Liability (Compulsory Insurance) Act 1969 all employers must have insurance to pay compensation to employees if they are injured or become ill as a result of their employment.

There are some exemptions for self-employed, family firms and public organizations and those financed by public money.

Reference – ‘Employers’ Liability (Compulsory Insurance) Act 1969 – a guide for employers’ available free at http://www.hse.gov.uk/pubns/hse40.pdf

Health and Safety Information for Employees Regulations 1989

Require employers to display a poster or distribute a leaflet telling employees what they need to know about health and safety.  These are available from HSE.  They cover:

  • Duties of employers and employees;
  • Situations when employers must consult with employees;
  • When and how employers and employees can obtain information about health and safety;
  • Situations when an employee can report problems with their employer directly to the enforcing authority.

Reference – ‘Health and safety law – What you should know’ available free at http://www.hse.gov.uk/pubns/law.pdf

Inspectors’ powers

The Health and Safety Executive and Local authority employ health and safety inspectors.  Their powers include:

  • Enter premises at any reasonable time or when it is suspected that there is a dangerous situation (may get assistance from police to make entry);
  • Order that premises or equipment be left undisturbed for the purpose of an investigation;
  • Undertake any necessary examinations or inspections;
  • Take measurements and photographs;
  • Seize articles and substances (and render harmless if imminent danger),
  • Take samples
  • Inspect or take copies of documents;
  • Require persons to answer questions and to sign declarations of the truth of their answers;
  • Take enforcement action.

Enforcement action

There are a number of options open to enforcing authorities for failure to implement safe systems of work and/or break of regulation.

They can:

  • Provide verbal advice
  • Issue formal written confirmation of advice or warning
  • Issue an improvement notice (with specified timescale)
  • Issue a prohibition notice
  • Prosecute in Magistrates Court for a breach of H&S legislation
  • Prosecute in Crown Court

Improvement notice

To serve an improvement notice, an inspector must be of the opinion that there is a breach of relevant statutory provisions, or that there has been a breach that is likely to be continued or repeated (e.g. a floor that has been poorly maintained in contravention of the requirements of the WHSWR 1992).

The notice will define what breach has occurred, what needs to be done and the timescale for action.  An appeal will suspend the notice until the appeal has been heard.

Prohibition notice

For a prohibition notice to be served, an inspector must be of the opinion that there is, or is likely to be, a risk of serious personal injury (e.g. a scaffold that has been poorly constructed and is therefore in an unsafe condition).  The serving of a prohibition notice requires a process or activity to be stopped and defines what needs to be done before it can resume.  Implementation of the notice can be delayed if there is an on-going process that needs to be completed before it can be made safe (e.g. fair ground ride with people on or chemical reaction).

An appeal will leave the notice in force whilst it is heard.

Breaches of HSWA

From January 2009 as a result of The Health and Safety (Offences) Act 2008 breaches of HSWA 1974 can lead to

  • £20k fines in lower courts for nearly all summary offences, unlimited fines in higher courts;
  • Imprisonment for nearly all offences – up to 12 months in Magistrates Courts and 2 years in the Crown Court.

The HSE have an enforcement policy to ensure prosecutions are only made if they are in the public interest and where one or more of the following circumstances apply:

  • Death has occurred as a result of a breach of the legislation;
  • There has been reckless disregard of health and safety requirements;
  • There have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;
  • False information has been supplied wilfully, or there has been intent to deceive in relation to a matter which gives rise to significant risk.

Corporate Manslaughter and Corporate Homicide Act 2007

This act means that companies and organisations can be found guilty of corporate manslaughter or homicide (in Scotland) if its activities are managed or organised by its senior managers in such a way that

  1. Causes a person’s death, and
  2. Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

The introduction of the act makes an organisation liable if a fatality results from the way in which its activities are managed or organised.  This approach is not confined to a particular level of management within an organisation.  The test considers how an activity was managed within the organisation as a whole.  However, it will not be possible to convict an organisation unless a substantial part of the organisation’s failure lay at a senior management level.

Corporate manslaughter is an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death.  Courts will look at management systems and practices across the organisation, and whether an adequate standard of care was applied to the fatal activity.  Juries will be required to consider the extent to which an organisation was in breach of health and safety requirements, and how serious those failings were.  They will also be able to consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches.

The threshold for the offence is gross negligence.  The way in which activities were managed or organised must have fallen far below what could reasonably have been expected.

The offence will be Corporate Manslaughter in England, Wales and Northern Ireland and Corporate Homicide in Scotland.

More information is available free from HSE at http://www.hse.gov.uk/corpmanslaughter/about.htm  and from the Ministry of Justice at  https://www.justice.gov.uk/downloads/legislation/bills-acts/circulars/moj/corporate-manslaughter-act-2007-circular-9-feb-08.pdf

Negligence

Negligence is a civil wrong (tort) involving unreasonably careless conduct (or a breach of the common law duty of care), resulting in loss, damage or injury.

To prove a case of negligence it is necessary to show

  1. A duty of care was owed by the employer (i.e. that the employee was acting in the course of his/her employment);
  2. The employer acted in breach of that duty by not doing everything that was reasonable to prevent foreseeable harm
  3. The breach led directly to the loss, damage or injury.

Defence to negligence may include:

  • There was no duty owed to the employee since the case referred to something which did not take place during the course of employment;
  • There was no breach in that what happened was not foreseeable and in the event everything reasonable had been done;
  • The loss, damage or injury was either non-existent or not caused by any breach;
  • The claimant voluntarily accepted the risk (volenti non fit injuria)
  • The case was out of time.

There is also case law for a “sole fault of claimant” defence (ICI vs. Shatwell).  This means where a person is harmed by an activity and that person was considered to be an ‘expert’ (it can be demonstrated they knew what they were doing) but they were not following best practices, even though they had been reminded of them by the employer, they cannot claim the employer was negligent.

There is also a partial defence of ‘contributory negligence.’

Legal terminology

Vicarious liability

Vicarious means to take place of another as a substitute.

An employer may have vicarious liability when it is being held liable for an action of an employee.  Two conditions are required for this to be the case:

  1. The employee was acting within the course of his employment;
  2. While doing so, negligently caused damage or injury to a third party.

Volenti non fit injuria

Means “to a willing person, no injury is done.”

A person who knowingly and willingly puts himself in danger cannot sue for any resulting injuries.

Tort

Derived from the Latin word tortuous which means wrong.

Tort is a body of the law which permits an injured person to recover compensation from the injuring party.  When one person injures another, either intentionally or by negligence, a court may award money damages to the injured party so that they will suffer the pain caused by their action.

Defending against a claim

There may be two forms of defence.  The first is related to the circumstances of an incident that resulted in harm.  In this case it may be possible to refer to:

  • A record in the accident book record,
  • Records on reporting forms (including RIDDOR if applicable)
  • Accident investigation report,
  • Statements made by witnesses or supervisors

The second side involves demonstrating that the employer had done everything reasonable to prevent the accident through compliance with statutory and common law duties.  Relevant documents might include:

  • The organisation’s health and safety policy;
  • Risk assessments
  • Written safe systems of work relating to the activity;
  • Training records;
  • Statutory examination records (as required by LOLER);
  • Maintenance records (PUWER and LOLER);
  • Inspection reports
  • Health and safety committee minutes;
  • Documents relating to previous accidents and corrective actions taken.

Information relating to the claimant (e.g. involvement in previous accidents, disciplinary records, etc) could also be relevant.

Health and Safety documentation

In the UK, different types of document relate to health and safety law.  Regulations lay down minimum legal standards.  Breaches of regulations constitute criminal offences that can lead to enforcement action (e.g. prosecution, imposition of fines).   Most health and safety regulations are made under the Health and Safety at Work etc Act by the Secretary of State after consultation with the Health and Safety Executive (HSE).  They often implement European Commission (EC) Directives that are aimed at protecting employees and others.

Approved Codes of Practice (ACOP) have quasi-legal status.  Duty holders must comply with them or be able to show that the chosen means of control are equally effective.  They are approved by the HSE with the consent of the Secretary of State and that their purpose is to provide practical interpretation of legal requirements in specific areas.  Although failure to comply with any provision of an ACOP is not in itself an offence, the failure may be cited in court in criminal proceedings as proof that there has been a contravention of the regulation to which the provision relates.

HSE guidance has no formal legal standing, is generally more informative and practical than an ACOP, and is intended to give advice on good practice.

By way of an example, one requirement of the Workplace (Health, Safety and Welfare) Regulations is that there shall be a reasonable working temperature.  The relevant ACOP states the minimum temperature will be 16 degrees Celsius unless physical work is involved, then its 13 degrees.  HSE guidance document HSG 194 (thermal comfort in the workplace) gives guidance on possible solutions to maintain the welfare of employees working in low temperatures.

Sometimes the regulations cannot be followed exactly (i.e. minimum temperature at work), so the ACOP shows you how to comply in other ways, such as supplying thermal clothing, boots, limiting time in cold areas, supply of a room to get warm.

Reference – ‘Health and safety regulation – a short guide’ available free at http://www.hse.gov.uk/pubns/hsc13.pdf – Note this document still refers to the Health and Safety Commission (HSC), which has now been merged with HSE.