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.
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.
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.
Under the Act, employer’s duties include:
Employees’ duties include:
The ‘six pack’ regulations enact a number of European Union Directives. The regulations are:
Under these regulations employer’s duties include:
Employees’ duties include:
These regulations cover a multitude of factors relating to the work location and environment. They cover the following issues:
These regulations apply to any habitual user of display screen equipment. They require:
Where PPE is identified as necessary, after considering other control measures, these regulations require that:
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.
These regulations apply to all tools and equipment. They require:
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
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:
Reference – ‘Health and safety law – What you should know’ available free at http://www.hse.gov.uk/pubns/law.pdf
The Health and Safety Executive and Local authority employ health and safety inspectors. Their powers include:
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:
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.
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.
From January 2009 as a result of The Health and Safety (Offences) Act 2008 breaches of HSWA 1974 can lead to
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:
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 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 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.’
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.
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.
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.
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:
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:
Information relating to the claimant (e.g. involvement in previous accidents, disciplinary records, etc) could also be relevant.
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.
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