Legal Requirement to Manage Health and Safety and Key Terminology
For a company that has 5 or more employees, there is a legal requirement to have a documented Health and Safety policy, as prescribed under the Health and Safety at Work Act (1974). Within the act it states:
“Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees.”
This statement is built upon in the Management of Health and Safety at Work Regulations (1999), in which it explicitly gives instruction for the implementation of the Health and Safety policy. It states under Regulation 5:
“(1) Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.
(2) Where the employer employs five or more employees, he shall record the arrangements referred to in paragraph (1).”
These statements give express instructions that an employer must manage the health and safety of their workplace, outlining the principles of a management review process of a policy. This involves the Planning, Organisation, Control, Monitoring and Review of arrangements. This is the fundamental basis for many Health and Safety management models, including HSG65 and ISO 18001.Note, the use of the management terms ‘planning’, ‘organisation’, ‘control’, ‘monitoring’ and ‘review’. You will see these used in the health and safety management models we look at later.
As part of this management process, there is a requirement under Regulation 3, of the Management of Health and Safety at Work Regulations (1999) to make an assessment of the risks that an employee faces. It states:
“(1) Every employer shall make a suitable and sufficient assessment of—
(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.
(2) Every self-employed person shall make a suitable and sufficient assessment of—
(a) the risks to his own health and safety to which he is exposed whilst he is at work; and
(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, …”
So from this it is clear to see that not only is an employer responsible for undertaking an assessment of risks, but also the self-employed. Further to this they are not only responsible for managing the risks posed to their employees, but also risks to any person that might be affected by their undertakings. These provisions are the basis for performing comprehensive risk assessments.
It is therefore necessary to understand key terminology associated with risk assessments. These being Hazards, Risks and Dangers.
The word hazard is often confused with risk, but in Health and Safety they have clear differences. A hazard is any potential source of damage, harm, or adverse health effect, with harm meaning physical injury or damage to health. In short, a hazard is the potential for harm or an adverse. A knife is a hazard, with the potential harm being a cut/laceration. Workplace bullying is a hazard, with the harm being anxiety, fear and/or depression.
Risk is the likelihood that an event will take place, so in the case of health and safety, the probability that a harm form a hazard is realised. So when we look at risk in terms of a risk assessment, it is the computation of the likelihood that an event will take place and the severity of the harm it may potentially cause.
Although the word danger is not used within risk assessments themselves, it is nonetheless important to understand what it means. It is something that causes an immediate peril, with an indication that there is an immediate liability of harm coming to fruition.
The Management of Health and Safety at Work Regulations (1999), under Regulation 7 also give a legal requirement an employer to have access to competent person to assist in delivering their health and safety duties.
“(1) Every employer shall, subject to paragraphs (6) and (7) appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997.
(2) Where an employer appoints persons in accordance with paragraph (1), he shall make arrangements for ensuring adequate co-operation between them.
(3) The employer shall ensure that the number of persons appointed under paragraph (1), the time available for them to fulfil their functions and the means at their disposal are adequate having regard to the size of his undertaking, the risks to which his employees are exposed and the distribution of those risks throughout the undertaking.”
Under this regulation it also gives a definition of whom is considered a competent person. It states:
“(5) A person shall be regarded as competent for the purposes of paragraph (1) and (8) where he has sufficient training and experience or knowledge and other qualities to enable him properly to assist in undertaking the measures referred to in paragraph (1).”
Sources of Health and Safety Law
UK law is developed through two routes, common law and statute law, as such Health and Safety law is derived from these two sources.
Common law is based upon judicial precedent, which has its decisions based on customs and practice. Hence, a decision made in a former case of a similar nature is binding on all subsequent similar cases. Common law can also be referred to as case law, due to its development through judicial precedent. The principle and doctrines from these cases are recorded in law reports, in which the interpretation of legislation and/or case is presented.
The process is self-endorsing by nature. Each case brought is concluded by a judgement which comprises of the following components, ratio decidendi (the rational for the decision) and obiter dicta (words said by the way).
Ratio deidendi, is the points in a case that determine the judgement or the principle that the case establishes, setting out the facts and the legal issues that surround them. This part of a judgement is binding on courts lower or later in jurisdiction. If a case is classified as having a binding decision or precedent, it means that the decision made becomes binding in a subsequent case of similar facts.
Obiter dicta, generally refers to passing comment which are not based in the facts of the case under review, but are used as a persuasive argument. These statements are not critical to the decision made, but do form part of the courts body of opinion. These are often referred to as persuasive authorities.
Precedents themselves can be classified as authoritative or persuasive. Authoritative precedent is a judgement made by higher courts that bind the lower courts. Persuasive precedent is a judgment which is not binding upon a court, but, a judge may choose to take them into consideration. These can be court judgments made on similar subjects within Common Wealth countries.
Statute laws are those generated by parliament, through government ministers or by bodies such as the Privy Council and local authorities; they are embodied as acts of parliament (Act). Statutes succeed all other forms of law and can only me modified, amended or revoked by parliament. A Statute codifies certain rules and as such should be written in such a way that they are clear and leave little ambiguity. But, with all law, there is always room for interpretation. As such, statute law can be interpreted by judges, making case law judgments; setting further precedents.
As parliament has limited time and/or expertise, once an Act is passed it is often brought into force through Statutory Instruments (SIs). Under an SI an act can be altered without Parliament having to pass a new Act. SIs often confer powers to Ministers to make more detailed orders, rules or regulations by means of statutory instruments. An Act will often contain a broad framework and statutory instruments are used to provide the necessary detail that would be too complex to include in the Act itself. A form of SI is Regulation.
Under the Health and Safety at Work Act (1974) a number of regulations have been formed; these include but are not limited to:
Management of Health and Safety at Work Regulations 1999: require employers to carry out risk assessments, make arrangements to implement necessary measures, appoint competent people and arrange for appropriate information and training.
Workplace (Health, Safety and Welfare) Regulations 1992: cover a wide range of basic health, safety and welfare issues such as ventilation, heating, lighting, workstations, seating and welfare facilities.
Health and Safety (Display Screen Equipment) Regulations 1992: set out requirements for work with Visual Display Units (VDUs).
Personal Protective Equipment at Work Regulations 1992: require employers to provide appropriate protective clothing and equipment for their employees.
Provision and Use of Work Equipment Regulations 1998: require that equipment provided for use at work, including machinery, is safe.
Manual Handling Operations Regulations 1992: cover the moving of objects by hand or bodily force.
Health and Safety (First Aid) Regulations 1981: cover requirements for first aid.
The Health and Safety Information for Employees Regulations 1989: require employers to display a poster telling employees what they need to know about health and safety.
Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR): require employers to notify certain occupational injuries, diseases and dangerous events.
Noise at Work Regulations 1989: require employers to take action to protect employees from hearing damage.
Electricity at Work Regulations 1989: require people in control of electrical systems to ensure they are safe to use and maintained in a safe condition.
Control of Substances Hazardous to Health Regulations 2002 (COSHH): require employers to assess the risks from hazardous substances and take appropriate precautions.
For a full list of Regulations (Sis) enforced by the Health and Safety Executive/Local authority, please visit http://www.hse.gov.uk/legislation/statinstruments.htm
Regulations are supported by Approved Codes Of Practice (ACOPs), which set out detailed guidance on what constitutes compliance with the law.
Approved Codes of Practice (ACOPs)
Approved Codes of Practice describe recommended methods of complying with regulations/duties imposed by the Health and Safety at Work Act. It is not compulsory to comply with ACOPs, but if they are followed you will more than likely be compliant with the law with regard to the specific matters they refer to.
ACOPs Legal Status
An ACOP is approved by the Health and Safety Executive, by consent of the Secretary of State. The practical advice given means you will be doing enough to comply with the law in respect of those specific matters on which the Code gives advice. It is possible to use alternative methods to those set out in the Code in order to comply with the law but you must remember that ACOPs have a special legal status, in which if the provisions given are not followed you must show that you have complied with the law in some other way or a Court will find you at fault. An example list of ACOPs are given below:
Absolute and Qualified Duties
In most criminal offences it must be proved that a defendant committed an illegal act or omission and that there was an intent to do so. This is not the case with Health and Safety law, but rather that only an illegal act was carried out, most commonly by omission, rather than an act.
An offence under Health and Safety legislation is committed if a duty is not complied with. There are three separate levels of duty:
Absolute duties are most often imposed through the words “Shall” or “Shall Not”, these giving the obligation to do or not to do. If these phrases are used it is not possible to argue that a provision is impracticable, difficult or impossible; it must be complied with. A useful example is taken from the Workplace (Health, Safety and Welfare) Regulations 1992 Regulation 25 –
“Facilities for Rest and to Eat Meals “(1) Suitable and sufficient rest facilities shall be provided at readily accessible places.”
There is an absolute duty to provide suitable and sufficient facilities to rest and eat meals. The extent of the absolute duty is further demonstrated by the Factories Act (1961), in which it states that every dangerous part of any machinery shall be securely fenced” if someone is injured through lack of, or inadequate fencing the employer shall be guilty of an offence. If it is impossible to use the machine when it is securely fenced, then the Act implicitly prohibits its use (Summers & Sons -V- Frost ).
“Practicable” implies a strict standard, whereby whatever is technically possible must be done, in light of current knowledge which the person concerned had or ought to have had at the time. The standard of duty must be upheld, regardless of cost, time and trouble involved. However, if something is impossible, then it is not practicable and is not expected to be done.
‘Practicable”’means more than physically possible and implies a higher duty of care than a duty qualified by ‘so far as is reasonably practicable’. With a practicable requirement, if something is technically possible then it should be done”. (Adsett v K&L Steelfounders Ltd (1953)).
This is the most commonly encountered phrase; where it is used it is permeable to take account of the time, trouble, effort and expense and balance this against the risk of injury. Therefore a Risk vs Cost analysis must be performed. It would only be considered not to be reasonably practicable is the cost for additional precautions is out of proportion to the reduction of risk gained.
“ ‘Reasonably practicable’ is a narrower term than physically possible and implies that a computation must be made in which the quantum of risk is placed on one side of the scale and the sacrifice involved in carrying out the measures necessary for averting the risk is placed on the other side. If it can be shown that there is gross disproportion between the above factors, i.e. the risk is insignificant in relation to the sacrifice, then a defendant discharges the onus on themselves” (Edwards v. National Coal Board (1949) and Marshall v Gotham & Co Ltd (1954).
The above has set out the key legislation from which Health and Safety Law is prescribed and given definitions to a number of key terms. However, it is necessary to understand the HSWA (1974) and MHSWR (1999) in further detail.