HEALTH & SAFETY AT WORK etc ACT 1974 LEVELS OF DUTY/LEGAL TERMS “It is the duty”:- Absolute - it must/shall/will be done Summers Vs Frost (1955) “Practicable”:- If it can be done, in light of current technological, scientific knowledge, then it MUST BE Adsett Vs K & L Steel Founders [1953] “Reasonable Care” What the reasonable person would do..

REASONABLY PRACTICABLE Time Severity Trouble Likelihood Expense Population affected COST RISK Edwards Vs. National Coal Board [1949]

HASAWA 1974 SECTION 2 General Duties Of Employer To Employee The effect of Section 2 is to make criminally enforceable the common law duty to take reasonable care for the safety of employees. 1

SECTION 2 “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.” In particular this duty extends, so far as is reasonably practicable to:- Safe plant and systems of work Safe use, handling, storage and transport of articles and substances The provision of any necessary information, instruction, training and supervision Safe place of work with safe means of access and egress A safe working environment.. 3

SECTION 2 Safety Policy The employer must: Prepare a written statement of his health and safety policy Set down the organisation and arrangements for carrying out the policy i.e. who is responsible and for what Revise and up-date as necessary Bring the policy and arrangements to the notice of all employees. Safety Representatives & Safety Committees The employer must: Consult with Safety Representatives on the arrangements for co-operation on safety measures Consult with Safety Rep’s on monitoring safety measures When requested establish Safety Committees.. 4

SECTION 3 Duties to Others An employer (or self-employed) must so far as is reasonably practicable safeguard anyone not in their employment who would be affected by their activities (eg. the general public, contractors). SECTION 4 Those in control of premises must ensure that they are safe, have safe access and egress, and that any plant or substances do not endanger health (eg. visitors, customers, etc.).. SECTION 6 Duties of Suppliers It shall be the duties of designers, manufacturers, importers and suppliers of articles or substances for use at work to ensure, SFRP, that the article or substance is so designed/ constructed that it will be safe and without risks to health at all times when it is being set, used, cleaned, handled, processed, stored, transported or maintained by a person at work. 5

SECTION 7 Duties Of Employees Every employee must:- Take reasonable care for their own health and safety Take reasonable care for the health and safety of anyone who may be affected by their acts or omissions Co-operate with their employer or any person to enable their legal obligations to be met. SECTION 8 No person shall misuse or interfere with anything provided in the interests of health and safety at work. SECTION 9 Employees cannot be charged for anything done or provided to comply with specific legal obligations.. 6

SECTION 17 If a Regulation has been contravened, failure to comply with an ACOP. is admissible in criminal proceedings. SECTION 36 Where an offence is committed by a person due to the act or default of another, either or both may be prosecuted. SECTION 37 Where an offence is committed by a corporate body with the knowledge or through the neglect of a responsible person, both that person and the body corporate are liable to prosecution. SECTION 40 In proceedings for an offence, the onus of proving the limits of what was reasonably practicable rests with the accused. SECTION 41 The absence of entries in a statutory record is admissible as evidence of failure to comply.. 7

SECTION 18 & 19 Enforcement Authorities are responsible for enforcement and appointment of inspectors. To enter premises at any reasonable time To take a constable with him if necessary To take another authorised person and necessary equipment To examine, investigate… To take samples To dismantle or test Require the production of relevant books/documents Require information, facilities and assistance To seize and render harmless any article or substance To issue Improvement or Prohibition notice.. 8

SECTION 21 Improvement Notice Identifies a contravention of legal requirements Requires compliance within a specified time. SECTION 22 Prohibition Notice Specifies a risk Identifies any contravention of any legal requirements Directs that the activities cease until remedied. SECTION 24 Appeals Employers may appeal against Notices to an employment tribunal within 21 days. If an appeal is made :- Improvement Notices are suspended until the appeal is heard Prohibition Notices remain in force.. 9

SUMMARY An “Enabling” Act A general duty of care on all people at work Protection for public and other persons Flexible legislation - Codes of Practice Consultation and representation Powers for Inspectorate Criminal Liabilities for employers, employees, designers, manufacturers, suppliers, importers and contractors.. 10

SECTION 33 OFFENCES & PENALTIES Prosecutions under HSWA may be brought in respect of the following offences:- OffenceSummaryOn Indictment Failure to discharge a duty under Section 2-6£20,000£ no limit Contravening Section 7-9£5,000£ no limit Contravening Health & Safety Regulations£5,000£ no limit Obstructing an Inspector£5,000 Contravening any requirement under £5,000 Section 20 (Powers of Inspectors)

SECTION 33 OFFENCES AND PENALTIES Offence Summary On Indictment Contravening requirement under Section 25 £5,000£ no limit (Power of the Inspector) Preventing a person from appearing before an £5,000 inspector Contravening a requirement £20,000£ no limit of an enforcement notice and/or 6and/or 2 monthsyears Intentionally obstructing an inspector £5,000 Contravening a notice served by the Commission £5,000£ no limit (requiring information)

SECTION 33 OFFENCES AND PENALTIES Offence Summary On Indictment Forging a document, or, using a forged document £5,000 £ no limit Pretending to be an £5,000 Inspector Failing to comply with an £20,000 £ no limit order of the court and/or and/or (order to remedy) 6 months 2 years Acting without a licence and/or £5,000 £ no limit and/or contravening the terms 2 years of such licence Acquiring, using or £5,000 £ no limit possessing explosives and/or 2 years

SECTION 33 OFFENCES & PENALTIES Offence Summary Indictment Using or disclosing £5,000 £ no limit Information and/or 2 years Making a false or reckless £5,000 £ no limit statement Intentionally making a false £5,000 £ no limit entry in any register or book required to be kept

FACTS & FIGURES HSE Inspectors - Approx. 1,500 responsibility over 650,000 workplaces as well as many ‘temporary establishments’ eg. construction sites and transient activities eg. the transport of dangerous substances.  Investigates more than 30,000 accidents or complaints each year.  Local Authority Inspectors (EHO’s) – Approx represent over 400 local authorities. Responsible for enforcing health and safety law in over 1.27 million workplaces where 8.5 million employees work..

COURT OF APPEAL (BL. UK Vs. SWIFT) Lord Denning’s view of how the reasonable test should be applied: The Industrial Tribunal had wrongly applied a test of whether a reasonable employer would have considered that a lesser penalty than dismissal was appropriate. The correct test is, was it reasonable of the employer would have dismissed him, then the dismissal is unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal is fair. There is a band of reasonableness within which one employer might reasonably dismiss the employee, whilst another would quite reasonably keep him on. It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would impose. If it was reasonable to dismiss, the dismissal must be upheld as fair even though some other employers might not have dismissed.. 2