The HSWA imposes general duties on all employers and the self-employed to ensure the health and safety of those who may be affected by their business activities, and on employees to look after their own safety. It also allows outdated, prescriptive legislation to be replaced by objective-setting Regulations, supported by ACoPs and guidance notes.
The European Union instigates many changes in UK health and safety legislation by issuing EU directives that Member States are required to implement by passing their own legislation. The HSWA allows such requirements to be implemented in the UK as Regulations.
Case law has developed alongside legislation, imposing duties of care on employers and the self-employed to look after the health, safety and welfare of their employees and the health and safety of others affected by their business activities.
Breaches of health and safety legislation in the workplace can give rise to criminal investigation and liability. In addition, whilst generally speaking the fact of a health and safety breach does not create a right to a civil claim, the reality is that the circumstances of the accident and related evidence are likely to be used in any civil personal injury claim.
Before the introduction of the HSWA, health and safety legislation had developed in a piecemeal fashion, providing specified industries and hazardous working activities with a set of prescriptive rules to follow. In 1974 this approach was replaced by the HSWA, which is now the cornerstone of modern health and safety legislation.
The HSWA imposes duties on everyone at work – employers, the self-employed, and employees. The principal duties it imposes are as follows.
Section 2: Duties of employers to employees
Employers must ensure the health, safety and welfare of their employees, subject only to the defence of ‘so far as is reasonably practicable’.
To discharge its duty, an employer must provide (so far as reasonably practicable):
All employers must make and review a suitable and sufficient assessment of the risks of their activities to employees (Regulation 3 of the Management of Health and Safety at Work Regulations 1999).
An employer with five or more employees must prepare and regularly review a written health and safety policy statement, to set out how health and safety is managed in the organisation. This may include the organisational structure and detailed arrangements for health, safety and welfare. The employer must also bring it to every employee’s attention.
Employers must also have in place such arrangements as are necessary to effectively plan, organise, control, monitor and review any preventive and protective measures.
Employers must appoint competent persons to assist with the measures necessary for ensuring health and safety (Regulation 7 of MHSWR) and must also consult with employee representatives (including trade unions) when making health and safety arrangements.
Section 3: Duties of employers to others
An employer must conduct his business so as to ensure that non-employees are not exposed to health and safety risks. Again, this duty is subject to the defence of ‘so far as is reasonably practicable’. If the employer is a self-employed person, then he must also, so far as is reasonably practicable, conduct his business to ensure that he is not exposed to such risks. Non-employees include, but are not limited to, contractors, visitors and members of the public.
An employer must make and review a suitable and sufficient assessment of the risks of their activities to persons not in their employment and who may be affected by the business activities (Regulation 3 of MHSWR).
Section 4: Duties relating to premises
Any individuals or organisations with total or partial control of work premises must, so far as is reasonably practicable, ensure the health and safety of all non-employees who work there, to the extent of their control.
This means that landlords and managing agents may be responsible for the safety of those working in the common parts of buildings (e.g. cleaners, maintenance staff, etc.), whilst non-domestic tenants will be responsible for the health and safety of any person in the areas covered by their lease.
Section 6: Duty of manufacturers
Anyone who designs, manufactures, imports or supplies articles or substances for use at work must ensure, so far as is reasonably practicable, that those articles are safe for their intended use.
Section 7: Duties of employees
While at work, employees have a duty:
Section 8: Misuse of health and safety equipment
No person (whether an employee or not) shall misuse anything provided in the interests of health, safety or welfare.
Section 36: Individual liability
Where an offence is committed due to an act or default of some other person (not being an employee), that person shall be guilty of the offence and may be charged and convicted of it, whether or not the employer is also charged.
This means that an individual employee can be charged with a health and safety offence without the company being charged of that offence.
Where an offence by the company is proved to have been committed with the consent, connivance or by the neglect on the part of any director, manager or company secretary (or similar person), then he or she will also be guilty of the offence and may be prosecuted personally.
An employer who intends to rely on a defence of reasonable practicability in a health and safety prosecution is required to prove that they have done everything reasonably practicable (or everything practicable for some offences) to safeguard the health and safety of employees, non-employees or members of the public.
This means that the burden of proof is on the employer to prove that adequate prevention methods were in place.
Many health and safety duties require the duty-holder to do everything possible to ensure the health and safety of others, subject only to a defence of ‘so far as is reasonably practicable’. This phrase means doing less than absolutely everything physically possible (i.e. everything ‘practicable’) and involves a balance to be struck between the risk to health and safety (in terms of the likelihood of harm occurring and the potential consequences) and the inconvenience and cost in terms of time, money and other resources of overcoming that risk. If the costs are disproportionate to the risks then the test is satisfied and the employer will be more positively able to assert the defence that it was not reasonably practicable to do more to protect against the risk.
Assistance on what is reasonably practicable comes from ACoPs and guidance documents issued by the HSE. Relevant British Standards industry guidance and common accepted industry practices should also be relevant considerations.
In practice, however, the defence of reasonable practicability is very difficult to satisfy, as it is often the case that when an incident is viewed with hindsight an additional measure with a limited resource implication may have been taken in relation to avoid that incident. In addition, the courts have also determined that the standard of care is the same regardless of the size of the company and its available resources.
Employers should record their risk assessments and the decisions to implement or reject certain safety measures. Since safety measures must be proportionate to the risk they are averting, the first step is to identify and assess the risk, after which the available control measures should be identified and assessed. If the time and costs involved in the control measure are disproportionately high in comparison with the risk involved, then in theory the duty to do everything reasonably practicable will be satisfied, even though the measure is not implemented. In practice, considerable evidence of the reasons for this decision will be required if this defence is to be used in relation to a health and safety incident.
The difficulty for many employers in making this judgement is that the question of whether the correct balance is reached is one that only a court can definitely decide after looking at all the evidence in each case.
Numerous Regulations have been made under the provisions of Section 15 of the HSWA that impose detailed obligations on employers and those controlling work activities. The most important of these are covered in other chapters of this Handbook.
ACoPs have a ‘quasi-legal’ status. Although they do not provide definitive interpretation of legislation (only the courts can do that), compliance with the relevant ACoP does provide good evidence of compliance with the relevant statutory duty, and, crucially, can be evidence of doing everything ‘reasonably practicable’. Similarly, if an employer cannot show that he has followed an ACoP in relation to a health and safety incident, the employer must show that it has discharged its relevant health and safety obligations in some other way, or risk prosecution.
Health and safety prosecutions take place in the criminal courts, starting formally with the receipt of a summons to appear at the Magistrates’ Court. This is usually issued in a court near to where the accident occurred. Generally, the case may be heard in the Magistrates’ Court, where the maximum penalty that can be imposed is a £20,000 fine and/or (for a small number of charges) six months’ imprisonment for each charge. Cases that are complex, or result from a more serious outcome, will be committed (referred) by the magistrates to the Crown Court, where the maximum penalty rises to an unlimited fine and/or two years’ imprisonment (again for specific charges only).
Maximum penalties under the HSWA and the Regulations are set out in Table 1.
Table 1: Maximum penalties available under HSWA and associated Regulations
Sometimes in health and safety investigations, the measures that an employer takes may amount to either a complete or partial defence to the charges. However, if a prosecution does follow, the same information may also amount to mitigation of the offence committed. Providing evidence of relevant mitigating factors can assist in a reduction in the fine imposed.
The courts have given guidance on the particular factors that amount to mitigating or aggravating features. This can increase or decrease the level of any fine, subject to the Court’s discretion.
These include the following.
Anyone who suffers injury or ill health as a result of work activities may be entitled to bring a personal injury claim against those responsible for compensation. To be successful, the injured party (the claimant) must prove that:
The existence of a duty of care is generally easy to prove in an employer–employee relationship, since the employer has a duty to provide under civil law:
These civil law duties are similar to the duties under Section 2 of the HSWA. Comprehensive risk assessments that are up to date will help to provide good evidence in defence of any claim that the employer has breached any of the above duties.
Occupiers (those in control) of premises are under duties contained in the Occupiers' Liability Acts 1957 and 1984:
A breach of these Acts is not a criminal offence and is only actionable in civil law in a claim for compensation.
An employer may be responsible for the negligent acts or omissions of employees committed in the course of their employment. A claimant can sue an employer on the basis of vicarious liability, provided he can show that the employee was negligent and this caused his injury. However, an employer will escape liability if it can show the employee was acting ‘on a frolic of his own’ outside the course of his employment.
Successful claimants in civil claims will usually receive compensation in the form of a one-off lump sum. This is assessed under a number of headings:
Most personal injury claims are paid for out of insurance (employers’ liability or public liability), subject to any exclusions or excesses under the policy. The Employers’ Liability (Compulsory Insurance) Act 1969 and 1998 Regulations require employers to hold a £5m insurance cover for claims brought by their employees.
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