Employment 7- UK Health and Safety Law

Question 1

intro health and safety law?

Answer 1

Clear focus ept2 = discrim law 
Harras v and also reme discri la
Having comlete discrim law
Topics cover bc requirements law that we cover them LESS CARENTRY BE IN EXAM B UTT POSSIBEL,
Today = basic if uk

Question 2

review of lec 6?

Answer 2

Review:

In lecture 6, we acquired the ability to:
(i) explain in detail and apply the law on remedies re a discrimination claim; and
(ii) explain in detail and apply the remaining 2 of the 4 main types of prohibited conduct (PCo), namely:
S 26: Harassment; and
S 27: Victimisation;
the other 2 main types being:
S 13: Direct discrimination; and
S 19: Indirect discrimination

Question 3

preview of lec 7?

Answer 3

Preview:

Lecture 7:

In lecture 7, we’ll finally move away from discrimination law and consider the topic of health and safety law, with a particular focus on the general duties owed by an employer under the Health and Safety at Work Act (HASAWA) 1974 and the guidance provided by the Health and Safety Executive (HASE)

Question 4

intro to lec 7?

Answer 4

Welcome to lecture 7 of our Employment Law 2 module, our only lecture on health and safety law

Question 5

what about HAWASA?

Answer 5

The Health and Safety at Work Act (HASAWA) 1974 is not in our statute book, so there is less expectation on us to provide statutory authority in our answers should there be an exam question on Health and Safety (HAS)

Question 6

WHAT IS IT BOTH?

Answer 6

It’s both an implied term and a specific statutory duty under the HASAWA that all employers have a duty to take reasonable care for the HAS of their employees

Question 7

intro in other wors?

Answer 7

Key stat above
Hassle health and saf work- not in sta book but sitl refer to some stat
Basic helath safety in uk
Its both impleid terma nd stat duty hat all employr have duty to take rreaosnable care for health and safety employees- basic start point
Found speci s.2 health safte- says give employer sbeit leeway has to be reaosmable practicable – ptoetc health and safety of ppl in workplace

Question 8

why is HAS a controversial area?

Answer 8

HAS is a controversial area because employers hugely resent the burden placed on them by:

(i) the wording of the HASAWA; and
(ii) the guidance from the Health and Safety Executive (HASE), places on them

Question 9

the coservative party continues to?

Answer 9

The Conservative Party continues to promise to reduce these burdens to help small UK businesses

Question 10

always been contro in other words?

Answer 10

Always been contro area bc much like discrim emloyers resentful of burdens imposed byr req of hasle and alwell been aware of act have to be aware of health safety execut= indepdnant watch dog

Question 11

it kind of in a wa what in other words?

Answer 11

. Its kind of in away attached to deprment of trade and industry but supposed to be idnepdnant than gov. but is clear connected between health and safety exec and department for trade and industry.

Question 12

now something else in other words?

Answer 12

Now soemthign else keep agreeing that as a general rule the labour aprty focuses its attention n protecting rght for workers wheras labour for employrs. So perhaps not surpisng whever conserve keep maing promises dow hat they can to reduce burden imposed by employers help uk business to thrive. Helath safety as disliked emplyes as will discrim law

Question 13

HASAWA was passed when?

Answer 13

The HASAWA was passed in 1974 because the Robens Committee had decided that, rather like discrimination law before the Equality Act 2010, there were too many different statutes which needed to be consolidated

Question 14

under the hawasa?

Answer 14

Under the HASAWA, 1 body, the HASE, is charged with overseeing HAS

Question 15

what does hawas cover?

Answer 15

The HASAWA covers all employees and non-employees except domestic workers

Question 16

what is the key?

Answer 16

The key is whether employers control them:

Question 17

passed when in other words?>

Answer 17

Passed way abck 1974 bc commite above – unne complica leg at time.
Un ifed equal act 2010- various did acts unifed con in the health and safety work so as we agreed its that act that makes it job of health and safety exec to supervise and oversee the helathy and safety of workers around he uk. It cobvers pretty much everybody so s.2 looks at wording relates to employees but s.3 4 extend beyond employes to even sometimes visitors who dotn even work for them, why employers don’t like cos wide.

Employer lec 9/10 various test court apply – 1 test was control test, more conrrol that employer excercised over worked, the greater chance court consie worker to be employee. And similarly with h and s and liability for h and s the court will consider the bgretaer control employer has over worker, more likely considerd liable and repson for he and s of that worker

Question 18

what is the case?

Answer 18

Biffa Waste Services Ltd (BWS) v Maschinenfabrik Ernst Hese GmbH (MEH) 2008:

Question 19

biffa waste case in depth?

Answer 19

BWS sued MEH which had contracted to build a plant for BWS but had sub-contracted the work to an independent company which had caused a fire
The HC: MEH was responsible for the sub-contractor’s failure as MEH had imposed sufficient control over the way the plant had been built to have become responsible
The CA: allowed MEH’s appeal, ruling that BWS could not establish MEH’s liability as the sub-contractor’s workers had too much independence as MEH supervised but didn’t control them

Question 20

biffa important point?

Answer 20

The important point re Biffa 2008 is that it was the case in which the CA established the control principle:

Where an employer controls an independent contractor, it is vicariously liable for the HAS of the independent contractor’s workers

Breach of the HASAWA leads to a criminal prosecution rather than civil liability

There are around 1,000 prosecutions per year

Question 21

wasnt efficient in other words?

Answer 21

Wasnr effiencient but did establish trst
if found to have rbeached any sectios its actually crime so subject to cim prosecution than civl most go to fine b ut still a crime

Question 22

s.20-22 in other words and normal?

Answer 22

Sections 20-22 HASAWA grant powers to HASE Inspectors

Detail alter sec – s.2 duty care where practicle
s.20- 22 cover pwers inspectors do to ensur safety of worke rin work place.

s.21 and 22 bas cover genral right sinspector has to try ensure h and s of workers in workplace

Question 23

concepts of vic liability?

Answer 23

The concepts of vicarious liability, harassment and bullying, which we came across when considering discrimination law, all apply equally to HAS

Question 24

s.20 1?

Answer 24

Section 20(1): If an Inspector believes an employer is in breach of a statutory provision, he can issue against the employer an Improvement Notice (IN) to remedy the breach

Question 25

s.20 2?

Answer 25

Section 20(2): Inspectors can enter premises at reasonable or dangerous times, and can take away items for examination and investigation if they feel this is necessary

Question 26

s.20 2 in other words?

Answer 26

s.20 2 has massive lsit of power grnated to inspector e.g enter premises, if ehard com heard by nutcase polic constable, take away items for exmainatio, they can bring with them equip, hey can conduct investi, many powers to enabele inspectgors of ha nd s exec to supervie and investigate the working practise of emplpyer to ensure no dodgy machines, that non workers lives at risk

Question 27

A in must give what?

Answer 27

An IN must give the employer at least 21 days to remedy the breach An IN may give details of how to remedy the situation in a schedule attached to the notice An IN does not remain in force when an employer appeals against it

Question 28

s/21 in other words?

Answer 28

s.21 improvement notice and s.22 is prohibition notice. Prohib most feared by emplpoyer but employer not hughely innumberd by improve notice. Improve norice 21 days to ,make improve e.g machine needs improved month to replace or alter so no logner dang And contained within notice mgith eb isntrutions provided by isnpectior to do to bring in line with h and s law. 1 reason employer appeals it seizies to be live until appeal heard that improvement notice put on stand stil meven where appeals Prohibition notice continues to apply even where employer appeals Impro – bad Prohiv - badder

Question 29

s.22 ?

Answer 29

Section 22: If an Inspector believes an employer is in breach of a statutory provision, and to carry on in this way will involve a risk of serious personal injury, they can issue against the employer a prohibition notice (PN)

Question 30

an example of pn?

Answer 30

An example of a PN is a requirement that workers wear safety equipment such as safety goggles to use certain machines

Question 31

pn usually has what?

Answer 31

A PN usually has immediate effect but may kick in after a certain period

Question 32

as with in a pn what?

Answer 32

As with an IN, a PN may give details of how to remedy the situation in a schedule attached to the notice

Question 33

unlike improvement employer what?

Answer 33

Unlike improvement employer no time to repair its immediate and if aston were to appeal wouldn’t tstop it being live,nto stp it beig valid prohib notice Detila in notice before employee cnan continue to operate Limtied to sit where feels SERIOUS PERSONA INJURY- vague risk = improve but serious= prohib

Question 34

however unlike IN?

Answer 34

However, unlike an IN, a PN remains in force when an employer appeals against it

Question 35

what will an et consider?

Answer 35

An ET will consider whether the duty the IN or PN imposes is: (i) reasonably practicable - Associate Dairies Ltd v Hartley 1979; - or (ii) absolute - South Surbiton Co-operative Society v Wilcox 1974

Question 36

what is another thing to note?

Answer 36

Another thing to note duty is sometimes the notice provided = include wording where REASONABLY PROACTICABLE and sometimes absolute… Gotta be reaombale aksing wmplyer to do. 1 standard h and safety law- ALAR – as low as reasonable possible. So sometimes zero tol but sometimes requirements risk of injry alr

Question 37

the distinction is important bc what? and et

Answer 37

The distinction is important because, provided the duty the IN or PN imposes is reasonably practicable rather than absolute, there are 4 grounds on which an employer can appeal to the ET re an IN or PN

Question 38

what can et confirm?

Answer 38

The ET can affirm, modify or cancel an IN or PN The 4 grounds of appeal are: (i) it did not breach a statutory duty;

Question 39

why dis improtant in other words?

Answer 39

Why dis import? 4 grounds employer can appeal in repson IN ORP P r.a.w 1- we think done everything supposed to do

Question 40

time limit 2?

Answer 40

(ii) the time limit imposed by the IN or PN for remedying the defect is too tight; Time limits may be extended provided there is no immediate risk of personal injury and there is a willingness to make modifications

Question 41

time limit in other words?

Answer 41

2. Right this second amend but improv notice req only kick in after 21 days ut maybe insoector say 21 gotta do this but need mre to do this like 2 onths. Sometimes appeal might not always be to be removed but in time period allowed to make that change being itnroudced

Question 42

whats no.3?

Answer 42

(iii) there is in fact no risk or danger; and

Question 43

what happeend in brewer?

Answer 43

In Brewer & Sons v Dunston 1978, the ET found there was no evidence to support the contention that there was an immediate risk of serious injury (there was no evidence of a previous accident on the machine in question) so the PN was discharged

Question 44

the cost complying number 5? and case?

Answer 44

(iv) the cost of complying with the PN is too high for the employer to do so In Nico Manufacturing v Hendry 1975 and TC Harrison Ltd v Ramsey 1976, the ET was very reluctant to uphold an appeal on this ground through fear of giving an unfair advantage to the employer who could then avoid the HASAWA obligations

Question 45

in other wrods?

Answer 45

r.Aw not talking about bt were talking abot local corner shop e.g discirmlaw s.20 reasonable adjustment how can smallf irm do tnhat. So case nico Cant afford but ppsinle found of appeal

Question 46

a worker appealing an et dec?

Answer 46

A worker appealing an ET decision must do so in the Divisional Court rather than the EAT because the EAT can hear only civil matters whereas, as we have agreed, breach of an IN or PN is a criminal offence

Question 47

s.42 ?

Answer 47

Section 42: Rather than punish an employer, a court may order the employer to remedy the breach

Question 48

failure to do ?

Answer 48

Failure to do so would be contempt of court

Question 49

the penalty for non compliance?

Answer 49

The penalty for non-compliance with a section 42 order can be: 6 months / £20,000 in the Magistrate’s Court; or 2 years / an unlimited fine in the Crown Court

Question 50

bring in et in other words?

Answer 50

Bring it in et Where does worker appealing dec after et made dec normally appeal heard et. But ha nd s held at dicisonal court main reason cos criminal offfence. s.42 allows court rather than fine employer t insist remedy dang sit. If fail to remdy dang sit = normally find £20,00 r.aw Extrely rare possible for ceo employer be imprisone rare but poss

Question 51

what is unusaaly for employmenet law?

Answer 51

Unusually for Employment Law, the ET may make a costs order against the unsuccessful party, which it is likely to do if it feels the employer made a real effort to comply or the claim seemed trivial Let’s now consider the duties sections 2-9 impose on employers and workers:

Question 52

duties s.2?

Answer 52

Duties s.2 – 9 s.2 key sec h and s of emplpyees All these duties contained

Question 53

s.2 1?

Answer 53

Section 2(1): Duties which are not absolute but reasonably practicable are owed by all employers and extend to premises over which employers have actual control

Question 54

what do the duties include?

Answer 54

Such duties include: (a) the provision and maintenance of plant and systems of work; (b) safety when using or storing items; (c) the training and supervision of workers; (d) keeping premises in a safe condition; and (e) having adequate facilities for a worker’s welfare

Question 55

duties in oher words?

Answer 55

6 pack set of reg | Summarise kind of duties imposed on employer h and s r.a.w

Question 56

what have we agreed?

Answer 56

As we’ve agreed, if statute states that a duty is absolute, then the requirements must be complied with

Question 57

hw if stat?

Answer 57

However, if statute states that a duty only applies where reasonably practicable, then an ET has leeway to consider what is reasonable, but this tends to apply more to an IN than to a PN as an PN often deals with a risk of personal injury

Question 58

s.2 3? in other words?

Answer 58

s.2 3 r.aw WRITTEN SAFETY POL Doesn’t really ofeer guidna Reviewd r.a in line with not enough pol ened to be trainig a nd if worer no engliush then obs isnturitons English wont suffice could be pics orf could be ensure e.g gogole translare these days

Question 59

s. 2 3 imposes?

Answer 59

Section 2(3) imposes on an employer a requirement to have a written safety policy, but this only applies to an employer with 5 or more workers

Question 60

s. 2 3 offers?

Answer 60

Section 2(3) offers no guidance on content, recognising that each employer is different

Question 61

s.2 3 states?

Answer 61

Section 2(3) states that the policy must be reviewed and requires that a written safety policy must be brought to the attention of all workers and should lay out their responsibilities

Question 62

s.2 3 also states?

Answer 62

Section 2(3) also states that non-English speakers / readers should be informed in a different way

Question 63

s. 3 ?

Answer 63

Section 3 covers duties ensuring lawful visitors and those outside the premises are not exposed to risks to their HAS ‘so far as is reasonably practicable’ If there is a potential hazard, information and a warning must be provided to visitors as well as employees

Question 64

in other words to this?

Answer 64

r.Aw nto just workers who heal safety risk its people vising to VISITORS

Question 65

s.7 imposes what and s.8 ?

Answer 65

Section 7 imposes duties on a worker while at work For example, a worker must: take reasonable care to ensure the HAS of him / herself and others; and co-operate with their employer re HAS Section 8 imposes further duties on a worker while at work, covering intentional and reckless interference / misuse For example, a worker must not interfere with HAS provisions

Question 66

if turns out worker in?

Answer 66

MUST COP- IF TURN S OUT WORKER IN DANGER AGAIN AGIN – employer sill end to prove it

Question 67

the hasawa also grants what?

Answer 67

The HASAWA also grants rights to a worker For example, section 44 gives a worker the right not to suffer a detriment in a HAS case Again, section 100 gives a worker the right not to be dismissed unfairly in certain circumstances involving a HAS case

Question 68

what are known as six pack regulations?

Answer 68

What are known as the ‘Six Pack’ Regulations (regulations which apply to people in the workplace) came into force in 1993

Question 69

what are the 6 regulations?

Answer 69

The 6 sets of regulations are as follows: (i) The Management of HAS At Work Regs 1999 These concern the supervision by an employer of young and / or pregnant workers

Question 70

thesem reg in other words?

Answer 70

Came into for r.a.w thse reg in partic rel to ALAR In terms of risk man don’t need 0 risk but only loas as risk as poss

Question 71

2nd reg?

Answer 71

(ii) The Workplace (Health, Safety and Welfare) Regs 1992 These concern the maintenance of the workplace (heating, washing facilities, lighting, rest facilities etc)

Question 72

3rd reg?

Answer 72

(iii) The Provision and Use of Work Regs 1998 These concern the maintenance of equipment and preparation of warning signs which can easily be understood

Question 73

4th reg?

Answer 73

(iv) The Personal Protective Equipment at Work Regs 1992: These concern protective clothing and equipment (which must conform to EU standards), and how to use it

Question 74

5th reg?

Answer 74

(v) The Manual Handling Operative Regs 1992: These concern the handling of machinery

Question 75

6th reg?

Answer 75

(vi) The HAS (Digital Screen Equipment) Regs 1992: These concern the maintenance of laptops, PCs etc

Question 76

s.33?

Answer 76

Section 33: an individual (such as a director where they were responsible) as well as an organisation can be charged or convicted for breach of the ‘Six Pack’ Regs

Question 77

s.40?

Answer 77

Section 40: The burden of proof begins with the claimant but the civil ‘balance of probabilities’ standard is applied

Question 78

the burdern then switches to?

Answer 78

The burden then switches to the accused to prove they did all that was reasonably practicable

Question 79

we only need to be aware of what?

Answer 79

We need only be aware of, rather than know in any detail, the Corporate Manslaughter and Corporate Homicide Act (CMACHA) 2007 The key point is that conviction under this Act requires gross breach of the duty of care

Question 80

act 1?

Answer 80

Lecture Activity 1: Fred owns ‘Frying Tonight’, a small fish and chip shop. An Inspector from the HASE arrives and tells Fred he wants to make a site visit because 1 of his employees has reported that the chip fat jumps up dangerously into her face. The Inspector mentions an IN and a PN.

Question 81

scenario in othet worsds?

Answer 81

Do as usal apply what we learn to imagin scenario

Question 82

scenario a?

Answer 82

(a) Referring to HAS law, advise Fred what would be the impact on his business if the Inspector issues: (i) an IN; and / or (ii) a PN (b) Would there be anything Fred could do if the Inspector did issue either notice?

Question 83

scenario a in other words?

Answer 83

First in and or pn and then say would there be any r.a.w | 1st have to explain what eah notice is

Question 84

suggested answer?

Answer 84

Suggested Answer: (a): We might begin by saying that the law on health and safety (HAS) is contained within the Health and Safety at Work Act (HASAWA) 1974, which imposes a duty on all employers to take reasonable care for the HAS of their employees This is an implied term as well as a specific statutory duty under the HASAWA HAS is overseen by the Health and Safety Executive (HSE), whose inspectors can enforce HAS requirements in the workplace

Question 85

answer in other words?

Answer 85

r.Aw s.21 IN s.22 PN Or before act hasaw s.2 general duyt on employers ensure has of workers ND VISITORS Also worth nothicing HAN D S , HSE INDPEDNANT WATCHDOG INSPECTORS ROUND COUTNRY PROTECT PEOPLE WORKPALCE ANY RISK HEALTH AND SAFETY

Question 86

s.20 and s.22?

Answer 86

Section 20 of the HASAWA allows a HSE inspector to issue on an employer which has breached the HASAWA an Improvement Notice (IN) to remedy the breach An IN must give the employer at least 21 days to remedy the breach Section 22 of the HASAWA allows a HSE inspector to issue on an employer which has breached HASAWA a Prohibition Notice (PN) where they feel that any activities which are carried on, or are likely to be carried on, involve a risk of serious personal injury

Question 87

s.20 lists what?

Answer 87

S.20 lists various rights inspector has its s.21 gives right inecotr to impose notice. Might sya if in imposed onfred he ahs atleast 21 days to comply. Or could say don’t want o se pn cos that can have immed effect only relates sit insp saitoed not just risk but seriosur ris. So quite hard for inspectore improve need for pn

Question 88

for an example what?

Answer 88

For example, a PN might require that all workers operating a specific machine wear safety equipment A PN can take effect immediately or after a certain period of time, and it remains in force even when an employer appeals against it If Fred does not comply with a PN and remedy the defect it identifies, he will be committing a criminal offence (b) So what could Fred do if the Inspector did issue either notice?

Question 89

e.g of prohib notice?

Answer 89

e.G prohib notice req specig gogole protect worker sparks, unfortantley immediate effect even if fred wer to applea against it it wouldn’t stop the pn being valid even during appeal notice valid, unlike IN. and even worse fred igmore = crime u have to comply or might end up with fine or doin time. Hes gonna say if imposes and if does hopeIN what can I do

Question 90

freds predicametn would?

Answer 90

Fred’s predicament would be greatly enhanced if the HASAWA section he had allegedly breached was 1 which imposes an ‘if reasonably practicable’ duty rather than an absolute duty, as it would give the ET more leeway to consider what it reasonable

Question 91

there are 4 grounds on wich fred could what?

Answer 91

There are 4 grounds on which Fred could appeal to the ET should a PN be issued: (i) alleging there was no breach of HASAWA; (ii) alleging the time limit imposed for remedying the defect was too brief; (iii) alleging there was no such risk; and (iv) cannot afford to comply with the PN

Question 92

say well hwat in relationto answer?

Answer 92

Say well depends on woring of notice cos some impose abslute duty to do sometjing and other only do what reasonable practi- 1st hope rwoansbly proatcial req Point ou 4 rights of appeal u could trya nd convince tribunal actualy haven’t pbreached ahsw , time lmit for u to remdy is too unreasonable, say that thee is acutlalt no riskto anyones health, why no wisus, ru fish and chip just cant afford to comply withr eq imposed ion u

Question 93

whether there was a breach ?

Answer 93

Whether there was a (i) breach of HASAWA is a question of fact for the ET to determine The ET may (ii) extend the time Fred would have to comply, provided there was no immediate risk of personal injury and a willingness to make modifications Whether there was a (iii) risk of serious personal injury is, again, a question of fact for the ET to determine The ET is very rarely prepared to accept an (iv) inability to pay argument because it would give an unfair advantage to the employer who could then avoid the HASAWA obligations

Question 94

what does tribunal do?

Answer 94

Tribunal then decide whethe do deice breah, time lim grante dresoansoble, satfieid fred right nor isk personal inury, 4th see vidnece from fred if he said cant afford lets see ur recent set of accounts que fish and chip down street so don’t lie.

Question 95

review of lec 7?

Answer 95

Review: In lecture 7, we’ll finally move away from discrimination law and consider the topic of health and safety law, with a particular focus on the general duties owed by an employer under the Health and Safety at Work Act (HASAWA) 1974 and the guidance provided by the Health and Safety Executive (HASE)

Question 96

preview of lec 8?

Answer 96

Preview: Lecture 8: In lecture 8, we’ll consider the topic of trade union law Seminar 4: We have 3 activities to prepare in advance of seminar 4, in which we’ll reinforce our understanding of: (i) the last 2 of the 6 types of PCo, namely: S 26: Harassment; and S 27: Victimisation; and (ii) health and safety law by applying our knowledge of the relevant law to problem-style questions