Flashcards in The HSWA 1974 & MHSWR 1999 Deck (28)
Under Section 2(1) of HSWA; a general duty is placed on the Employer. Translate this duty as it is said under HSWA
To ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees
In any prosecution that has the phrase 'So far as is reasonably practicable'; what two things does the prosecution have to prove in relation to the defendant?
That the defendant is an Employer; and has compromised Health, Safety & Welfare of one of more employees; an accident or any harm is NOT required.
Whilst it is not necessary to provide specific examples; explain the purpose of Section 2(2)(a),(d) and (e) of HSWA
These sections are concerned with the physical conditions or 'hardware' of the workplace and provide specific duties involved; these are all qualified by the term 'reasonably practicable'
Briefly explain the following definitions as they are interpreted under HSWA:
Place of Work
Safe Working Environment
Plant - Any machinery, equipment or appliance
Place of Work - Any place at which an employee works for any period of time. Not only the workplace but access to and egress from it.
Safe Working Environment - Exposure to chemical contamination and substances. Social and Psychological Environment.
Briefly explain how the HSWA covers 'Welfare'
Under HSWA there are no specific requirements regarding welfare. The HSWA states that the welfare arrangements and facilities must be adequate. Schedule 3 of HSWA further defines the meaning of 'adequate' to include; water supply, sanitary conveniences, washing and bathing facilities, first-aid arrangements, cloakroom accommodation, sitting facilities and refreshments. The WHSWR further establishes 'Welfare' requirements.
Section 2(2)(a) of HSWA is concerned with Safe Systems of Work. Briefly explain what this means.
A safe system of work has been defined as the physical layout of the job, the sequence in which the work is carried out, the provision of warning notices and the issue of special instructions.
Section 2(2)(b) of HSWA is concerned with Storage and Transport. Briefly explain the scope of responsibility held by the Employer under this section
The Employer has responsibility for "Arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances".
The use of articles and substances overlaps to some degree with the need to provide safe systems of work.
Section 2(2)(c) of HSWA is concerned with Information, Instruction, Training and Supervision. Briefly explain the scope of responsibility held by the Employer under this section
The Employer has a duty for "The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees"
Section 2(3) of HSWA is concerned with The Safety Police. Briefly explain the purpose of a Safety Policy and the duty placed on Employers.
The HSWA is an Act containing general duties; the safety policy is the key document that specifies how each individual concern is to fulfill its obligations under the Act.
Under Section 2(3) of HSWA 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 his employees".
This applies where there are five or more employees. Where there are fewer than five employees, such policy may be communicated in verbal form.
Section 3 of HSWA is concerned with Duties to Persons Other than Employees. Briefly explain the purpose of this section and the duty placed on Employers.
The purpose of Section 3 of HSWA is to ensure that adequate safeguards are in place to protect third parties. This section covers contractors at work in an Employers premises and children at school etc.
(1) It shall be the duty of every employer to conduct his undertakling in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their Health or Safety.
(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons who may be affected thereby are not thereby exposed to risks to their H&S.
The Deregulation Act 2015 makes amendments to Section 3 of HSWA to limit the scope of this duty to self-employed persons who conduct an 'undertaking of a prescribed description' i.e. one specifically prescribed by the HSWA (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015; which includes work in higher risk areas of agriculture, asbestos, gas and railways.
The duty on both Employers and Self-Employed is not to expose non-employees to risks to their Health & Safety using the phrase 'So far as is reasonably practicable'.
Name and explain the case pertaining to Section 3 of HSWA
R v Porter (2008) - Death of a 3 year old boy who suffered a head injury when he jumped off a flight of steps in the playground at his school. The headmaster of the school was subsequently prosecuted under Section 3(1) of HSWA.
The Judge (at first) stated that the steps constituted a risk if a child descended them unsupervised, and it would be reasonably practicable to prevent the child from doing this by providing constant supervision. The jury convicted the Headmaster.
On Appeal, the Court of Appeal concluded that the risk which the prosecution must prove should be a real risk as opposed to a hypothetical one. To decide this, factors taken into account were: The absence of any previous accident in circumstances which occurred day after day, unchanged levels of supervision in the playground and the fact that there was nothing wrong with the construction of the steps.
The evidence suggested that the only risk was that a child might descend the steps if unsupervised. The Court of Appeal took the view that this did not constitute exposure to risk sufficiently to establish liability under Section 3 of HSWA.
The Appeal decision reviewed the current legal test of 'Risk' under HSWA and decided that there needs to be a real, as opposed to theoretical, risk and that the existence of a previous similar accident can be a relevant factor.
Section 4 of HSWA is concerned with the Duties of Persons Concerned with Premises. Briefly explain the purpose of this section and the duty placed on Employers.
Provide an example of Case Law relating to Section 4 of HSWA
Section 4 of HSWA imposes duties on persons in relation to those who are not employees but who "use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there"
This section imposes duties on those who control non-domestic premises. In most cases, this will also be the employer who has Section 2 and Section 3 Responsibilities. Section 4 is broad and includes Landlords who rent out their premises to businesses, even though they may not actually employ anybody.
Select Management Ltd v. Westminster City Council (1984), it was held that the shared or 'common' parts of a block of flats are deemed to be non-domestic and therefore are encompassed by Section 4. The Occupier is bound to comply with the duty to those who are not his employees but who use such areas as places of work.
Section 6 of HSWA is concerned with Designers, Manufacturers, Importers and Suppliers. Briefly explain the purpose of Section 6 of HSWA and the duty placed.
Section 6 of HSWA places duties on any person who designs, manufactures, imports or supplies any articles for use at work. It has been amended by the Consumer Protection Act 1987.
(a) To ensure, so far as is reasonably practicable, that the article is so designed and constructed that it will be safe and without risks to health at all times when it is being set, used, cleaned and maintained by a person at work.
(b) To carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph
(c) To take such steps as are necessary to secure that persons supplied by that person with the article are provided with adequate information about the use for which the article is designed or has been tested and about any conditions necessary to ensure that it will be safe and without risks to health at all times as are mentioned in paragraph (a) above and when it is being dismantled or disposed of; and
(d) To take such steps as are necessary to secure, as far as is reasonably practicable, that persons so supplied are provided with all such revisions of information provided to them and by virtue of the preceding paragraph as are necessary by reason of its becoming known that anything giving rise to a serious risk to health and safety.
Paragraphs 6(1A)(a)-(d) then follow in the same manner as above except they apply to articles of fairground equipment used in connection with entertaining members of the public.
Section 6(4) and 6(5) of HSWA is concerned with Substances. Briefly explain the purpose of Section 6(4) and 6(5) of HSWA and the duty placed.
All persons shall ensure, so far as is reasonably practicable, that all substances will be safe and without risk to health at all times when a substance is being used, handled, processed, stored or transported by a person at work or in premises to which Section 4 applies.
Persons shall carry out or arrange for the carrying out of, such testing and examination as is necessary to ensure safety and avoidance of risk to health when being used, handled, processed, stored or transported.
Persons shall take such steps as are necessary to make sure that those supplied with the substances are provided with adequate information about any risks to health or safety, to which the inherent properties of the substance may give rise, about the results of any relevant tests that have been carried out, and about the conditions necessary to ensure that the substance will be safe and without risks to health when being used, handled, processed, stored or transported and when being disposed of.
Persons shall take such steps as are necessary to secure that those supplied with information are provided with revisions as necessary, by reason of its becoming known that anything gives rise to a serious risk to health or safety.
Section 7 of HSWA is concerned with Employees Duties. Briefly explain the purpose of Section 7 of HSWA and the duty placed.
General Duty: Section 7 of HSWA states that it shall be the duty of every employee while at work to:
Take reasonable care for the H&S of himself and other persons who may be affected by his acts or omissions at work
As regards to any duty or requirement imposed on his employer or any other person by, or under any of, the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
Section 8 of HSWA is concerned with Interference and Misuse. Briefly explain the purpose of Section 8 of HSWA and the duty placed.
Section 8 of HSWA states that no person shall intentionally or recklessly interfere with, or misuse, anything provided in the interests of health, safety or welfare in the pursuance of any of the relevant statutory provisions.
Unlike previous sections of the Act, the wording in this section means that an offence under this section is NOT one of strict liability and so intent must be proved by the prosecution.
Section 9 of HSWA is concerned with No Cost to Employees. Briefly explain the purpose of Section 9 of HSWA and the duty placed.
Provision is made under Section 9 of the Act whereby no employer shall levy, or permit to be levied, on any employees of his, any charge in respect of anything done or provided in the interests of H&S at work.
List the duties placed on Employers under MHSWR 1999
Make a suitable and sufficient RA of risk to Employees and others and to review if no longer valid. This also applies to the self-employed.
Apply the following principles of prevention:
Evaluate the risks that cannot be avoided
Combat the risks at source
Adapt the work to the individual
Adapt to technical progress
Replace the dangerous by the non-dangerous or the less dangerous
Develop a coherent overall prevention policy
Give collective protective measures priority over individual protective measures
Give appropriate instructions to employees
Have appropriate arrangements for planning, organisation, control, monitoring and review
Have health surveillance where appropriate
Have access to competent H&S assistance
Establish procedures for serious and imminent danger
Make suitable arrangements for contact with external services
Provide comprehensive information to employees: RA, Preventive & Protection Measures and Identify of Competent Person(s)
Co-operate with other employers who share the same workplace
Regulation 3 of MHSWR is concerned with the Suitable and Sufficient Risk Assessments. Briefly explain the purpose of this section and the duty placed on Employers.
(1) Every Employer shall make a suitable and sufficient assessment of: (a) the risks to the H&S of his employees to which they are exposed whilst they are at work and (b) the risks to the H&S 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 H&S to which he is exposed whilst he is at work; and (b) the risks to the H&S of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.
MHSWR 1999 places duties on the employer and self-employed to provide information relating to significant risks. Briefly explain the scope of information covered relating to information given by Employers to Employees.
Risks identified by the assessment
Preventive and Protective measures
Procedures in event of serious & imminent danger
Identity of competent persons for evacuation
Risks notified by other employers
MHSWR 1999 places duties on the employer and self-employed to provide information relating to significant risks. Briefly explain the scope of information covered relating to information given by Employers to Other Workers.
Risks to H&S arising from the undertaking
To enable them to identify competent persons for evacuation
Any special skills required for safe working
Any requirement for health surveillance
MHSWR 1999 places duties on the employer and self-employed to provide information relating to significant risks. Briefly explain the scope of information covered relating to information given by Employers to Other Employers/Self-Employed/Employment Agencies/Others
Risks to H&S arising from the undertaking
To enable them to identify competent persons for evacuation
Any special skills required for safe working
Specific features of jobs in relation to H&S
MHSWR 1999 places duties on Employers to have arrangements in place to cover H&S. Briefly explain the elements that should be included in any management system.
Using risk assessment methods to decide on priorities and to set objectives for eliminating hazards and reducing risks
Selecting appropriate methods of risk control to minimize risks
Establish priorities and develop performance standards both for the completion of the RA and implementation of preventive and protective measures to minimise the risk of harm to people
Involving employees, through H&S committees or team working
Establish effective means of communication & consultation
Securing competence by the provision of adequate information, instruction and training
Defining H&S Responsibilities
Ensuring everyone with responsibilities understands clearly what they have to do and that they have the time and resources to discharge their duties
Setting standards to judge performance of those with responsibility
Ensuring adequate and appropriate supervision
Having a plan and making routine inspections and checks to ensure that preventive and protective measures are in place and effective
Investigate the immediate and underlying causes of incidents and accidents to ensure that remedial action is taken and lessons are learnt
Recording and analyzing results of monitoring activities to identify themes and trends
Establish priorities for remedial action arising from monitoring and ensuring that suitable action is taken in good time and is completed
Periodically reviewing the whole of the H&S Management System
Define the meaning of Regulation 21 of MHSWR 1999 and use case law.
An Employer cannot escape liability for the commission of an offence by pleading that one of his employees or a competent person appointed by him was responsible.
R v British Steel plc (1994) - Reinforces the concept that corporations cannot avoid liability simply because the act causing the breach was carried out by someone who was not the directing mind of the company; nor can they avoid responsibility simply by taking reasonable care to delegate responsibility.
HSWA Section 36 is concerned with Offences Due to Fault of Other Persons. Define the circumstances under which the Company would be prosecuted for an offence by an Individual
In cases of strict liability, delegation of management functions does not absolve the company from its liability, and it will therefore be equally guilty of a criminal offence committed by one of its employees.
Where there is no strict liability involved and there is no attributable knowledge, connivance or neglect by the company, the "other person" may be personally liable.
HSWA Section 48 states that Sections 21-25 (Notices) and sections 33-42 (Offences and Prosecutions) do not apply to the Crown, which cannot be prosecuted, so enforcement and penalties of HSWA do not apply to the Crown. Upon breach of Sections 21-25 and 33-42 by an individual working for the Crown; detail what would happen.
Crown employees (Civil Servants) may be prosecuted individually for any breaches of the Act which they cause the Crown to commit; this is so, even though the Crown itself cannot be prosecuted.
HSWA Section 37 provides for Offences by Body Corporate. Under this section who may be prosecuted for breaches of the law?
Briefly explain how a successful prosecution would be achieved
Give an example of Case Law
Senior members in the management of a company (as well as the company itself) may be individually liable for breaches of the law. The Board of Directors, Individual Functional Directors and Senior Managers can all be prosecuted under this section.
A successful prosecution would require the prosecution to prove consent, connivance or neglect of the individual director, etc.
R v P (2007) - Focuses on 'neglect' and how it can be distinguished from consent or connivance. To prove neglect the prosecution had to prove whether the defendant had failed to take some steps to prevent the offence by the corporation to which he belonged, if the taking of those steps had either been or should have been his responsibility.