The Barriers To Good Standards
Complexity - Larger organisations often have more complex arrangements in place and this can be a significant barrier when trying to improve standards.
Rules and Regulations - Internal rules and legal requirements are often seen to be a burden. Employers might see it as too many rules and regulations and it is impossible to keep up with them. Others might see it as getting in the way of work. Often, it is difficult to get people to change, particularly where they can see no obvious benefit.
Conflicting Demands - Balancing the needs of the business with the needs for good standards can be difficult.
Financial Constraints - Limited available funds can cause problems.
Targets - Unrealistic or challenging targets can lead to shortcuts. Conflicting demands on the business and on the employees can lead to confusion and uncertainty. There may be financial constraints on the business that might prevent or hamper good management of health and safety in the workplace. The dominant culture of ‘getting the job done’ results in employees feeling pressure to complete work, even in situations where there is a high risk of injury/harm.
Competition and Cost - For organisations to meet the demands of their customers they must deliver an excellent service/product whilst remaining competitive and cost conscious. When considering all of the requirements of delivering services and products, health and safety represents a cost, often a non-productive cost and one without immediate or obvious return on the investment. As a result, in many organisations and for many individuals, health and safety is seen as a loss to the organisation.
Behavioural Issues - May create barriers to good health and safety standards as employees do not fully understand or appreciate the need for risk controls and consider rules and procedures as hindrances to the work activities. Examples of these issues include the removal of guards on machinery and failure to wear the necessary personal protective equipment.
Basic Definitions
Health - The protection of the mind and the body from illness
Safety - The protection of people from physical injury.
Welfare - The provision of workplace facilities to support well-being and comfort.
Environmental Protection - The measures taken to prevent harm to the environment of the world.
Reasons For Managing Health And Safety
Moral Reasons - The most important reason for managing health and safety is to protect people from harm caused by work.
- Employees should not be harmed from their work
- Many people die or are injured from work every year
- Families are often affected too
Social Reasons - Society must never accept that being killed or harmed by our work is just an ‘occupational hazard’. Employers owe every worker a duty of reasonable care to protect them from harm. Although we might acknowledge that some activities we perform are more hazardous than others, no-one should expect to be killed or injured by our work.
Economic Reasons - Accidents cost businesses a lot of money. Costs could be seen as a DIRECT result of an accident, or INDIRECT which are the hidden, often unseen costs. In addition, some of these costs might be INSURED against and some UNINSURED.
Direct and Indirect Costs
Direct Insured
• Employers’ liability claims
• Public liability claims
• Damage to buildings, equipment and vehicles etc
Direct Uninsured • Fines from prosecution • Repair costs • Sick pay • Increase in insurance premiums
Indirect Insured
• Product liability claims
• Business interruption costs
• Recruitment costs for replacement staff
Indirect Uninsured • Investigation costs • Loss of goodwill • Loss of corporate image • Production delays • Investigation costs • Extra overtime payments
Statute and Common Law
Statute Law:
- Written laws
- Laid down by parliament as “Acts” or “Regulations”.
- Legally binding statutory duties & must be complied.
Common Law:
- Unwritten law (known as case law)
- Based on principles established from previous decisions of courts.
- Used by judges to help make decisions in future cases.
A duty of care is owed by all of us to anyone who could be harmed by our acts or omissions (this is known as the “Neighbour principle”).
Employers must also provide a general common law duty of care to their employees.
Statutory duties can be ‘absolute’ or ‘qualified’:
Absolute duties are those that must be complied with.
Practicable duties are those that must be complied with if they are technically feasible.
Reasonably practicable duties are those that must be complied with only if the cost of controlling the risk is not grossly disproportionate to the degree of risk.
Duty of Care
Employers must provide:
A safe place of work
Safe plant and equipment
Safe systems of work
Safe and competent employees
Criminal and Civil Law
Criminal Law To Punish State v Person Magistrates and Crown No Insurance No Loss Necessary Beyond all reasonable doubt
Civil Law To compensate for loss Person v Person County and High Insurance Loss Necessary Burden of proof
Negligence
To be successful in a negligence case, three things must be satisfied:
- There was a common law duty of care owed to the claimant
- There was a breach of the common law duty of care
- The breach actually caused the loss / Injury
Defences against a civil action for negligence:
- No duty of care was owed to the injured person
- There was no breach of duty of care
- The injury or loss was not caused by the breach
- Contributory negligence (this is a partial defence and will lead to reduced compensation payment if successful)
- Volenti non fit injuria (Volunteered to accept the risk)
- Lack of foreseeability.
Breach of Statutory Duty
To be successful in a civil case for breach of statutory duty, four things must be satisfied:
- The injured person was the class of person the statute was intended to protect
- The injury was the type of injury the statute was intended to prevent
- There was a breach of the statutory duty
- The breach of statutory duty caused the loss
Identify 4 defences that may be used by a defendant in a breach of statutory duty civil case:
- The injured person was not the class of person the statute was intended to protect
- The injury was not the type of injury the statute was intended to prevent
- There was no breach of statutory duty
- There was a breach of statutory duty but it did not cause the injury
Vicarious Liability
Think Done by Another
Where someone is injured as a result of the action of an employee, the employer can still be found liable for the injury. This is called Vicarious Liability.
Double-Barrelled
In many personal injury cases civil actions are taken for both negligence and breach of statutory duty at the same time. This is known as a ‘double-barrelled’ action and provides two chances of success (but only one payment would be made if successful).
Consequences Of Non-Compliance
Prison – Some serious offences could result in individuals serving a prison sentence.
Enforcement Notices – Most health and safety enforcing agencies will have the power to serve notices on employers to improve standards n the workplace.
Civil actions – Individuals who have suffered harm as a result of the workplace or the work activities may be entitled to compensation from the employer if it was seen that the harm was caused by the employer’s negligent actions.
Fines - Organisations and individuals could be forced to pay large fines for failing comply with health and safety laws.
Court Systems In England And Wales
Supreme Court
Court of Appeal - Both Criminal & Civil
Criminal Cases - Crown & Magistrate Court
Magistrates Court
These courts hear most health and safety criminal cases. For health and safety offences, they can impose unlimited fines and 6 months imprisonment.
Crown Court
These courts hear the more serious criminal cases and can impose unlimited fines and a maximum of 2 years imprisonment. They can also hear appeals from the magistrates courts.
Civil Cases - High & County
High Court
These courts hear the more serious civil cases where compensation payments are expected to be higher than £50,000.
County Court
These courts hear minor civil cases dealing with compensation claims up to £50,000.
Employment Tribunal
Tribunals deal with employment matters such as safety representative disputes, conditions of service and unfair dismissals.
Employment Appeals Tribunal
The appeals tribunal will hear appeals from the employment tribunal regarding clarification on points of law.
Enforcing Health And Safety Laws
Inspectors working for Local Authorities are responsible for enforcing health and safety laws in shops, restaurants, offices etc.
Inspectors working for the Health and Safety Executive (HSE) will inspect other types of workplace.
As an inspector
I have a range
of powers including:
- Entering a premises at any reasonable time
- Taking a policeman if necessary
- Examining the workplace and investigating problems and concerns
- Directing that the workplace is left undisturbed
- Take photographs
- Conducting tests and ordering that dangerous machinery is dismantled
- Taking statements
- Serving enforcement notices
Actions That Can Be Taken By The Inspector
Take no action
The visit may not have identified any issues and therefore will require no further action.
Give advice
This may be written or verbal and will be practical advice on how improvements can be made.
Improvement notice
This is issued when I consider that a breach of statutory duty has occurred. The notice will tell you what the breach is and when you need to remedy the situation.
Prohibition notice
This is issued when I consider there to be a risk of serious injury. The notice will tell you to stop the activity immediately (unless I defer its commencement due to certain shut down procedures that might be required) until the specified problem is resolved.
Initiate a prosecution
In serious situations I may consider it necessary to initiate legal proceedings.
Formal caution
This is issued where I have sufficient evidence to secure a conviction but a prosecution is not in the public interest.
Appeals Against Enforcement Notices
When to appeal
Appeals against a notice must be made to an employment tribunal within 21 days of service of the notice.
The grounds for an appeal
- Wrong legal interpretation by the inspector.
- The inspector has exceeded his powers.
- Breach of law is admitted but the suggested remedy is not “practicable” or “reasonably practicable” according to the particular statute.
- The time to correct things is too short
- Breach of law is admitted but insignificant.
The effect of an appeal on the notices
Improvement notice is suspended until the appeal is heard
Prohibition notice remains in place during the appeal process
The Health And Safety At Work Etc Act 1974
Employers Duties
Employers: Employers have a general duty to ensure, so far as reasonably practicable, the health, safety and welfare of their employees and others.
This includes providing:
Safe plant and systems of work
Safe use, handling, storage and transportation of articles and substances
Information, instruction and training
Safe place of work with safe access and egress
Safe working environment with adequate welfare facilities
A written health and safety policy (where 5 or more people are employed).
Employers are not allowed to charge their employees for things done or provided in the interests of health and safety at work.
The Health And Safety At Work Etc Act 1974
Occupiers Duties
Occupiers: Those in control of non-domestic premises must ensure that there are no risks to the health and safety of anyone who visits or works there.
The Health And Safety At Work Etc Act 1974
Manufacturers Duties
Manufacturers: Those who design and manufacture goods for use at work must ensure they are safe for use.
The Health And Safety At Work Etc Act 1974
Employees Duties
Employees: Employees have two basic duties:
To take reasonable care for the health and safety of themselves and others who may be affected by their acts or omissions; and
To co-operate with their employer to allow them to comply with their legal obligations.
The Health And Safety At Work Etc Act 1974
Duties - All People
All People: It is an offence for anyone to misuse or tamper with anything provided in the interests of health and safety.
Management Of Health And Safety At Work Regulations
The Management of Health and Safety at Work Approved Code of Practice (ACOP – L21) has been withdrawn and is no longer available. If you are looking for information on how to manage risks in your business, HSE has a suite of guidance that will be able to help.
The Management of Health and Safety at Work Regulations 1999 require
employers to put in place arrangements to control health and safety risks. As a
minimum, you should have the processes and procedures required to meet the
legal requirements, including:
- a written health and safety policy (if you employ five or more people);
- assessments of the risks to employees, contractors, customers, partners, and
any other people who could be affected by your activities – and record the
significant findings in writing (if you employ five or more people). Any risk
assessment must be ‘suitable and sufficient’; - arrangements for the effective planning, organisation, control, monitoring and
review of the preventive and protective measures that come from risk
assessment;
-access to competent health and safety advice, for example see the
Occupational Safety and Health Consultants Register (OSHCR) at
www.hse.gov.uk/oshcr;
-providing employees with information about the risks in your workplace and
how they are protected;
-instruction and training for employees in how to deal with the risks;
-ensuring there is adequate and appropriate supervision in place;
-consulting with employees about their risks at work and current preventive and
protective measures.
-employers have duties to protect young people (Under 18 years old) and new and expectant mothers from the risk of harm. This will include considering their specific issues within the risk assessments and putting in place arrangements to protect them from harm.
