Unit A Flashcards

Question

Purpose of performance measurement

Answer 1

Performance measurement provides information on progress and status of risk controls and strategies and allows you to see: * Current position relative to H&S aims and objectives * How well hazards and risks are being controlled * How the organisation compares to others – benchmarking It also; • Enables learning from failures – corrective action • Helps with decision making regarding resources etc • Maintains and improves the safety management system

Answer 2

* Economic Climate - Healthier countries can afford to give OHS a higher priority * Government Policies – Those who work are likely to be healthier than those who do not, improving workers health will help keep people at work and this can contribute financially to society * Migrant workers – cultural and communication issues effecting health and safety standards * Globalisation – businesses that operate around the world may adopt different standards * Business risk profile – higher risk activities require better OHS standards i.e. nuclear * Societal expectations of equality – can determine standards and priorities for workers who have disabilities etc.

Answer 3

* Compensation costs from civil action cases * Legal fees from civil action * Fines / prosecution costs * Medical treatment costs where not on NHS * Risk control re-design of process * Loss of production / expertise * Lost time for medical assessments etc. * Overtime costs for cover * Costs of recruitment for replacement employee / temp labour * Investigation time * Increased insurance premiums

Answer 4

A H&S practitioner could evaluate their own practice (= performance / standards) by: • Reviewing / evaluating their organisation’s H&S performance and attainment levels / trends - possible indication of the H&S practitioner’s effectiveness • Reviewing the impact of changes / recommendations / interventions they have made • Setting personal objectives / goals / targets • Monitoring / reviewing their performance against targets • Benchmarking their performance against recognised professional standards (e.g. IOSH) / against standards set by other practitioners / against published / recognised standards of good practice • Evaluating feedback from clients • Evaluating feedback from managers during appraisal • Evaluating feedback from others within / outside the organisation • Reviewing failures / unsuccessful initiatives • By seeking advice from other H&S professionals / taking criticism well Could develop (= improve / enhance) their own practice by: • study / gaining recognised relevant qualifications • undertaking ongoing training / updates / CPD • Attending seminars, conferences, lectures • Networking / consulting with experts, professional bodies • Ensuring access to relevant up-to-date information sources - publications, web etc • Seeking advice from other competent professionals • Following a personal development plan • Secondments / placements.

Answer 5

* Civil Claims / Civil Legal Costs / Criminal fines from increased accidents in the workplace * Poor awareness of legal requirements, which will increase the chances of committing an offence. * Poor relations and poor morale as employees see that their health and safety is being neglected * Poor image and negative public relations from a poor safety management system and culture * Poor business efficiency, which will increase costs. * Increased insurance premiums for poor risk control * No confidence from banks and investors, unable to get loans etc.

Answer 6

• Ethics is concerned with moral issues i.e. the judgments we make and our resulting conduct

Answer 7

• Prescriptive details specifically what the duty holder should do in detailed terms • Goal setting specifies a broad objective to be achieved and leaves it to the duty holder to decide the best way to achieve the goal HASAWA is an example of goal setting legislation. for example, "every Employer shall, so far as is reasonably practicable ensure

Answer 8

• Advantages o Little interpretation required o Relatively easy to enforce o Same standard required for all o Does not require a high level of expertise to interpret • Disadvantages o Inflexible o May not be wholly appropriate for the circumstances o Will need more frequent revision as technology advanced

Answer 9

• Advantages o Gives more flexibility on interpretation o Can be related to an actual risk in the workplace o Less likely to need revision o Applies to a broader range of workplaces • Disadvantages o Standard required may not be clear until further guidance is published o More difficult to enforce o Needs a higher level of expertise and interpretation o Will lead to differing standards due to differing interpretation

Answer 10

• A statement of law based on an examination of the facts and the legal issues surrounding them. This is the most important part of a judgment and contains the actual binding precedent

Answer 11

• These may contain a statement about the law which is not based on the facts of the case under review and which will not therefore be part of the decision. This is often held to be a persuasive authority

Answer 12

* Integrity - Honest, law-abiding, avoid conflicts of interest * Competence – Maintains CPD * Respect – Rights and Privacy

Answer 13

A conflict of interest occurs where a person’s professional judgement is influenced by other considerations, such as the possibility of personal gain / benefit.

Answer 14

5. —(1) Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures. In writing if 5 or more employees

Answer 15

Compliance with Turnbull Report supports good H&S management because Turnbull advocates: • Clear policy and commitment • Risk evaluation through a process of risk assessment • Management processes that control risk to an acceptable level • Monitoring arrangements • Clear communication and reporting arrangements • Internal audit processes • Annual Board level review of risk controls • A statement to shareholders on outcomes

Answer 16

* Competence/training of yourself and staff so that everyone has the knowledge, skills and experience to work in a safe and healthy manner and whether external expertise is required * Control – Are people appointed in suitable roles with clear responsibilities * Co-operation – consider regular meetings with employees at all levels to discuss safety issues. Appointment of Safety Representative and Safety Committee to provide a recognised link between employees and management and provision of systems for staff to feedback? * Communication – How is information provided e.g. posters, notices, training packages to employees and visitors. Ensure that feedback is given to employees to encourage maintenance of high Health and Safety standards.

Answer 17

* Allows easier integration with ISO14001 and ISO9001 * May generate publicity and client interest * Customer / client perception of the organisation may be improved - better image * 45001 is an internationally recognised standard * 45001 is easier to benchmark and audit * Allows for independent external registration and verification * Lower insurance premiums * Better overall H&S management

Answer 18

• Time-consuming and expensive • May require additional paperwork / bureaucracy / skills May not be appropriate for SMEs (“over the top”) • HSG65 is the “official” standard used by enforcing authorities and in H&S guidance so despite the change HSG65 will still be the “reference point” for their inspection / audit / investigation • If integrated with 14001 & 9001 H&S can lose its identity and be audited by non-specialists

Answer 19

Common law: case law, established in the Courts via judicial precedents as recorded in Law Reports. Judges’ decisions - may be “binding” or “persuasive”. Lower Courts are obliged to follow binding precedents set by superior Courts. Judge made law Statute law: is a written, codified form of law passed by Parliament in the form of Acts of Parliament (HSWA), or Statutory Instruments (Regulations and Orders) setting out legal requirements and imposing duties and responsibilities. Statute law takes precedence over Common law.

Answer 20

* Civil law: is concerned with resolving “torts” Delict (civil wrongs) i.e. disputes between individual parties (e.g. employer and injured employee); concerned with redress - award of damages / compensation; takes place in County & High Courts; burden of proof = “on balance of probabilities”. * Criminal law: involves cases taken by the State (COPF / HSE etc); concerned with establishing innocence or guilt and the setting of penalties / punishment (fines / prison); takes place in Magistrates & Crown Courts; burden of proof = “beyond reasonable doubt”. S 40 HASAWA

Answer 21

* Do not exercise criminal jurisdiction | * Court will hear cases involving action in contract or tort and where the compensation claim does not exceed £50,000

Answer 22

* Summary – can only be dealt with by a court of summary jurisdiction i.e. magistrates. Minor offences. * Triable either way – Depending on the option exercised by the accused and the gravity of the offence. Most health and safety offences fall into this category. Magistrates can impose custodial sentences up to 6 months & Crown courts up to 2 years * Indictable Only – indictment document is drawn up. Mag decides whether sufficient evidence exists to commit the accused to crown court Only for trial. Mag carry out committal proceedings. Act as courts of investigation

Answer 23

Relevant case law is Wilson & Clyde Coal v English [1938] - sets out duties to: • Have arrangements in place to select suitable / safe plant and equipment • Take account of reasonably foreseeable risks when providing plant and equipment • Provide and maintain safe plant and equipment • Introduce systems for inspection, testing, maintenance, repair and the reporting of defects non-delegable nature of the duties. Duties apply to both new and second-hand equipment.

Answer 24

Latimer v AEC Ltd which set out the employer’s duty to: * Provide and maintain reasonably safe premises * Take account of reasonably foreseeable risks when providing work premises * Inspect, maintain and repair work premises

Answer 25

Employment Tribunal

Answer 26

* Confirm Improvement Notice * Amend Improvement Notice * Extend time period * Withdraw Improvement Notice

Answer 27

• Queen’s Bench Division of the High Court (England & Wales) Court of Session Scotland

Answer 28

* Magistrates court – Unlimited Fine, 6 Months Imprisonment | * Crown – Unlimited Fine, 2 Years Imprisonment

Answer 29

* Section 15 HSWA - Gives power to the secretary of state to make regulations under the act * Regulations must involve regulating or prohibiting H&S matters identified in Schedule 3 HSWA * The procedure for making regulations requires the SoS to consult HSE and other government departments - Health, Industry - and other interested parties (S50 HSWA) - LAs, TUC, CBI etc (consultative documents may be issued) * Alternatively, regulations may be proposed to SoS by HSE * Proposed regulations must lie in House of Commons and House of Lords for 40 days * If no objections / vote against they pass into law, if opposed / vote against - do not pass into law (S82 negative resolution).

Answer 30

• “A decision of a court to which authority is attached”

Answer 31

Purpose of CBA: Provides a methodology for assessing the overall “value” to society of the proposed regulations by comparing the costs of implementing the regulations with the value of the benefits the regulations may produce in terms of reduced accidents / ill-health. Principles of CBA: All costs and benefits are converted to monetary values: • Costs to HSE of administering and enforcing the regulations • Costs to duty holders of complying with the regulations and the likely benefits to business and society as a whole (NHS savings / sickness benefit / tax savings etc) of reduced injury / ill-health. • The conventions of CBA require monetary values to be applied to “pain, suffering, loss of a limb and death” - established protocols are applied. Values are adjusted (discounted) to reflect the timescales over which costs may be incurred and benefits accrue - e.g. the benefits of regulations controlling asbestos impose costs now for benefits which may accrue in 30 years’ time. The total costs and benefits are compared to determine whether the proposed regulations provide “value for money”.

Answer 32

* Agreement between two or more people * May be written, verbal, express or implied * The parties should intent their agreement to have legal consequences

Answer 33

* Must be an agreement between two parties * Consideration - Something of value must be given in exchange for a promise * Legal relations – There must be intention to create legal relations i.e. that there will be legal consequences * No illegal circumstances – There must be no circumstances surrounding the contract which make it unenforceable, void or illegal. * Legal Capacity – The parties must have legal capacity to contract e.g. persons must be over 18yrs old, sound mind

Answer 34

* Contract is older than 6 years – no legal remedy after this period * The parties must have legal capacity – must of be age, sound mind, not drunk etc. * There is illegal circumstances surrounding the contract * Contract is unfair

Answer 35

• The parties should intent their agreement to have legal consequences

Answer 36

* Where the duty is qualified by “shall” without any other word or phrase to lower the standard. * For example Reg 4 PUWER – “Employer shall ensure work equipment is constructed or adapted as to be suitable for the purpose to which is to be used” * The employer must comply no matter what the cost, time and effort of compliance * Prescriptive legislation

Answer 37

* 'Practicable' means that there must be compliance with the duty as far as technical and practical feasibility allows, within current knowledge and invention and with no reference to cost. * Though not an absolute duty, “practicable” is of a higher standard than that of 'reasonably practicable. ' Adsett v. K&L Steelfounders and Engineers Ltd (1953)

Answer 38

* 'Reasonably practicable' requirements are those where a balance is made between risk and cost (in terms of money, time and trouble) and which are met when the cost of further control is grossly disproportionate to any reduction in risk. Controls must be in proportion to risk. * Edwards v National Coal Board [1949]

Answer 39

* Magistrates courts | * Crown Courts

Answer 40

* Appeals could be heard through crown court, then the Court of Appeal (Criminal) and then through to the supreme court. * For any important matters of law, it could be heard straight from magistrates to the High Court - Queens Bench Division before potentially being referred onto the supreme court

Answer 41

* Must be an agreement between two parties * Consideration - Something of value must be given in exchange for a promise * Legal relations – There must be intention to create legal relations i.e that there will be legal consequences * No illegal circumstances – There must be no intention to create legal relations i.e. there will be no legal consequences * Legal Capacity – The parties must have legal capacity to contract e.g persons must be over 18yrs old, sound mind, not drunk etc. * No illegal circumstances – There must be no circumstances surrounding the contract which make it unenforceable, void or illegal.

Answer 42

Issues in a contract could include requirements to: • Comply with H&S legislation • Observe site safety rules • Attend induction training • Appoint competent persons • Monitor H&S performance • Stop work for H&S reasons • Exclude persons from the site for non-compliance Provide safe plant and equipment • Provide welfare facilities • Provide emergency equipment and personnel; Prohibit sub-contracting of work • Provide Employer’s Liability and Public Liability insurance

Answer 43

Employer is vicariously liable for negligent act of contractor if: • The Employer authorises the negligent act • The contractor is under the employer’s control when carrying out the negligent act. • The Employer has some control over the work or co-ordinates the work • If the Employer selects an incompetent contractor • [Issue of control addressed in Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd 1946 - Employer of the crane driver vicariously liable for his negligence because the hirer of the crane did not have direct control over the way he operated the crane.

Answer 44

* The defendant is a qualifying organisation * The organisations caused a person’s death * There was a relevant duty of care owed by the organisation to the deceased * There was a gross breach of that duty – conduct fell far below what is reasonably expected * A substantial element of that breach was in the way the those activities were managed or organised by the senior management

Answer 45

Investigate • Police • HSE • Local Authority Prosecution • CPS in England & Wales PF in Scotland

Answer 46

* Unlimited fine * Remedial action – put right the failings * Publicity order - name & shame

Answer 47

• Before serving a PN an inspector must be of the opinion that activities to which the relevant statutory provisions apply are being, or are likely to be, carried on and that those activities involve a risk of serious personal injury.

Answer 48

* Appeal to employment tribunal * The PN remains in force i.e. the operation of the drill is still prohibited pending the outcome of the appeal - unless the Tribunal decides to formally suspend the PN during the appeal process. * An appeal must be made within 21 days of date of PN being served.

Answer 49

A successful S37 prosecution against the OD would require the inspector to show that: • The PN was lawfully served (as before) • The limited company is a “body corporate” • The OD is an officer of the body corporate (Director, Manager, Secretary) • An offence under the relevant statutory provisions was committed in that the requirements of the PN had been contravened [see Offences under HSWA S33(1)(g)] • The offence was committed with the consent / connivance or as a result of the neglect of the OD Maximum penalties on summary conviction (Magistrates & Crown Court) = Unlimited fine and / or 6 months imprisonment

Answer 50

* Employer terminates employees contact with or without notice * Contract is terminated by employee, who resigns because of employers behaviour – constructive dismissal

Answer 51

Employer owes a duty of care when: * The occupier knows that trespassers are gaining access * The occupier is aware of danger and has reasonable grounds to believe it exists * The risk is one in which the employer may be reasonably expected to protect against

Answer 52

A six year old boy was electrocuted and suffered severe burns when he wondered from a play park onto a live railway line. The railway line was surrounded by a fence however, part of the fence had been pushed down and the gap created had been used frequently as a short cut to the park. The defendant was aware of the gap in the fence which had been present for several months, but had failed to do anything about it. Under existing authority of Addie v Dumbreck no duty of care was owed to trespassers. However, the House of Lords departed from their previous decision using the 1966 Practice Statement and held that the defendant railway company did owe a duty of common humanity to trespassers.

Answer 53

Employers duty: To ensure SFAIRP, the health, safety and welfare at work of all his employees. And anyone who may be effected by his acts of omissions

Answer 54

a) Safe plant and systems at work – provision and maintenance b) Safe use, handling, storage and transport of articles and substances – Arrangements c) IIT&S – Provision d) Safe place of work – maintained includes access and egress e) Safe environment – adequate facilities

Answer 55

* Written Safety Policy – prepare and revise, bring to the attention of employees * Fewer than 5 employees, can be verbal form

Answer 56

* Written Policy 5 or more people employed * Employer shall not expose non-employees to risk to their health and safety – SFAIRP * Self-employed responsible for own safety and others * Contractors, 3rd party ect

Answer 57

* It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access there to or egress there from or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access there to or egress there from available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health. * Non domestic property * Landlords are included i.e. offices, shared areas

Answer 58

It shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work or any article of fairground equipment— a) to ensure, SFAIRP 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 or 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 such 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, SFAIRP, that persons so supplied are provided with all such revisions of information provided to them by virtue of the preceding paragraph as are necessary by reason of its becoming known that anything gives rise to a serious risk to health or safety.

Answer 59

S6 duties on manufacturers, importers, suppliers to: * Ensure SFAIRP, that substances are Safe and Without Risk To Health and safety. when being used, handled, stored, transported * To carry out necessary tests to ensure the above * To provide those supplied with relevant information on H&S hazards and requirements for safe use, handling, storage, transport, disposal etc (see MSDS) * To provide revised information as necessary

Answer 60

* Employer duties under the HASAW Act, section 2, and PUWER may be peripherally relevant but, since it was a manufacturing fault, it is quite reasonable to speculate that it may not have been reasonably practicable for the employer to be aware of the fault. In this respect, the manufacturer’s duties under section 6 of the HSAW Act should have formed the significant part of the criminal aspects. * The Employer’s Liability (Defective Equipment) Act 1969 allows an employee to recover damages from their employer when injured in the course of employment through the use of defective equipment supplied for the employee’s use even though the defect was wholly or partly the fault of a third party (the manufacturer); EL(DE)A imposes strict liability on employer with respect to injury caused by defective work equipment even if defect attributable to a third party; strict liability = liability without the need to prove fault, negligence or intent; the employer can then claim damages against the manufacturer

Answer 61

Relevance: • S6(1) places duties on persons who design, manufacture, (import) or supply articles for use at work • S6(3) places duties on persons who install any article for use at work in premises where it is to be used by persons at work. In this case the contractor is a designer, supplier and installer of a passenger lift (which is an article for use at work). Requirements: • Ensure SFAIRP that the article is designed to be safe and without risks to health at all times when it is being set up, used, cleaned or maintained by a person at work • Carry out / arrange for any testing and examination required to meet the above duty • Ensure that persons supplied with the article of work equipment are provided with adequate information re its use etc (as above), dismantling or disposal • Provide, SFAIRP, revised / updated information as necessary (e.g. serious risk arising) • Carry out / arrange for any research necessary to eliminate / minimise risk to health or safety SFAIRP • Ensure SFAIRP that nothing in the way the work equipment is installed makes it unsafe or a risk to health during use (etc)

Answer 62

Duty not to interfere with or misuse things provided pursuant to certain provisions. • No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions.

Answer 63

Duty not to charge employees for things done or provided pursuant to certain specific requirements. • No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions.

Answer 64

Risk assessment 3.—(1) Every employer shall make a suitable and sufficient assessment of significant hazards that show potential risks (a) The risks to the health and safety of his employees to which they are exposed whilst they are at work; and (b) The risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, Significant Risk

Answer 65

Principles of prevention to be applied 4. Where an employer implements any preventive and protective measures he shall do so on the basis of the principles specified in Schedule 1 to these Regulations.

Answer 66

Health and safety arrangements 5.—(1) Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures. (2) Where the employer employs five or more employees, he shall record the arrangements referred to in paragraph (1)

Answer 67

* Occupier’s Liability Act 1957 imposes a duty of care on the occupier in relation to lawful visitors. * The occupier must “take reasonable care to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

Answer 68

* The employer - if he has behaved negligently (Relevant case - Donoghue v Stephenson, * (Relevant case Caparo v Dickman and other * The employer will have vicarious liability providing employer was acting in the course of employment * Breaking the rules does not remove vicarious liability (Relevant case - Rose v Plenty, Lister v Romford Ice and Cold Storage)

Answer 69

The reason they cannot rely on this as a defence is because a notice excluding liability is NOT classed as a warning as specified in OLA 57. Under s.2(4) OLA 57 a warning will only serve to discharge the occupier’s duty with respect to the danger if it enables the person to whom the duty is owed to be reasonably safe. The warning must therefore be sufficiently clear about the danger and ways of avoiding the danger must be readily available. A notice saying that you will not be held liable doesn’t do that.

Answer 70

* Common law duty * Denial of facts regarding the injury * Out of time / case brought too late, 3 years time limit * No duty of care owed to the injured party * Duty not breached – with reference to foreseeability or reasonableness * Damage not arising from the breach – injured through some other cause * Type of damage not reasonably foreseeable * Volenti non fit injuria * Contributory negligence * Employer being sued, employee acting outside course of employment.

Answer 71

* Accident book entry * First-aider report * Surgery record * Foreman / supervisor accident report * Safety representatives accident report * RIDDOR report to HSE * Other communications between defendants and HSE * Minutes of Health and Safety Committee meeting(s) where accident/matter considered * Report to DSS * Pre-accident risk assessment * Post- accident risk assessment * other relevant information (e.g. training or information records).

Answer 72

* Reinstatement - returned to original job and conditions as though nothing ever occurred * Reengagement – returned to same employer - different job or conditions, terms etc. * Compensation – financial award for loss of employment, etc.

Answer 73

Employment Appeal Tribunal

Answer 74

* To prevent harm * To secure sustained improvement in the management of health and safety risks * To hold those who fail to meet their health and safety obligations to account * Deter against those businesses who fail to meet these obligations and thereby derive an unfair competitive advantage

Answer 75

* Degree of disability * Loss of earnings and/or opportunities * Pain and suffering * Medical costs and expenses * The cost of special adaptations * The cost of care * Loss of amenity * Contributory negligence might result in a reduction of damages awarded.

Answer 76

* Denial of facts regarding the injury * Out of time / case brought too late * No duty of care owed to the plaintiff * Duty not breached – with reference to foreseeability or reasonableness * Damage not arising from the breach – plaintiff injured through some other cause * Type of damage not reasonably foreseeable * Volenti non fit injuria * Contributory negligence

Unit A Flashcards

(101 cards)