Health and Safety at Work Act 1974
Health and Safety at Work Act 1974 is often abbreviated as The HASAWA although in actual fact, no acts of the UK Parliament begin with the word “The”!
It lays out the statutory provisions which employers must comply with regard to enforcement and regulation of health safety and welfare within the workplace. For some reason, it doesn’t apply to domestic servants but even so, a common law provision then applies which is that an employer still has a duty of care over their employees or anyone else connected with them.
The Act imposes a duty on all suppliers of goods and substances for use in the workplace, employers, contractors, employees, and people in control of any work environment including managers and everyone around in general.
Although employers in particular may decide to delegate health and safety in the workplace function to a particular employee or an outside body, the responsibility cannot be delegated and hence, if there is an incident, it is the employers neck that is on the block as opposed to any third party to have the task was delegated.
“Policing” the statutory provisions was originally the remit of the Health and Safety Commission and the Health and Safety Executive which had the power to actually impose unlimited fines and imprisonment for up to 2 years although the police may be involved if there has been a substantial breach of regulations which has led to death. In cases like that, the employer may face a charge of corporate manslaughter.
However in 2008 both the governing authorities, were merged under The Health and Safety Executive (HSE) with a view to bringing all the governing arrangements in line with each other.
The HSE is an agent of the Crown and its tasks include:
- putting forward new regulations
- keeping government departments, employees, employers, representative organisations such as tribunal’s and anyone else necessary with any information they may require
- to promote the Acting general
- arranging research training and information in respect of its functions and imparting that information to employers, employees et cetera.
- Prosecutions for breaches.
Health and Safety at Work Act 1974 came from the Employed Persons (Health and Safety) bill from 1970 introduced by the then Secretary of State for Employment and Productivity, Barbara Castle who later became Minister of Transport. The bill did not go anywhere and the matter was resurrected again in 1974 but once again didn’t go anywhere until there was a change of government in late 1974 when the new Labour Government got it passed.
Health and Safety at Work Act 1974 has been added to over the years and one notable addition is the Control of Substances Hazardous to Health Regulations 2002 locally known as COSHH regulations which provides regulation for, amongst other things, labelling and handling of hazardous substances.
There are also the Personal Protective Equipment at Work Regulations 1992 which governs the use and supply of protective equipment such as gloves, overalls, goggles, helmets et cetera and also the Health and Safety (First Aid) Regulations 1981 which oversees first-aid provisions in the workplace.
The objective of the Health and Safety at Work Act 1974 is to:
- make sure that people in the workplace are kept safe and their health and welfare is protected
- ensure control of hazardous including explosive and flammable and otherwise dangerous substances including preventing theft or unlawful use of them.
The duties under the Act are imposed on a wide range of people and entities.
Duties of employers to employees
Under Section 2 of the Health and Safety at Work Act 1974, it lays down the duty of every employer to ensure as far as is reasonably practicable, the health, safety and welfare of all employees in the workplace.
This extends to:
- keeping it in a condition that safe and without risk to health
- keeping access to and egress from it without risk
- ensuring safety and absence of risk to employees and others health in connection with the use, handling, storage and transport of articles and substances
- ensuring that adequate arrangements for welfare at work including the provision and maintenance of a working environment that is safe and without risk.
- The provision of instruction training supervision and any other information which may be necessary to ensure health and safety work of employees.
- The preparation of a safety policy which must be brought to the attention of the employees.
Although this duty applies to the employer, it actually passes down all the employees and agents whether employed or self-employed, to ensure the same. Section 3 of Health and Safety at Work Act 1974.
Duties of Premises controllers
Although there is a duty under the Occupiers Liability Acts to keep lawful visitors safe from harm and indeed, to keep unlawful visitors/trespasses safe from harm, that duty is also enshrined in statute under section 4 of the Health and Safety at Work Act 1974. The duty is on whoever is in control of the premises to make sure that any access, entry or exit is as far as reasonably practical quite safe and not a risk to any employee or visitor’s health.
Duties in respect of “articles” and tools.
For the purposes of this duty, an article is defined as plant design for use or operation, whether exclusively or not, by persons at work and an article designed for use as a component by any such plant.
Section 6.1 imposes a statutory duty on any supplier manufacturer or importer of any such article for use in the workplace.
Such a supplier (and of course the employer) must ensure:
- that any such article is safe and without risk when it is being used cleaned or maintained.
- That such testing and examination as may be necessary is carried out to ensure the well-being and safety of anyone that may be affected
- give training and information in respect of any such article
- that any limitations on use with regard to the actual use, maintenance or cleaning are explained.
Any of the above can be done by a third party organisation or person but if any such organisation or person fails in their duty then the liability rests with the employer.
Duties in respect of substances
The same duties in respect of articles and tools apply in respect of substances.
The employer must
- Ensure that anyone using any such substance is providing with any information available although the duty to identify and eliminate any risk as far as possible with regard to use of the substance comes down to the manufacturer who must supply adequate labelling.
- Ensure that adequate information is given to anyone using the substance, with regard to any potential risks that do exist
- carry out such examination and testing as is necessary to ensure the safety of anyone who may reasonably have to use or come in contact or close proximity of any such substance
- ensure that the substances without risk to health at all times when it’s being used, processed or handled, stored or transported
Surprising though it may seem, duties under Health and Safety at Work Act 1974 only apply to businesses or trading organisations even if not for profit. It also includes only matters within their reasonable control.
Whereas under a hire purchase agreement for goods or services, the finance company may have liability under the Sale of Goods Act or the Supply of Goods and Services Act for any failure of the goods or services, the same does not apply if any article or substance is the subject of any finance agreement. The finance company has no liability under the Act.
If an employer imports material into the UK, they do not escape liability because the material was manufactured and purchased in another country.
Governing authorities powers.
Since 2008 the Health and Safety Executive (HSE) lays down the rules and regulations (subject to any statutory requirements) and carries out enforcement.
HSE inspectors have, in many cases, quite Draconian powers.
- enter the building if they suspect there are any breaches of the act
- they can do so with the police if they have reasonable cause to suspect that any serious obstruction is likely to occur to the exercise of their duty.
- examine and investigate anything necessary with a view to enforcing any statutory provision or part of the Act
- take photographs and measurements and recordings for the purposes of their examination and report
- take samples of articles or substances either on the premises or in the immediate vicinity
- take whole articles of plant or machinery or anything else or even parts of it which they suspect may cause danger to health or safety and this could include defective machinery, on guarded machinery et cetera.
- ask any information they like of anyone who they suspect may have any information to assist with their enquiries without the person for example breaching any statutory provision such as the Data Protection Act
- require the production of all records and books and take copies of the same or indeed the originals.
Governing Authorities Enforcement
An HSE inspector can ultimately close a business down although that would be used as a last resort and prior to that, they would normally serve a Improvement Notice on the employer stating which statutory provision is being breached and giving a reasonable time to put it right.
What is reasonable is reasonable in the circumstances. Failure to comply with an improvement notice is a criminal offence.
If the breach is so fundamental and serious that the inspector does not feel that an improvement notice is adequate, he can actually stop the operation immediately.
Any Prohibition Notice can state that whatever the activity is must cease immediately pending rectification of whatever the problem is, give details of why they are of the opinion that there is a breach , specify what it is gives rise to the risk and actually state, in the first instance in simple terms exactly what the problem is.
Breaches of the Act can lead to criminal sanctions. However there is no civil liability for breach of a statutory duty under sections 2-8 of teh Health and Safety at Work Act 1974 but there may be a civil liability for breach of health and safety regulations provided in the various sections. Just because there is no criminal breach does not mean that there is not a breach for civil purposes particularly in respect of any claim in common law negligence if anyone has been injured.
Any such civil claim has to be decided on the balance of probabilities and therefore it only has to be slightly more possible that the was a breach and a claimant’s claim will succeed. If there has been a criminal prosecution, that criminal prosecution would normally be sufficient to swing any civil claim in favour of a claimant if the claimant wants to rely on the outcome of a successful criminal prosecution.
The Health and Safety at Work Act 1974, section 33 creates a variety of different criminal offences for breaches under the Act, breaches of regulations or contravention of any notice and including obstructing any inspector in the lawful exercise of their duty. Remember that their duties are quite Draconian and they can simply turn up and if someone objects, they can ask the police to attend.
Offences under the Act vary in the way they are dealt with. They are either summary offences (dealt with by Magistrates only) or triable either way (Magistrates or Crown Court).
All criminal matters start within the Magistrates court whether they are HSE matters over anything else such as murder, theft, whatever. Some remain in the magistrates court or some will be moved to Crown Court.
The decision as to whether an offence should be tried on indictment in the Crown Court by a judge and jury is made either by the accused who may prefer a judge and jury or by the Magistrates who may decide that their powers of sentencing (maximum six months for one offence or 12 months-2 x six months for 2 offences) are not enough depending on the nature of the breach and any subsequent consequences.
The maximum penalty on summary conviction is a £20,000 fine or 6 months imprisonment per offence with a maximum of two offences being taken into account by the magistrates..
The maximum penalty on conviction on indictment is an unlimited fine or 2 years imprisonment depending on which section of the act has been breached and the nature of the breach and what happened as a result.
The HSE inspectors carry out their duty and take it very seriously. Although there is a right of appeal for anyone served with any notice, to go to the employment tribunal particularly with regard to an improvement notice or a prohibition notice the timescale of appealing is probably going to be unattractive because meanwhile, the notice remains extant.
Liability of the Crown.
When speaking of liability of the Crown, we are not literally talking about the Queen having bottles of sulphuric acid lying around Buckingham Palace with no lids on! We are looking at “the Crown” in the wider sense including local authorities, the police, et cetera. Indeed, the police have their very own piece of legislation in the form of the Police (Health and Safety) Act 1997 which imposes a duty to keep persons who are lawfully detained, in safe custody.
The other instance where the Crown cannot escape liability was with the repeal of the Crown Proceedings Act 1947 which gave the Crown immunity from prosecution. The effect was to allow military personnel to sue the Ministry of Defence for breaches of health and safety regulations.
There have been some reported cases where in adequate training was given and personnel were injured as a result and also, one particular case which springs to mind where a military person was injured whilst up to hijinks in the back of a military truck. The MoD was found liable because firstly the person was able to do this and secondly, those in charge made no attempt to stop it.
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