- Every employer owes a duty, under common law, to take reasonable care to ensure the health and safety of their employees.
- In addition to the general common law duty of care, the Health and Safety at Work Act 1974 (HSAWA) imposes various statutory duties on employers. These are amplified in various regulations, the most important one of which is the Management of Health and Safety at Work Regulations 1999.
- Discrete topics (e.g. hazardous substances, fire safety, accident reporting, asbestos, REACH) are governed by their own specific regulations.
- The maximum fine that may be imposed in the lower courts for most health and safety offences is £20,000.
- The Corporate Manslaughter and Corporate Homicide Act enables organisations (rather than the individuals themselves) to be held liable for manslaughter where gross failures in the management of health and safety cause death. Those guilty of the offence can face substantial fines and publicity orders. To date, it's mostly smaller companies that have been pursued under this legislation.
Common law duties
- Common law is law developed through legal cases, rather than by Acts of Parliament.
- The common law duty on an employer is to take reasonable care of the health and safety of his employees and to guard against reasonably foreseeable risks to health and safety.
- An employer can incur 2 two forms of liability – actual liability and vicarious liability where the employer is held liable for the negligent acts or omissions of its employees.
- Employers’ common law duties are wide-ranging and include ensuring there is a safe place of work; providing safe tools and equipment; ensuring workers are reasonably competent; guarding against reasonably foreseeable risks of injury; and ensuring safe working systems.
Health and Safety at Work Act
- The Health and Safety at Work Act (HSAWA) lays down general principles to secure and provides a broad framework within which health and safety law can be regulated.
- The HSAWA is couched in general terms and the duties on employers are qualified with the words ‘so far as is reasonably practicable’ - effectively, an employer must continually identify and manage hazards to staff throughout the duration of the employment relationship, taking all reasonable and proportionate steps to ensure an employee's safety in the context of any particular situation.
- The HSAWA imposes criminal liabilities on employers.
- There is an overarching general duty on employers to ensure the safety, health and welfare at work of their employees – this includes the mental, as well as physical health, of staff. In particular, employers must:
- provide and maintain plant and systems at work so that they are safe and without risks to health
- make arrangements for ensuring the safe use, handling, storage and transport of articles and substances
- provide health and safety information, instruction training and supervision
- maintain the workplace (where it is in the employer’s control) so that it, and access to and exit from it, are safe and without risks to health
- provide and maintain a safe working environment and adequate welfare facilities
- Any employer with more than 5 staff must prepare and keep up to date a written statement of health and safety policy.
- Employers must consult safety representatives of recognised trade unions about the making and maintenance of health and safety arrangements and, where requested by 2 or more safety reps, set up a safety committee.
- Employers cannot charge employees for anything done, or equipment provided, for health and safety purposes.
- Personal liability will fall on any director or manager if an offence under the Act has been committed with their consent or connivance or through their neglect.
- The HSAWA also places duty on employees to take reasonable care that they do not endanger themselves or anyone else who might be affected by their work activities.
- The Management of Health and Safety at Work Regulations 1999 clarify how employers must comply with their duties under the HSAWA.
- Your Health and Safety Policy
- Employers' Liability (Compulsory Insurance) Act 1969: a guide for employees and their representatives
- Health and Safety Made Simple
Enforcement of health and safety law
- The Health and Safety Executive (HSE) and local authority environmental health departments are responsible for enforcing most health and safety law at work.
- There are 3 main mechanisms of enforcement: improvement notices, prohibition notices and fines or prison.
- An improvement notice means that the employer must take action to put things right within a specified time - failure to do so can lead to a prohibition notice which will require the employer to stop the operation giving rise to the particular hazard.
- Inspectors can also issue immediate prohibition notices where there is a risk of serious personal injury.
- Breaches of the HSAWA give rise to criminal and not civil liabilities.
- The maximum penalties vary according to whether a conviction is reached by way of indictment or summarily. A summary conviction can lead to imprisonment of up to 1 year, a maximum fine of £20,000, or both. The penalty for a conviction on indictment can be imprisonment for up to 2 years and/or a fine (with no maximum).
Removal of health and safety strict liability
- The Health and Safety at Work Act 1974 was amended (from 1 October 2013) to remove the ‘strict liability’ provisions which meant that employers were automatically liable, regardless of fault, for certain injuries in the workplace.
- Individuals now have to prove negligence on the company’s behalf before being able to pursue a claim.
- Pregnant workers are exempted from the change which means that they continue to have the right to bring a claim for breach of statutory duty for breaches of obligations imposed by the Pregnant Workers Directive.
- The amendment removes strict liability in civil claims only. The change does not affect criminal liability, where the possibility of criminal prosecution for certain strict liability breaches remains.
- Under the pre-existing regime employees could bring proceedings against their employer for a breach of health and safety regulations unless these regulations said otherwise. This reflected a perception that employees injured at work should be compensated by their employers, who are under a legal obligation to be insured against such possibility, rather than be left with no remedy at all.
- A recast s. 47 of the Health and Safety at Work Act 1974 has removed the standard of strict liability from certain health and safety regulations.
- No civil claim may be brought for breach of statutory duty unless a regulation expressly provides for it; this effectively reverses the previous position.
- In almost all cases it will be for the injured employee to rely on common law negligence and prove that his or her injuries were caused by the employer’s negligence.
- Negligence is generally a higher hurdle for employees than a breach of statutory duty - particularly those imposing strict liability - as the standard required of employers is higher; greater emphasis is placed on the ‘reasonable practicability’ defence which balances the expense of potential preventative measures against the scale of the risk.
- An individual, whether a director, manager or worker, can be prosecuted under HSAWA, s. 7 if they have not taken reasonable care for the health and safety of themselves or other persons affected by their acts or omissions.
- Under HSAWA, s. 37 action can be taken against directors, managers and officers where a failure can be attributed to their ‘neglect, consent or connivance’.
- A breach of either of these sections means that a director or manager can face a term of up to 2 years’ imprisonment.
- Company directors may also be disqualified from being a director where they are convicted of an indictable offence in connection with the 'management' of a company.
- See Leading Health and Safety at Work published by the HSE and Institute of Directors.
- The Corporate Manslaughter and Corporate Homicide Act 2007 enables companies to be prosecuted for deaths at work by removing the need to identify an individual who was grossly negligent.
- Both large and small companies in England, Wales and Scotland can be held liable for manslaughter where gross failures in the management of health and safety cause death.
- An organisation will be guilty of the offence of corporate manslaughter (corporate homicide in Scotland) if the way in which its senior management managed or organised its activities caused a person’s death and was a gross breach of a duty of care the organisation owed them.
- Senior management is defined as those persons who play a significant role in the decision-making process about how the company’s activities are managed and organised – the precise answer as to what constitutes senior management will be different in each case, depending on the size and structure of the business.
- The organisation’s conduct will be assessed against a number of criteria, including the extent to which it had breached relevant health and safety law, whether senior managers were aware of the risk the company was running and whether they had sought to profit from the breach.
- A court will consider the attitudes, policies and procedures and accepted practices within an organisation and to take these into account when deciding whether an offence has been committed.
- The offence targets the liability of organisations themselves and does not apply to individual directors or others.
- The Act builds on existing health and safety legislation - an organisation can be convicted of corporate manslaughter/homicide arising out of a particular set of circumstances and can also face prosecution for an offence under any health and safety legislation arising out of some or all of the same circumstances.
- Penalties include substantial fines (at least £500,000), remedial orders and publicity orders. Fines for organisations found guilty of corporate manslaughter should seldom be less than £500,000 and may be measured in millions of pounds. The Sentencing Guidelines identify factors which may increase the seriousness of an offence. These include the foreseeability of serious injury, whether non-compliance was common and widespread, and how far up the organisation responsibility for any breach went. Other factors which will aggravate the offence and raise a fine above the relevant minimum level include the number of deaths and serious injury caused, injury to vulnerable people, failure to heed warnings or respond to near misses of a similar nature, cost cutting, and deliberate failure to obtain or comply with relevant licences. In other health and safety cases where an offence has caused death, the guidelines state that the appropriate fine should seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.
- A remedial order requires an organisation to take steps to remedy any management failure that led to death. Publicity orders require an organisation to publicise the fact that it has been been convicted of the offence, provide details, the amount of fine imposed and the terms of any remedial order made. Such a publicity order should (in the case of companies) ensure that a conviction becomes known to shareholders and (in the case of public bodies such as NHS trusts and local authorities) becomes known to local people. Organisations may also have to include a statement on their website.
- See also the HSE's dedicated resource on corporate manslaughter.
Management of health and safety
- The Management of Health and Safety at Work Regulations 1999 clarify how employers must comply with their duties under the broad responsibilities in the HSAWA.
- Central to the regulations is the requirement that all employers must carry out a 'suitable and efficient' assessment of the risks to health and safety of its employees and of others who may be affected by the employer's work.
- Such a risk assessment should address what happens in the workplace and must consider all groups of employees and others who might be affected.
- Two particular areas should be noted: young workers and new and expectant mothers:
- employers must protect those aged under 18 from risks to their health and safety arising from lack of experience or maturity and must not employ a young person for work which is beyond their physical/psychological capacity; involves exposure to harmful agents; involves the risk of accidents which may not be recognised/avoided because of the young person’s inexperience; or involves a risk to health from extreme cold, heat, noise or vibration
- where an employer receives written notification from an employee that she is pregnant, has given birth within the previous 6 months, or is breastfeeding, it must carry out a specific risk assessment
- The topics covered by the regulations are preventative and protective measures; health and safety arrangements; health surveillance; appointment of safety specialists; procedures for serious and imminent danger; and information and training for employees.
- Employees can bring civil claims against their employers where they breach the regulations.
European Agency for Health and Safety at Work
- Five Steps to Risk Assessment
- Example Risk Assessments
- Health and Safety Training: What You Need to Know
- Office Risk Assessment Tool: 20-minute assessment for low-risk offices
- Managing for Health and Safety
Workplace and the working environment
- The Workplace (Health, Safety and Welfare) Regulations 1992 specify minimum standards for the workplace, the working environment and welfare facilities. They apply to every workplace.
- The following areas are covered by the regulations: maintenance; ventilation; temperature (must be ‘reasonable’, usually at least 16°C, and there is no maximum); lighting; cleanliness; space; workstations and seating; condition of floors; falls or falling objects; transparent surfaces and windows; door and gates; organisation of traffic routes; escalators and moving walkways; sanitary, washing and drinking facilities; clothing and changing; rest and eating facilities.
Personal protective equipment
- The Personal Protective Equipment at Work Regulations 1992 require employers to:
- assess risks and select suitable protection
- ensure that all personal protective equipment (PPE) is maintained, cleaned and replaced and kept in efficient working order and in good repair
- accommodate PPE to protect it from contamination, dirt, loss or damage
- inform and train employees about PPE use and maintenance
- Any PPE provided must be suitable and employers have to take reasonable steps to ensure that staff use the equipment provided properly – it is not enough just to make it available.
- See A Short Guide to the Personal Protective Equipment at Work Regulations 1992.
- There is a general duty under the Health and Safety at Work Act to provide and maintain safe plant and safe systems of work. This general duty is expanded on as regards all equipment used at work in the Provision and Use of Work Equipment Regulations 1998
- Employers must:
- take into account working conditions and hazards when selecting equipment
- ensure that equipment is well maintained and in good repair/working order, and keep maintenance logs up to date
- ensure that equipment is inspected after installation and before being put into service for the first time, or after assembly at a new site/location
- ensure that where specific risks are involved, use is restricted and that any repair, servicing, modification or maintenance is carried out by people who have adequate training
- ensure that appropriate information, instruction and training is given to employees and any supervisors or managers
- The Manual Handling Operations Regulations 1992 apply wherever manual handling operations are carried out, i.e. lifting, carrying or moving any load. There are no maximum weight limits but rather employers have to risk assess the task, load and working environment.
- Employers have to avoid hazardous manual handling operations (so far as reasonably practicable) by:
- redesigning the task to avoid moving the load or by automating/mechanising the process
- carrying out a risk assessment of operations that cannot be avoided
- reducing the risk of injury to as low a level as reasonably practicable, giving particular consideration to providing mechanical help
- providing training and information to employees, including general indications and, where reasonably practicable, specific information about the load
Business in the Community
Display screen equipment
- The Health and Safety (Display Screen Equipment) Regulations 1992 specify minimum safety and health requirements for work with VDUs.
- Employers must assess and reduce the risks to a user’s health from workstations.
- Assessments must be kept up to date.
- If a workstation is shared by more than one user, an assessment must be prepared for each user.
- Users must be given free eye and eyesight tests on request, and further tests at regular intervals. Regularity of testing should be at the clinical judgment of an optometrist or doctor. Testing can either be done in the workplace or, if off site, paid time off must be allowed.
- Where tests show that spectacles are needed, they must be provided free. This is limited to the cost of a basic appliance – an employer does not have to pay for designer frames.
- Periodic breaks from VDU work must be scheduled.
- The Control of Substances Hazardous to Health Regulations 2002 (usually abbreviated to COSHH) cover the control of risks from harmful chemicals and other dangerous substances.
- COSHH applies to chemical substances (e.g. paints and cleaning materials); biological agents; carcinogens; substances that have workplace exposure limits; and dusts.
- Employers must:
- not carry out work that will expose employees to any such substances unless they have made a suitable assessment of the risks
- ensure that, once a potential risk is identified, exposure of workers is prevented or adequately controlled - this is an absolute duty and employers cannot argue that it is not 'reasonably practicable' to use control measures
- monitor exposure to hazardous substances and keep records
- keep health surveillance records for at least 40 years
- give sufficient information, training and instruction about any risks and the precautions that must be taken
- See HSE guidance on COSHH and on health surveillance.
- The Control of Asbestos Regulations 2012 revoked and re-enacted, as of 6 April 2012, the Control of Asbestos Regulations 2006 with some amendments. The changes affect anyone who owns, occupies, manages, or otherwise has responsibilities for the maintenance and repair of buildings that may contain asbestos.
- The 2012 regulations narrow the types of work to which the exemptions apply and some employers carrying out certain types of low risk, short duration work will no longer be exempt from certain requirements.
- Under the 2006 regulations, there are two categories of work: licensed and non-licensed. Non-licensed work is exempt from certain requirements, including notifying the enforcing authority responsible for the site. Under the 2012 regulations, a third category of work is introduced known as notifiable non-licensed work. Work will only be non-notifiable if:
- the exposure to asbestos of employees is sporadic and of low intensity
- it is clear from the risk assessment that the exposure to asbestos of any employee will not exceed the control limit, and
- the work involves:
- short, non-continuous maintenance activities in which only non-friable materials are handled, or
- removal without deterioration of non-degraded materials in which the asbestos fibres are firmly linked in a matrix, or
- encapsulation or sealing of asbestos-containing materials which are in good condition, or
- air monitoring and control, and the collection and analysis of samples to ascertain whether a specific material contains asbestos
- The main consequence is that some types of non-licensed work require employers to:
- provide notification of the work
- ensure workers have a medical examination at least once every three years, and
- keep a record of the type and duration of work done with asbestos for 40 years along with copies of all medical records
- In relation to medical examinations for non-licensed work, a 3-year transition period to 30 April 2015 will apply providing employers with time to put suitable arrangements in place.
- The main duties arising from the 2006 regulations, e.g. to train workers, to plan the work and to put in place suitable control measures remain unchanged. Also, there are no changes to the types of work for which licences are required or the requirements relating to licensed workers.
- The Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulations aim to ensure that chemicals are properly tested before going on the market.
- The burden of proof is on employers to show that a chemical can be used safely and how.
- REACH may apply if employers:
- manufacture or import chemical substances into the EU in quantities of one tonne or more per calendar year
- recover a chemical substance from waste in quantities of one tonne or more per calendar year
- distribute or use chemicals
- handle goods which contain chemicals in some finished products
- Employers will commit an offence if they do not register chemical substances covered by REACH.
- There are some exemptions e.g. radioactive substances, waste and some naturally occurring low-hazard substances.
- Employers should:
- compile an inventory - build an inventory of every chemical that comes into, is part of, or goes out of the business
- know whether they produce or import articles. If they do, they should establish if any substance (which is intended to be released under normal or reasonably foreseeable conditions of use) is present in these articles in quantities totalling over one tonne
- identify any chemicals that may be substances of very high concern
Engineering Employers Federation
- The applicable law is contained in the Regulatory Reform (Fire Safety) Order 2005.
- It applies the risk assessment principles introduced by the Fire Precautions (Workplace) Regulations 1997 and sets a single fire safety regime for all workplaces.
- The duty to carry out a fire risk assessment is placed on a named ‘responsible person’ which, generally speaking, is the employer.
- The responsible person’s duties include:
- assessing the risks to ‘relevant persons’ (any persons, including employees, who are or may be lawfully on the premises)
- keeping the fire risk assessment under regular review
- providing staff training and information to employees on fire risks and safety measures and
- providing and maintaining fire precautions such as fire lighting shafts, clear means of escape, signs, notices, emergency lighting, fire alarms and extinguishers, etc
- The main enforcing body is the local fire and rescue authority.
- The fire authority can issue one of 3 types of notices; an enforcement notice, a prohibition notice or an alterations notice. Failure to comply with one of these notices is a criminal offence
- The situation in Scotland is governed by the Fire (Scotland) Act 2005 and associated regulations made under it, principally the Fire Safety (Scotland) Regulations 2006.
- See HSE guidance on work process fire safety.
- The law requires the more serious accidents at work to be reported (see the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).
- The notifiable events are: a fatal accident; a major injury to someone at work; a major injury to someone not at work; and dangerous occurrences.
- A dangerous occurrence is an injury involving someone at work resulting from an accident and which involves them being unable to do their job for over 7 days; the death of an employee occurring sometime after a reportable injury (but not more than 1 year later); and where someone at work suffers a specified disease. Injuries must be reported within 15 days of the date of the accident.
- Apart from fatal and major incidents/injuries, all other reportable work-related injuries and incidents under RIDDOR are on a mainly on-line system (see HSE Q&As). The 7 forms are:
- F2508 Report of an Injury
- F2508 Report of a Dangerous Occurrence
- F2508A Report of a Case of Disease
- OIR9B Report of an Injury Offshore
- OIR9B Report of a Dangerous Occurrence Offshore
- F2508G1 Report of a Flammable Gas Incident
- F2508G2 Report of a Dangerous Gas Fitting
- Records of reportable events must be kept for 3 years.
- Employers of more than 10 people must record all accidents, however minor the injuries.
- See HSE guidance on RIDDOR.
- Employers must consult staff not covered by union safety representatives, see Health and Safety (Consultation with Employees) Regulations 1996.
- Employers can consult staff directly or via elected representatives. Such representatives have various employment protection rights such as protection from harassment and rights to time off and training.
- Employers have to consult employees:
- before introducing any measure (including new technology) into the workplace which might substantially affect the health and safety of those employees
- on the arrangements they have in place (or propose to introduce) for medical surveillance and for appointing people to assist them with their health and safety duties
- on the provision of information, including the results of risk assessments
- on the planning, organising and delivery of health and safety training
- See HSE guidance Consulting Employees on Health and Safety.
The Policies and Documents section contains a range of forms, policies and procedures and letters and memos covering various aspects of health and safety in the workplace (subscribers only).