Topics

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.
• This ‘duty of care’ can be important where there is no particular statutory law covering something, e.g. repetitive strain injury or stress.
• There are 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
  • ensuring safe working systems

Health and Safety at Work Act

• This Act lays down general principles to secure and provides a broad framework within which health and safety law can be regulated.
• The Act is couched in general terms and the duties on employers are qualified with the words ‘so far as is reasonably practicable’.
• It imposes criminal liabilities on employers. Recent developments have seen the jailing and/or heavy fining of some company directors for breaches of the Act.
• 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 and bring the policy to the attention of its staff.
• 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 must ensure that their activities do not endanger anybody not in their employment.
• 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.
• Its not all on the employer – section 7 of the Act 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.

Management of health and safety at work

• The Management of Health and Safety at Work Regulations 1999 are important because they clarify how employers must comply with their duties under the Health and Safety at Work Act 1974.
• Central to the regulations is the requirement that all employers must carry out a risk assessment . This should address what happens in the workplace and must consider all groups of employees and others who might be affected. It must identify employees who might be particularly at risk, e.g. pregnant staff and young workers.
• 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.
• 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 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. Action must be taken to remove, reduce or control any risks identified. If the risk cannot be removed, an employer must temporarily adjust her working conditions or, if that is not possible, offer her suitable alternative work (at the same rate of pay), or suspend her from work on paid leave for as long as necessary to protect her health and safety and that of her child. See HSE guidance .
• Employees can bring civil claims against their employers where they breach the regulations.

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); there is no maximum; see HSE guidance
  • 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
• See also Welfare at Work: guidance for employers

Smoking

• From 1 July 2007 all premises in England must be smoke free if they are enclosed or substantially enclosed. Employers must display prominent 'No Smoking' signs. Company cars must be entirely non-smoking if they might be used by more than one person. 
• Scotland has already banned smoking in 'offices, factories and other premises in which one or more persons work'. 
• Similar prohibitions on smoking come into force in Northern Ireland on 30 April 2007 and in Wales on 2 April 2007. 

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 – its not enough just to make it available. See HSE guidance leaflet .

Manual handling

• 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
• See HSE guidance: Manual Handling Assessment Chart Tool and Getting to Grips with Manual Handling

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.
• See HSE guidance: Working with VDUs and Aching Arms (or RSI) in Small Businesses

Accident reporting

• The law requires the more serious accidents at work to be reported – see the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).
• There is one central contact point for all reports – the Incident Contact Centre, tel: 0845 300 9923 or see the website .
• 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 more than 3 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.
• Records of reportable events must be kept for 3 years.
• Employers of more than 10 people must record all accidents, however minor the injuries.
• There are plans to change the RIDDOR scheme. A review is currently proposing:
  • to scrap the duty on employers to report occupational diseases and some or all dangerous occurrences
  • to change the way in which major injuries are reported - instead of reporting instances that come within the current legal definition of ‘major injuries’, all absences due to work-related injuries that last for 4 or more days would have to be reported officially
  • to require employers to report road traffic accidents involving staff travelling for work-related reasons – these would be covered if the accident involved a fatality, a ‘major’ accident or injuries that involved absences of more than 3 days.

Consulting staff

• 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. See HSE guidance leaflet .
• 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.
• In case employers are tempted to take this duty lightly, they should be aware of a proposed change (from October 2005) to the above regulations which would allow employees to sue their employer if they suffer any detriment as a result of the employer’s failure to consult them. The proposed change is likely to be important where employees could suffer work-related ill-health (i.e. stress-related illness), or in lone worker/ violence at work cases, where after the event it emerges that a number of employees had health and safety concerns.

Stress

• There is no specific law aimed at workplace stress, BUT employers have duties under both common law and statute law which are very relevant to stress issues.
• An employee suffering undue work-related stress can attack an employer on 3 potential grounds – personal injury, contract and unfair dismissal:
  • Personal injury: employers have a duty of care to employees to, for example, provide a safe system of work and stress-related personal injury claims are often made under this heading.
  • Contract: there is an implied contractual duty on an employer to operate a safe system of work and any beach of this duty could be the basis for a breach of contract claim.
  • Unfair dismissal: breach of the implied duty above could lead to a resignation and a claim for unfair constructive dismissal – the breach must be a sufficiently serious one.
• Case law on stress at work took off in 1995 when a social worker successfully sued his employer for personal injury caused by undue work-related stress. Recent case law has provided some helpful guidelines:
  • the harm (injury to health) to the employee must be what is called ‘reasonably foreseeable’ – and this depends on what the employer knows (or ought reasonably to know) about the employee
  • an employer is usually entitled to assume that an employee can withstand the normal pressures of the job, unless it knows of some problem or vulnerability
  • there are no jobs which should be seen as intrinsically dangerous to mental health
  • an employer is generally entitled to take what it is told by an employee at face value, unless there are good reasons to think to the contrary
  • to trigger an employer’s duty to take steps, the indications of harm must be plain enough for any reasonable employer to realise that it should do something about it
  • an employer will only be in breach of its duty of care if it has failed to take steps which are ‘reasonable’ – and the size and resources of the employer are relevant considerations here, i.e. larger employer, more expected
  • an employer who provides a confidential advice service is unlikely to be found to be in breach of its duty of care
• The HSE has published Management Standards for work-related stress. Although these do not have the force of law, its likely that any court or tribunal dealing with a stress-related claim will refer to them, so employers should get to grips with them now. Given the amount of publicity over recent years, no court is going to accept ignorance as a defence from an employer.
• See the stress section on the HSE’s website which has all the guidance and information an employer needs.