There are two main types of law affecting health and safety in England.

Civil Law

This is concerned with the rights and duties of individuals towards each other and aims to establish liability.

Legal cases over the years have established that an employer owes a duty of care not to harm his employees.

If an employee suffers an accident or becomes ill and he believes it is caused by his employment and he wants to claim damages then he must prove that his employer was “negligent.”

In order to prove this negligence in a court of law the employee would need to prove:

• the employer owed him a duty of care and
• that duty was breached and
• that damage or injury occurred as a result of that breach.

If negligence was proved then the employee would be awarded damages (financial compensation).

Employers may insure against claims for negligence.

Contributory negligence

In some cases it may be that the person contributed towards the injury or damage by their own negligence.  This is known as “contributory negligence” and could result in a significant cut in the employee’s compensation depending on how much they contributed to the incident/damage.

Vicarious liability

This concept goes back to the days of the master/servant relationship in which the master was responsible for the “torts” or wrongdoing of his servants.

In health and safety terms this means that the employer is responsible for the actions of his employees “whilst they are working under the terms of their employment.”

Employees of the County Council are therefore covered by the Council’s insurance unless they are working outside the terms of their employment.

Occupier's Liability Act

Under this legislation, occupiers of premises owe a common law duty of care to all lawful visitors.

The occupier may also have a duty of care to trespassers when:

• He knows there is a risk because of the state of the premises.
• He knows trespassers will be on the premises.
• The risk is one the occupier could reasonably be expected to provide protection against.

This branch of law is concerned with offences or crimes against the state and is established by Acts of Parliament.

• It aims to establish guilt not liability.
• It cannot be insured against.
• It is not vicarious.

For example, if a member of staff were to exceed the speed limit (a criminal offence) whilst on Council business the Council would not be liable for any fine or prison sentence imposed.

This is the main piece of health and safety legislation in England and is Criminal Law.

Penalties under this act range from fines to imprisonment in certain cases.

The Health and Safety at Work Act is an “enabling act” and lays down broad duties on employers and employees.

The Employer's Duties to his Employees (Section 2)

General Duty

It shall be the duty of every employer to ensure, so far as is reasonably practicable the health, safety and welfare at work of all his employees.

Particular Duties

Safe Plant and Systems

Every employer is responsible for 'the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable safe and without risks to health'.

Safe Use of Substances and Articles

Every employer must make 'arrangements for ensuring so far as is reasonably practicable the safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances'.

Instruction and Training

Every employer is responsible for 'the provision of such information, instruction, training and supervision as is necessary to ensure so far as is reasonably practicable the health and safety at work of his employees'.

Safe Workplace

Every employer is required 'so far as is reasonably practicable as regards any place of work under the employers control, for the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks'.

Safe Environment and Welfare Facilities

Every employer is responsible for 'the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable safe without risks to health and adequate as regards facilities and arrangements for their welfare at work'.

Safety Policy

It shall be the duty of every employer to prepare and as often as may be appropriate, revise a written statement of his general policy with respect to the health and safety at work of his organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all his employees.

The Employers Duties to Non Employees (Section 3)

It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable the health and safety of persons not in his employment.

Employees Duties (Sections 7 and 8)

It shall be the duty of every employee while at work:

• 'to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work;'
• 'as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with;'
• 'not to 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'.

Controllers of Premises (Section 4)

Anyone with control of non domestic premises used by people who are not their employees have a duty to ensure so far as is reasonably practicable that the premises, means of access and egress and any plant or substances provided for use are safe and without risks to health.

Designers, Manufacturers, Importers, and Suppliers of Articles and Substances Used at Work (Section 6)

Have a duty to ensure that articles and substances so far as is reasonably practicable are safe and without risks to health to use.

The general duties outlined above are further developed by means of Regulations specific to certain topics e.g. Manual Handling, Display Screen Equipment Regulations etc.

In addition to the Regulations it is now common practice for Regulations to be accompanied by Approved Codes of Practice (ACOPS) or Guidance Notes. These documents give guidance on “best practice” to comply with the legislation.

Failure to comply with an ACOP is not in itself an offence but the person must prove that they complied with the relevant legislation in an equal manner.

Types of Statutory Duty

There are two main types of duty in the Health and Safety at Work Act.  These duties allow the employer to allocate resources to control hazards depending on the level of the hazard and the possible outcome.

Absolute Duty

This applies to high-risk circumstances when the level of risk would be unacceptable unless certain steps were taken.  In this case the words “must” or “shall” appear in the legislation and the employer must comply with the requirements or cease the activity.

(In certain circumstances there may be a defence in law that the person exercised all due diligence to avoid committing the offence.)  (Food Safety Act.)

Qualified Duty

There are two main types of qualified duty:

As far as practicable

This means something less than physically possible taking into account current technical knowledge and feasibility.

As far as reasonably practicable

This phrase qualifies almost all of the general duties in the Health and Safety at Work Act and allows the employer to balance the cost of action (in terms of time and inconvenience as well as finance) against the risk.

If the risk is insignificant compared to the cost then the steps do not need to be taken.

If, however, the risk is high then it must be eliminated or controlled.

Next to the Health and safety at Work Act itself these are probably one of the most important and far-reaching sets of Regulations.  It is these regulations which specify the need for “Risk Assessment” (see guidance later in this document).

The following is a short précis of the requirements of these Regulations.

Regulation 3 - Risk Assessment

Regulation 4 - Principles of prevention to be applied

Regulation 5 

• Health and safety arrangements
• Planning
• Organisation
• Control
• Monitoring
• Review

Regulation 6 - Health surveillance

Regulation 7 - Health and safety assistance

Regulation 8 - Procedures for serious and imminent danger and for danger areas

Regulation 9 - Contacts with external services

Regulation 10 - Information for employees

Regulation 11 

• Co-operation and co-ordination
• Appointment of health and safety co-ordinator
• Person in control

Regulation 12 - Persons working in host employers' or self-employed persons' undertakings

Regulation 13 - Capabilities and training

Regulation 14 - Employees' duties

Regulation 15 

• Temporary workers
• Fixed-duration contracts
• Employment businesses
• Self-employed

Regulation 16 - Risk assessment in respect of new or expectant mothers

Regulation 17 - Certificate from a registered medical practitioner in respect of new or expectant mothers

Regulation 18 - Notification by new or expectant mothers

Regulation 19 - Protection of young persons

The Management of Health and Safety at work Regulations 1999 (MHSW Regs) require every employer to make a suitable and sufficient assessment of the risk his/her work activities may present to:

• Employees
• Non-Employees.

A risk assessment is a careful examination of the aspects of work activities (i.e. hazards) which could cause harm to people, so that an assessment can be made whether enough precautions (control measures) have been taken or whether more should be done to prevent harm (i.e. risk).

The purpose of the risk assessment is to minimise the risk of anyone becoming ill or getting hurt as a result of a work activity and to comply with the law.

(See Section 2.1 of BCC Policies and Procedures for detailed information on risk assessment.)

Health and Safety Enforcement

Health and safety law is enforced either by Local Authority Environmental Health Officers (EHO's) or Health and Safety Executive Inspectors (HSE Inspectors of Health and Safety).  It depends on what the undertaking is as to who enforces, but in the majority of cases within the County Council, enforcement will be by the HSE.  In some cases involving environmental health issues, e.g. kitchens, enforcement may be by EHO's.

Inspectors have considerable powers including the right of entry at any reasonable time.  They also have the following sanctions available to them.

Bucks Fire and Rescue Service are the enforcing authority for Fire Regulations in the Workplace (see Section 3.3).

 

Improvement Notices

Issued where a breach of law is occurring. The notice will require that the contravention is addressed within a specified time.  (A minimum of 21 days must be given in order for appeals to be considered and made to a Tribunal.)  Non-compliance with the Notice is an offence and may result in prosecution.  But, when an appeal is made in respect of an Improvement Notice, the Notice is suspended until the appeal is heard and disposed of.

Prohibition Notices

Issued where there is a high likelihood of serious personal injury.  The process, area etc.  which has given rise to the Notice being issued must cease immediately and may not be restarted until the process, area etc. has been addressed and remedied.  Prohibition Notices usually take effect immediately, but may be deferred by the Inspector.  Appeal against the Notice must be made within 21 days of issue. The requirements of the Notice must still be observed until the Appeal has been heard and disposed of.

Penalties and Prosecutions

An Inspector may decide to prosecute, instead of, or as well as issuing a Notice. In the first instance this will take place in the Magistrates Court (England and Wales) or Sheriff’s Court (Scotland). Upon conviction, the Court can impose fines of up to £20,000 per offence. 

Additionally, fines of up to £2,000 per day can be imposed for non-compliance with an Improvement or Prohibition Notice.  In serious situations, the case may be dealt with by Crown Court (England and Wales) or by Sheriff Court - Solemn Proceedings (Scotland). 

These Courts can impose unlimited fines and for specified offences imprisonment for up to 2 years.  If the facts warrant such action - any person, as well as the "body corporate" may be subject to prosecution.

BCC

For general advice:

Health & Safety Team:
Tel. 01296 382222  E-mail hrservicedesk@buckscc.gov.uk

In case of Asbestos related incidents:
Contact your Building Surveyor or Building Maintenance on 01296 383238

Information regarding claims or insurance:
Rachel Ruddy - Insurance Manager

For Occupational Health advice, in the first instance contact your Human Resources Officer.

External sources of Information

Health and Safety Executive
Woodfield House
Manton Lane
Manton Industrial Estate
Bedford
MK14 7LW
Tel. 01234 220550

Health and Safety Executive:
Website: www.hse.gov.uk

Employment Medical Advisory Service: Tel. 01234 220550

Bucks Fire and Rescue Service:
Tel. 01296 744400  Website www.bucksfire.gov.uk

Unison Health & Safety Representative: Tel: 01296 382026