The law

Criminal law

Source: Statutory law (made by Parliament, Acts, Regs., Orders)

Purpose: to punish

Sanctions: Fines & imprisonment (Cannot be insured against)

(Magistrates Court up to £20k + up to 6 months imprisonment; Crown Court unlimited fine + up to 2 years imprisonment)

Courts: Magistrates, Crown.

Cases: Prosecutions. State (prosecution) v Individual or company (defendant)

Burden of proof: Prosecution must prove defendant guilty beyond all reasonable doubt

Criminal Liability - Offences - Summary, Indictable, Triable-either-way.

Level of duty - can be absolute, practicable, so far as is reasonably practicable (weigh cost against amount of risk reduction possible - should they be grossly disproportionate, action is not reasonably practicable)

Enforcement - HSE/EHO from Local Authority. Enforcement action - Improvement notice (Served where there is/has been a breach of statutory provision, time limited, outlines required improvements. If appealed against, suspended pending decision). Prohibition notice (served where there is a significant risk of serious personal injury or serious or imminent danger; time limited; prevents activity. If appealed against, stays in force pending decision).

Powers of Inspectors: Enter premises at any reasonable time; bring a constable or other authorised persons; Examine, investigate & require premises to be left undisturbed if necessary; Take samples & photographs; Dismantle & remove equipment or substances; Examine documents and records Seize, destroy or render harmless any article or substance; Issue enforcement notices & initiate prosecution.

Sources of Information: Acts, Regs., ACOPs, Guidance Notes, British & European Standards, Enforcement Agencies.

ACOPs - Practical interpretations of the law, issued by the HSC following approval by Sec of State. Offer advice on good practice. Special legal status - Courts can use them to determine whether a person has acted reasonably - failure to comply with these minimum standards will be used as evidence of a breach of legislation. Defendant has to prove that the measures taken were equal to or better than those suggested by the ACOP.

Examples - ACOPs to the Workplace (Health, Safety & Welfare) Regulations 1992.

Statutory law

Employers Duties under HASAWA 1974

S2(1) Duty of employer to employees - 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.

S2(2) expands 2(1) - employer to provide

2 (2) (a) Safe plant, equipment, systems of work Aspidistra

2 (2) (b) Safe methods of handling and transporting substances and articles Box

2 (2) (c) Information, instruction, training and supervision Classroom

2 (2) (d) Safe place of work, access & egress Door

2 (2) (e) Safe environment & adequate welfare facilities Environment

S2(3) Absolute duty where an employer employs 5 or more employees, to provide a written H&S policy & communicate it to employees

S2(6 & 7) Consult appointed safety representatives & set up H&S committee if requested to do so by 2 or more of them.

S3 Duty of employer (& self-employed) to prevent sfarp, third parties from being harmed by work activities.

Common law

Employers' Common Law Duty of Care

Common law duties are owed by all employers individually to each of their employees. The employer must provide:-

  • A safe place of work
  • Safe plant and equipment
  • A safe system of work
  • Safe and competent fellow employees

Employers have a duty to take all reasonable precautions against hazards he is or should be aware of. Employees have a right to expect that they will not be harmed by the work that they do – either physically or mentally, and that if they are, they have a right to recompense in law.

Main additional points of HASAWA 1974

Places duties on manufacturers, suppliers, and controllers of premises. Prevents charging for safety measures to protect employees e.g. PPE. Set up HSC & HSE. Allows Regs. to be made by short process. Allows for prosecution of managers where offences have been committed with their knowledge or through their neglect. Sets up EMAS.

HSC - Policy makers. Carry out research, provide information and propose legislation.

HSE - Enforcement body. Provide advice. Manage EMAS function.

EMAS - Employment Medical Advisory Service. Advise on occupational health matters; Carry out medical examinations of employees, investigations & research; Provide advice on rehabilitation; Set occupational standards.

Civil law

Source: Common law (made by judges - develops through judicial precedent

Purpose: to provide redress

Sanctions: Damages (Can be insured against)

Courts: County (£50k).

Cases: Civil actions. Individual (plaintiff) v Individual or company (defendant)

Burden of proof: Plaintiff must prove his case on the balance of probabilities.

Civil Liability - arises from an act or omission, which the law regards as entitling one individual, company or organisation to present a legal claim against another. H&S Cases can be based on Tort e.g. negligence or Vicarious liability (arises when one person (who has not committed a wrongful act) is legally liable for the acts of another person that causes injury or damage to a third person. E.g. an employer will be liable for the acts of his employee, which injure a third party, if, when doing the act, the employee was acting in the course of his employment.

Negligence

Tests for negligence: Duty of care owed; duty was breached; breach of duty was the cause of the harm suffered.

Defences: Denial of negligence (e.g. no duty owed), causation (e.g. damaged not caused by breach of duty), Contributory negligence, Volenti non fit injuria (employee knowingly accepted risk), time limits (over 3 years). Damages paid through Employers Liability Insurance (Compulsory for employers to have. Provides protection for employees who have been awarded damages)

Disclaimer: Nothing in this section constitutes legal advice. If you have any queries or concerns as to the law then you should consult a suitably qualified lawyer.

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