Element 1 - Why we should manage workplace health and safety

NEBOSH National General Certificate in Occupational Health and safety

Why we should manage workplace health and safetyElement 1

2Element 1: Why we should manage workplace health and safety

Element 1: Table of Contents

1.0 Learning outcomes and Assessment Criteria 3

1.1 Introduction to occupational health and safety 4

1.2 Morals and Money 5

Moral expectations of good standards of health and safety ......................................................6

The financial costs of accidents .................................................................................................9

1.3 The force of law: Punishment and compensation 15

UK law – branches and sources...............................................................................................15

Civil law liabilities......................................................................................................................18

Criminal law liabilities ...............................................................................................................23

1.4 The most important legal duties for employees and workers 32

The Health and Safety at Work Act 1974 .................................................................................32

Corporate manslaughter...........................................................................................................39

The Management of Health and Safety at Work Regulations ..................................................41

1.5 Managing contractors effectively 47

Planning and co-ordination of contracted work ........................................................................47

Selection and ongoing management of contractors .................................................................49

Construction (Design and Management) Regulations 2015 (CDM) .........................................53


1.0 Learning outcomes and Assessment Criteria

The learner will be able to:

z Justify health and safety improvements using moral, financial and legal arguments

1.1 Discuss the moral, financial and legal reasons for managing health and safety in the workplace

1.2 Explain how the law works and the consequences of non-compliance

z Advise on the main duties for health and safety in the workplace

1.3 Summarise the main health and safety duties of employers and workers in HSWA 1974 and MHSWR 1999

z Help their organisation manage contractors

1.4 Explain how contractors should be selected, monitored and managed


1.1 Introduction to occupational health and safety

Occupational health and safety has continued to evolve from the onset of the ‘Industrial Revolution’ to the present day. Although the objective of protecting the health, safety and welfare of people at (or otherwise affected by) work remains, the priorities and expectations are clearly different.

Prior to the 1830s and 1840s children below the age of ten were employed in factories and mines. By the late 1870s thousands of workers were being killed each year. In 1875 alone 767 railway workers and more than 1000 coal miners were killed in workplace accidents.

As the developed world moves forward into the ‘knowledge age’ the world of work is changing. Manufacturing and heavy engineering become less significant and the service sector and the management of knowledge and information takes on greater significance.

Understanding of the range of workplace hazards and techniques for protecting workers continues to grow and workers expectations for standards of living, work life balance, and good health in the twenty first century are much higher than they have ever been.

The management of occupational health and safety has become a multi-disciplinary affair with a range of specialist professionals interacting with and supporting generalist safety practitioners.


1.2 Morals and Money

Society exerts pressure through three overlapping and interacting spheres of influence, as shown in Figure 1.1. This section outlines the moral and financial drivers for health and safety management. The legal framework for health and safety regulation is discussed at length in section 1.3.

MoralWhat is

right and wrong

LegalPreventionPunishment

Compensation

FinancialInsured and

uninsured costs

Figure 1.1: Moral, legal and financial drivers


Moral expectations of good standards of health and safety

Morals are the codes of conduct, or rules of behaviour imposed by a society regarding what is right and what is wrong. It is clearly wrong for people to be killed or seriously injured, or to suffer mental or physical illness because of their or others work activities.

Although in the UK there are generally good standards of workplace health and safety, a lot of harm is still caused each year.

The Health and Safety Executive (HSE) publish annual statistics of reported cases of workplace injury and illness. As can be seen, the numbers of cases of occupational illness (table 1.2) is significantly higher than the numbers of injuries (table 1.1).

The number of reported accidents for 2017/18 are shown in table 1.1:

Injury Type Reported numbers 2017/18

Fatal injuries (all workers) 144

Notified specified injuries (e.g. broken arm or leg) 18 369

Reported ‘over-7-day’ injury (unable to do normal work for more than 7 days)

52 693

Table 1.1: Numbers of injuries reported 2017/18

The trend for workplace injuries has been generally downwards over the last thirty years but for fatal injuries the trend has been relatively flat since 2012/13.

The main causes of fatal injuries, in 2017/18 were falls from height (26%) and struck by moving vehicle (18%). Over half of non-fatal injuries were caused by slips, trips and falls on the same level (31%) or handling, lifting and carrying activities (21%).

There is substantial under-reporting of non-fatal injuries. The 71 000 RIDDOR reports in 2017/18 is around 1/8th of the 555 000 non-fatal injuries self-reported through the Labour Force Survey.

Data on occupational ill-health is compiled from a number of sources including self-reports, medical reporting systems and the industrial injury disability benefit scheme.

Estimated numbers of cases of work-related ill health self-reported in 2017/18 are shown in table 1.2.


Type of ill health

Total cases (Prevalence) of self- reported

work-related illness (central estimate)

New cases (Incidence) of self-reported

work-related illness (central estimate)

Work days lost (Millions)

All illnesses 1 400 000 541 000 26.8

Musculoskeletal disorders 469 000 156 000 6.6

Work-related stress, depression and anxiety

595 000 239 000 15.4

Table 1.2: Occupational ill-health reports 2017/18

The rate of total self-reported work-related ill health, musculoskeletal disorders and work-related stress, has been broadly flat for several years.

Musculoskeletal disorders are now showing signs of trending downwards, whereas cases of work-related stress, depression and anxiety are increasing.

Table 1.3 shows numbers of workplace deaths attributable to occupational cancers. The total is more than 30x that for fatal injuries.

Causes of death Estimate of deaths each year

Occupational cancers (general) 8 000

Asbestos related cancers 4 000

Table 1.3: Typical numbers annual deaths attributed to occupational cancers

The societal (moral) expectation of safe and healthy workplaces has evolved over time in many countries. The public expectation of good workplace standards currently in the UK is now much higher than it was in the 1950s, and much higher again than it was in the 1800s. In 1819 for example, the Cotton Mills Act was introduced in the UK to prevent children who were under 9 years of age working in cotton mills and limited those under 16 years of age to a maximum 16-hour shift per day.

For more than two hundred years, workers in the UK have organised themselves and campaigned for better working conditions and treatment from their employers. More enlightened, philanthropic employers have also helped to improve conditions over time, as has the introduction of laws such as the several ‘Factories Acts’ passed between 1833 and 1961.


More recently, better education has led to a more informed workforce about human rights and responsibilities, and a greater understanding of risk and accident causation. Significant technical advances in engineering and the greater use of management systems, including human resource, quality, health, safety and the environment are also evident. Other factors that appear to have driven societal expectations for good health and safety standards include the importance of an organisation’s brand or reputation, and the extent of pressure from customers and insurers.

The use of social media and immediate access to health and safety information is now common-place, clearly contributing to societal expectations of safe and healthy workplaces in UK, and the accountability of leaders, managers, supervisors and workers. For example, if something is seen in a workplace that may be breaking health and safety law and is likely to cause serious harm, it can be reported by telephone or online to the HSE to be dealt with as necessary. It is now more ‘morally unacceptable’ for people to be put at risk of serious harm.

Societal expectations for health and safety at work across the world, however, vary enormously. According to the International Labour Organisation (ILO), ‘roughly half the world’s population still lives on the equivalent of about US$2 a day, and in too many places, having a job doesn’t guarantee the ability to escape from poverty’.

Accidents such as the Rana Plaza building collapse which killed 1 135 people (mostly workers in the garment industry), the 45-year life expectancy of workers in some opencast mines due to multiple health and safety risks, and the 152 million child victims of child labour provide stark examples of the worldwide differences in health and safety standards and expectations.


The financial costs of accidents

Accidents clearly cost money as a consequence of injured people, damaged plant and machinery and wasted product.

The HSE estimates that occupational injuries and new cases of work-related ill health cost Great Britain in the region of £15 billion split broadly 2/3 ill-health and 1/3 injuries. Whilst the majority of such costs are thought to fall on individuals (£8.6 billion), employers (£3 billion) and government / taxpayers (£3.4 billion) bear a similar proportion of the costs of workplace injury and ill health.

The costs of highly visible accidents involving large scale loss of life or major property damage as a result of fire and explosion are often determined by official inquiries.

z The BP Texas City fire and explosion in 2005 cost over $21 million in fines, $2 billion in civil claims, and $1 billion in reinstating the site.

z The Buncefield oil refinery fire in 2005 is believed to be the most expensive accident in UK history with a total cost of over £1 billion, including £9.5 million in fines.

Smaller accidents have proved much more difficult to cost as relatively few companies have systems in place to quantify them.

Over thirty years ago the Confederation of British Industry (CBI) gave evidence to the Robens Committee on Health and Safety at Work, stating:


“At the company level, if a readily applied and simple formula could be devised by which the financial loss caused by accidents and

diseases could be measured, it would make a valuable contribution towards reducing industrial accidents and occupational ill health.”

In 1989 the HSE began a series of five case studies with organisations from different industrial sectors with the aim of developing a means accurately identifying the full cost of accidents.

The study findings were published 1993 in a HSE Guidance booklet ‘The Costs of Accidents at Work (HSG96)’ (now out of print).

The five participating organisations / projects were a construction project, a creamery, an independent transport company working with the creamery, a North Sea oil platform, and an NHS hospital. All had a history of average, or better than average health and safety performance.

The study used a definition of ‘accident’ covering a broad range of losses including injury and ill health, damage to property, plant, materials and the environment, and the loss of business opportunity.

All personal injury accidents were included as were all other losses above a minimum reportable level which was set at the minimum unit of product or its financial equivalent.

The study accounted separately for financial and opportunity costs.

Financial costs are the basic costs incurred to return the situation to what it was before an accident happened. This covers both material and labour costs.

Opportunity costs (or lost opportunity costs) include those incurred through people stood idle or being unproductive as a result of dealing with the consequences of an accident, and energy costs from plant running idle and buildings being lit and heated.

Note:

The following should be considered in interpreting the findings:

The key findings of the study are presented in Table 1.4.

1. no major or catastrophic losses were experienced during the study

2. no prosecutions or significant civil claims, were undertaken during the study

3. there was probably under reporting as a result of the minimum level of loss criteria for reporting


4. the financial values quoted are actual 1990 figures and have not been adjusted for inflation.

Business Total loss Annualised loss Representing

Construction £245 075 £700 000 8.5% of tender price

Creamery £243 834 £975 336 1.4% of operating costs

Transport £48 928 £195 712 1.8% of operating costs company 37% of profits

Oil platform £940 921 £3 763 684 14.2% of potential output

Hospital £99 285 £397 140 5% of annual running costs

Table 1.4: HSG96 calculated losses for each organisation

As every business and every incident are different the only accurate way of determining costs is to measure them. The HSE has devised an ‘Incident Cost Calculator’ for the purpose (see Table 1.5).

Incident Cost Calculator

Date and time of incident

Description

Person(s) involved

Dealing with incident (immediate action)

Examples Time spent Cost (£)

First aid treatment

Taking injured person to hospital / home

Making the area safe

Fire fighting

Immediate staff downtime (work stopped)

Other

Table 1.5 (1 of 3): Incident Cost Calculator


Investigation


Staff time to investigate and report

Meetings to discuss incident

Time spent with HSE / LA enforcement officer

Consultants fees

Other

Getting back to business


Assessing / rescheduling work activities

Recovering work / production

Cleaning / waste disposal

Product reworking

Repairing damage

Hiring or purchasing tools, plant, equipment etc.

Other

Business costs


Salary costs of injured person off work

Salary costs of replacement workers

Lost work time

Overtime costs

Recruitment costs for new staff

Contract penalties

Cancelled and lost orders

Other



Action to safeguard future business


Reassuring customers

Providing alternative sources of supply for customers

Other

Sanctions and penalties


Compensation claim payments

Solicitors fees and legal expenses

Staff time dealing with legal case

Fines and costs due to criminal proceedings

Increase in insurance premiums

Other

Other


Total


Insurance policies don’t cover everything and may only pay for serious injuries or damage. All other costs will have to be met by the employer. The amount of these uninsured costs varies between businesses and the types of incident, but is several times more than the costs of insurance.

Figure 1.2 shows examples of accident costs that would not be covered by employers’ liability insurance.


Covering injury, ill-health and damage

Lost timeExtra wages/overtime paymentsSick payProduction delaysFinesLoss of contractsLegal costs

Damage to product, plant, buildings, tools and equipmentClearing the siteInvestigation timeExcess on insurance claimsLoss of business reputation

Figure 1.2: Accident cost iceberg – insured and uninsured costs

Possible costs to an organisation of work-related ill-healthCases of work-related ill-health (as opposed to accidents) involve significant costs to organisations. The HSE estimate that in Great Britain during 2017 / 18, new cases of occupational ill-health cost society £9.7 billion, equivalent to £18 500 per case.

The cost of work-related ill-health to organisations can be categorised across five main areas:

z Sick pay: Occupational sick pay and / or statutory sick pay paid to employees when absent from work.

z Insurance premiums: The cost of Employers’ Liability (EL) insurance premiums and the cost of corporate private health insurance premiums attributable to workplace accidents and work-related ill health.

z Production disturbance: The costs associated with work reorganisation and recruitment and induction of temporary or permanent replacement staff, to maintain output.

z Administrative costs: The costs associated with administering sickness, insurance and compensation claims, and conducting health surveillance.

z Investigations and prosecutions: The internal and legal costs arising from investigations and prosecutions by HSE or local authorities.


1.3 The force of law: Punishment and compensation

z Laws – written codes of conduct setting rules for individual behaviour for the good of society have existed since Egyption times, some 3 000 years BCE.

z The law is the cement of society and an essential element of societal change

UK law – branches and sources

The law in UK is broadly divided into two administrative branches or systems, known as civil and criminal law. Each branch has a different purpose. Any given event, such as an accident at work, may give rise to both civil and criminal consequences.

Criminal law: if minimum legal standards are not met the enforcing authority may prosecute the offender in the criminal courts.

Civil law: if an individual suffers loss (injury / ill-health or death) the victim, or their dependants, may instigate legal proceedings (sue) for damages in the civil courts.

The law is also made in two different ways, i.e. there are two sources of law – common law and statute law.

Common law: historically this meant law that was not local but was common to all of England. More usually the phrase means law that is not the result of legislation. Court decisions establish law through a system of precedents.

Statute law: or legislation is law made by Parliament as an Act of Parliament, or a statutory instrument (e.g. Regulations) made under powers within an Act of Parliament.

Statute law takes priority over common law and may be enacted to address a perceived inequity in the common law. Common law often aids the interpretation of statute law as terms are debated in the courts based on the facts of a real case.

Figure 1.3 shows the relationship between the branches and sources of law.


Criminal Law

Civil Law

CommonLaw

StatuteLaw

Health and Safety at Work

Act

Common Law Manslaughter

Occupiers Liability Acts

Neighbour principle and Duty of Care

Figure 1.3: Branches and sources of law

Civil and criminal consequencesConsider an accident where a worker cuts off two fingers whilst using an unguarded band saw.

The worker may well take a civil action against their employer, blaming the employer for negligently causing their injury and seeking compensation (damages) for their loss. If the worker is successful, the civil court may award damages.

A criminal prosecution may also be taken by the HSE (assuming the accident was reported, or the HSE was otherwise made aware). The purpose of the prosecution would be to establish if relevant health and safety legislation had been breached. If so, the court may punish the person who is guilty of the breach, usually through a fine and / or imprisonment.

The key differences between civil and criminal law are shown in Table 1.7.


Civil law Criminal law

Tort e.g. negligence(In Scotland the term ‘delict’ is used instead of ‘tort’)

Crime e.g. breach of Health and Safety at Work Act or specific regulations

Civil wrong Criminal offence

Wrong to an individual Offence against society

Action taken by injured party Prosecution taken by enforcing authority / Crown Prosecution Service

Heard in civil court Tried in criminal court

Determines liability Determines guilt

Loss necessary for action Loss not necessary for action

Seeks compensation for loss Seeks to punish for breach of law

Liability proved on the ‘balance of probabilities‘

Guilt proven ‘beyond all reasonable doubt’

Can be insured against (Employers Liability Insurance is generally compulsory)

Cannot be insured against

Table 1.7: Differences between civil and criminal law


Civil law liabilities

Note:

In Scotland the term ‘delict’ is used in place of tort

If an employee is injured at work, they may make a personal injury claim in the civil courts. The employee may seek compensation under the tort of negligence, or, if permitted by statute, the tort of breach of statutory duty.

NegligenceNegligence may be explained as ‘careless conduct injuring another’, or a ‘breach of the common law duty of care’. For the injured party (claimant) to succeed in a negligence claim, they must prove on the balance of probabilities:

1. that the defendant (usually the employer) owed him a duty of care

2. that this duty was breached

3. that the claimant was injured as a result of the breach.

1. The duty of carePrior to 1932 there was no generalised duty of care in negligence. The tort was only applied in particular situations where the courts had decided that a duty should be owed, such as road accidents or dangerous goods.

In Donoghue v Stevenson (1932) Lord Atkin attempted to lay down a general principle (now known as the ‘neighbour principle’) which would cover all the circumstances where there could be liability for negligence. He said:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing

my mind to the acts or omissions which are called in question.”

The requirements that must now be satisfied before a duty of care is held to exist were established by Lord Bridge in Caparo Industries v Dickman (1990):

a. foreseeability of the damage, i.e. whether a ‘reasonable person’ would have foreseen damage in the circumstances

b. a sufficiently ‘proximate’ relationship between the parties (i.e. a neighbour relationship)


c. it must be fair, just and reasonable to impose such a duty.

Relationships that are sufficiently proximate to be deemed a neighbour relationship include:

z employer to employees

z employer to contractor and contractors employees

z occupier to authorised visitors.

The common law duty of care owed by an employer to its employees was defined in the case of Wilson’s and Clyde Coal Co v English (1938). In this case, the employer was compelled by law to employ a colliery agent who was in charge of safety in the mine. Nonetheless, when an accident occurred, the employer was held liable. The case confirmed that the employer’s duty of care to his employees was personal and could not be delegated to a manager or safety advisor.

The case also determined that employers must provide:

z a safe place of work and equipment

z safe systems of work

z reasonably competent co-workers.

2. Breach of the duty of careThe duty of care is breached if the defendant has failed to exercise the reasonable care expected of a reasonable person in the circumstances.

3. Breach caused the injuryThe claimant must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm and that the harm would not have occurred ‘but for’ the negligence of the defendant.

Defences against claims of negligenceIn the first instance defences against negligence rely on disproving any of the three steps outlined above, i.e.:

z the defendant did not owe the claimant a duty of care

z the duty of care was not breached (the defendant had taken reasonable care / the loss was not foreseeable / it was an ‘Act of God’)

z the breach of the duty of care did not give rise to the injury.


In addition the following may also be used as a defence:

z the injury was the sole fault of the employee

z the injury was the sole fault of a third party

z the proceedings were not brought within the specified time limit (Limitations Act – discussed below in ‘other considerations’).

Historically the defence of ‘volenti non fit injuria’ (to a willing person no injury is done) was used on the basis that certain trades were inherently dangerous and that the workers needed to rely on their own skill to keep themselves safe. Since the 1940s the courts have been generally unwilling to accept a ‘volens’ defence.

A voluntary assumption of risk can only take place if the claimant had knowledge of the risk and made the choice without being constrained by circumstances from making a free choice.

Contributory negligence (discussed below in ‘other considerations’) may be considered a partial defence. As blame is shared, so is the liability. This provides a means for the employer to mitigate their liabilities and reduce their share of any compensation awarded.

Tort of Breach of Statutory Duty (TBSD)As an alternative to suing for negligence the claimant may be able to show that their injury was caused as a consequence of the defendant breaching a relevant statute.

TBSD may provide a more straightforward course of action as a statutory duty is likely to be more specific than the general duty of care.

Conditions to be met for breach of statutory dutyIt is important to note that a breach of a statute is not sufficient on its own to prove the tort of breach of statutory duty in a civil claim. The following conditions must be fulfilled:

z the statute must apply to the claimant, i.e. an employee can only sue if the statute applies to employees

z the statute must have been designed to prevent the type of injury incurred by the claimant

z the statute must have been breached, (a successful prosecution will aid the claimant’s case)

z the injury must have been caused by the breach of statute.


Recent changesAs a result of concerns regarding potential unfairness, towards employers having to pay compensation to an employee injured as a result of breaches of ‘strict liability’ regulations, the government commissioned a review of those requirements.

Following the review the introduction of the Enterprise and Regulatory Reform Act 2013 and Regulations made under it amended the Health and Safety at Work Act to change the position on suing for TBSD.

Before the change there was a presumption that an individual could sue under TBSD unless the particular statute did not allow it (i.e. had a ‘statute bar’ as the Health and Safety at Work Act always has).

The current position presumes that a case cannot be brought under TBSD unless the particular statute allows it. As an example, of the Management of Health and Safety at Work Regulations 1999 no longer allows actions to be taken under TBSD except that new or expectant mothers are allowed to sue for damages caused by breaches of Regulations 16, 16A, 17 or 17A.

Other considerations

Contributory negligenceContributory negligence arises when the claimant’s own carelessness, or disregard for personal safety, contributes to the injury or loss which arises partly because of the claimant’s own fault and partly because of the fault of another (the defendant).

Damages recoverable in respect of the claim will be reduced to the extent that the court think is fair, having regard to the claimant’s share of responsibility for the damage. It is important to remember that contributory negligence does not provide a full defence against a negligence claim.

Vicarious liabilityIn general terms, vicarious liability is a legal liability imposed on one person, making them liable for the acts or omissions of another person.

It is useful to remember that there are three parties involved in cases involving vicarious liability at work: the employer, the employee, and an injured person.

Therefore, with regard to a personal injury claim for an accident in the workplace, if an employee, acting in the course of normal employment injures another person, the employer will be held vicariously liable for the losses incurred by the injured person.


Limitations Act 1980The Limitation Act 1980 sets a time limit for starting proceedings for claiming compensation for personal injury.

This is primarily three years from the date of the negligence that caused the harm, or in the case of disease three years from the date of diagnosis.

This primary limit may be extended in the following circumstances:

z if the injured person is suffering from mental disability then the time limit does not start to run until mental capacity has returned

z for minors (under 18 years of age on the date that they were injured) the three year period does not start until the eighteenth birthday.

The courts also have discretionary powers to alter the time limits but such discretion is rarely exercised.

Damages‘Damages’ refers to the payment of financial compensation for a tort. In principle the claimant is entitled to full compensation for any losses incurred. The intention is to put the complainant in the same position as if the tort had not been committed.

The damages that can be recovered as a result of a successful personal injury claim fall into two categories:

z General damages – Actual and / or probable loss of future earnings, to be incurred after the case, including costs for physical pain, suffering, impairment, disfigurement, mental anguish, loss of companionship and reduced quality of life. The amount of compensation available for general damages is dependent on the type and severity of the injury or illness, and the duration of the effects.

z Special damages – Quantifiable losses incurred before the case, mainly loss of earnings, earning capacity and medical expenses.


Criminal law liabilities

Framework of criminal health and safety legislationThe framework of criminal health and safety legislation in the UK is illustrated in Figure 1.4 and explained below.

Health and Safety at Work Act

RegulationsExample:

Management of Health and Safety at

Work Regulations

Approved Code of Practice (ACoP)

Guidance

Europe

Regulations apply directly (example: REACH)Directives usually implemented as UK Regulations

•

•

Figure 1.4: Legal framework – criminal health and safety law

The Health and Safety at Work etc. Act 1974The Health and Safety at Work etc. Act 1974 (HASAWA / the Act) is still the main health and safety legislation in the UK. It is an Act of Parliament (primary legislation) that prescribes general duties to all at work, regardless of the work activity or context. Failure to comply with a duty under the Act is a criminal offence which may be punished by fine or imprisonment (see Table 1.8).

RegulationsSection 15 of the Act enables the relevant Secretary of State to make health and safety Regulations. Regulations (statutory instruments / secondary legislation) are usually:

z more detailed than the general duties of HASAWA z problem specific (e.g. noise, hazardous substances) z prompted by European Directives z intended to protect employees at work.


Failure to comply with a Regulation is a criminal offence which may be punished by fine or imprisonment (see Table 1.8), or warrant the service of an Improvement Notice to obtain compliance.

The Management of Health and Safety at Work Regulations 1999 (as discussed in Section 1.5) is an example of health and safety regulations that are currently in force in the UK.

Approved Code of Practice (ACoP)An Approved Code of Practice (ACoP) gives practical advice on how to comply with the law.

If the advice in the ACoP is followed compliance with the law is assured in respect of those specific matters on which the ACoP gives advice.

The ACoP has special legal (or quasi-legal) status. In a prosecution for a breach of health and safety law, if it is proved that a relevant provision of the ACoP was not followed, compliance with the law in some other way must be proved.

The Workplace (Health, Safety and Welfare) Regulations 1992 and the Provision and Use of Work Equipment Regulations 1998 (PUWER) are both supported by Approved Codes of Practice (L26 and L23 respectively).

GuidanceImportantly, following guidance is not compulsory and other action may be taken, however, following guidance will normally be enough to demonstrate compliance with the law.

Health and safety inspectors are likely to refer to guidance as an illustration of good practice.

The Health and Safety (Display Screen Equipment) Regulations 1992 and the Manual Handling Operations Regulations 1992 are both supported by guidance documents.

EuropeThe influence and role of the European Union in harmonising health and safety standards has been achieved through European legislation and European standards (Euronorms - EN). The two main sources of European legislation are EU Regulations (which applies directly) and EU Directives (which require legislation from member states).


Levels of statutory dutyDuties in health and safety law may be absolute (i.e. must be done) or may be qualified. The two major qualifications of health and safety law are those imposed by the phrases ‘practicable’ and ‘reasonably practicable’.

Absolute dutiesUsually preceded by the word ‘shall’, an absolute duty must be complied with. For example, employers have an absolute duty to prepare a safety policy (see Element 1.4) and to undertake suitable and sufficient risk assessments (see Element 1.5). These must be recorded in writing where there are 5 or more employees.

PracticableIf a duty is qualified ‘so far as is ‘practicable’ it is a less onerous duty than an absolute one. Practicable means feasible in the light of current knowledge and invention, i.e. if it can be done it must be done. For example, the Provision and Use of Work Equipment Regulations 1998 require that ‘all the dangerous parts of machines shall be guarded to the extent that it is practicable to do so’.

Reasonably practicableReasonably practicable requires the degree of risk (likelihood x severity) of a particular activity or environment to be balanced against the costs (time, trouble and physical difficulty) of taking measures to avoid the risk.

The greater the risk, the more likely it is that it will be reasonable to go to very substantial expense, trouble and invention to reduce it.

If the consequences and the extent of a risk are small, the same substantial expense would be considered disproportionate to the risk and it would be unreasonable to have to incur them to address a small risk.


TimeMoneyEffort

LikelihoodSeverity

Cost

Risk

Figure 1.5.: Reasonably practicable

The size and financial position of the employer are not taken into account in consideration of what is ‘reasonably practicable’.

For example, the Manual Handling Operations Regulations 1992 require that ‘each employer shall, so far as is reasonably practicable, avoid the need for their employees to undertake any manual handling operations at work which involve a risk of their being injured’.

Enforcement of health and safetyThe enforcement of health and safety depends upon the main activity undertaken at a place of work.

Note:

In Northern Ireland the body is referred to as HSENI.

The Health and Safety Executive (HSE) typically enforces at higher risk workplaces such as construction sites and factories.

Local Authorities (Usually Environmental Health Officers – EHOs) enforce at lower risk premises such as retailers, offices and warehousing.

In Scotland investigations and inspections are undertaken by HSE and local authorities, as in England and Wales, but prosecutions are brought by the Procurator Fiscal.

Other relevant enforcement agenciesAlthough not examinable it is worth being aware of the other agencies that may be


encountered when dealing with health and safety incidents:-

The Office of Rail and Road (ORR) is the independent health and safety (and economic) regulator for Britain’s railways. The ORR is also responsible for monitoring Highways England’s performance in the management of the strategic road network.

The Fire and Rescue Services enforce the requirements of the Regulatory Reform (Fire Safety) Order in the majority of premises.

The Environment Agency (and equivalents in Scotland, Wales and Northern Ireland) is joint competent authority with the HSE for major accident hazard sites although their focus is on environmental harm.

The Police will take the lead in any investigation into work-related deaths where murder or manslaughter is suspected although the protocol on work-related deaths advocates a joint investigation with appropriate involvement of the relevant health and safety enforcement bodies.

The Crown Prosecution Service (CPS) is responsible for bringing a prosecution for manslaughter / corporate manslaughter.

Although not an ‘enforcement agency’ Insurance companies are also relevant here in that they are responsible for providing adequate cover and will set their premiums in accordance with the risks of the business concerned (see also section 1.2 above).

Powers of health and safety inspectorsAll authorised health and safety inspectors have the same powers, regardless of the area of enforcement. Inspectors can:

z enter any premises which they think it necessary to enter for the purposes of enforcing health and safety law, the power of entry can be exercised without permission or prior notice, at any reasonable time or at any time if dangerous

z take a police constable with them if they have reasonable cause for thinking they might be seriously obstructed

z take any other person authorised by their enforcing authority, such as a specialist, and any equipment needed

z order that areas be left undisturbed

z take measurements, photographs and samples

z carry out tests on, and / or confiscate articles and substances


z inspect and take copies of relevant documents

z Seize any article or substance which they have reasonable cause to believe presents an immediate danger of serious personal injury and have it made harmless, by destruction if necessary

z interview and take written statements from anyone they think might give them information relevant to their examination or investigation

z any other power deemed necessary to carry into effect any of the relevant statutory provisions within the inspector’s field of responsibility.

Enforcement actionInspectors have a range of enforcement options and tools available including:

z informal advice z improvement notice

z prohibition notice z prosecution.

The best option(s) will be chosen in each case. There is no hierarchical escalation route from informal advice to prosecution.

Informal adviceBased on the level of risk and the level of management co-operation an inspector may deal with a situation informally by verbal advice or an explanatory letter. Provided agreed actions are completed on time, no formal action will be taken.

Improvement noticeAn improvement notice may be served whenever health and safety legislation is being contravened. An improvement notices will specify the breach of legislation and may specify a means of complying. It has to allow a reasonable time (minimum 21 days) to complete any specified works.

Any appeal against an improvement notice must be made to the employment tribunal with 21 days of the date of service of the notice. The requirements of the notice are suspended until the appeal is heard.

The employment tribunal may uphold, cancel or vary the improvement notice as a consequence of the appeal.

Prohibition noticeA prohibition notice may be issued when in the inspector’s opinion there is a risk of serious personal injury. The notice prohibits the carrying on of the work activity giving rise to the


risk of injury.

If the risk of injury is imminent, the notice must take immediate effect and stop the work activity at once. If not, the prohibition notice is deferred, specifying the time by which the work activity must cease.

Any appeal against a prohibition notice must be made to the employment tribunal with 21 days of the date of service. The Prohibition Notice stays in effect until the appeal is heard.

ProsecutionAny breach of legislation may give rise to a prosecution in the criminal courts. Any breach of legislation may give rise to a prosecution in the criminal courts. Less serious criminal cases go for summary trial in one of around 330 magistrates’ courts (magistrates are not lawyers or judges and there is no jury). More serious cases go on indictment to the Crown Court (before a judge and jury).

Health and safety offences are usually ‘triable either way’. This means that the case may be heard ‘summarily’ in a magistrates’ court or on ‘indictment’ in the Crown Court.

Some minor offences are only triable summarily in a magistrates’ court, e.g. falsely pretending to be an inspector or intentionally obstructing an inspector, and offences under the Employers’ Liability (Compulsory Insurance) Act 1969.

The sanctions available to the Crown Court are greater than in a magistrates’ court. Table 1.8 shows the maximum sentences available to each court for breaches of HASAWA and health and safety regulations.

Breach Magistrates’ court* Crown Court

HASAWA Section 2-8 Term not exceeding 6 months* and / or Unlimited fine

Term not exceeding 2 years and / or Unlimited fine

Failure to comply with Improvement Notice, Prohibition Notice, or Court Remedy Order

Term not exceeding 6 months* and / or Unlimited fine



Breach Magistrates’ court* Crown Court

Regulations Term not exceeding 6 months* and / or Unlimited fine


* For offences committed after 12 March 2015 (Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012)

Table 1.8: Maximum sentences for health and safety offences

Simple caution / formal caution

Note:

Legally the term ‘simple caution’ is correct. However, the HSE tend to favour the term ‘formal caution’.

A simple caution is an alternative means for dealing with low-level, mainly first time offending when specified public interest and eligibility criteria are met.

A simple caution is appropriate where:

z the offender makes a clear and reliable admission of the offence

z there is a realistic prospect of conviction if the offender were to be prosecuted

z the offender agrees to receive the simple caution.

A repetition of a breach that was the subject of a formal caution will normally be treated in the same way as a failure to comply with an enforcement notice, i.e. with criminal proceedings.

Formal cautions are recorded and can be brought to the attention of the court where relevant to any subsequent offending.

Under HASAWA S.40, the onus of proving that the qualified duty has been fulfilled rests with the accused, not the prosecution (see Element 1.4).

Some regulations include a defence in respect of particular ‘absolute duties’. For example, the Electricity at Work Regulations 1989 (Regulation 29) provide a defence for any person to prove that they took all reasonable steps and exercised all due diligence to avoid the commission of that offence (as specified).

In some cases, it may also be possible for the accused to argue that they are not the duty holder (e.g. an employer or a person who has control of premises).


Fees for Intervention (FFI)The HSE now operates a Fee for Intervention (FFI) cost recovery scheme, which came into effect on 1 October 2012.

Under the Health and Safety (Fees) Regulations 2012, where there is or has been a ‘material breach’ of health and safety law, those responsible for the breach are liable for recovery of HSE’s related costs, including inspection, investigation and taking enforcement action.

The fee payable by duty holders found to be in material breach of the law is currently £154 per hour.


1.4 The most important legal duties for employees and workers

The Health and Safety at Work Act 1974

The key objectives of the Health and Safety at Work Act 1974 (HASAWA) that are still relevant today are:

z securing the health, safety and welfare of people at work

z protecting people other than those at work against risks to their health and safety arising out of work activities.

HASAWA applies to all types of work activity and situations and imposes duties on everyone concerned with work and workplace activities, including: employers, the self-employed and employees, manufacturers, designers and suppliers, and people in control of premises.

Duties are imposed on individuals and employing organisations be they corporations, companies, charities, or government departments. The duties are intended to encourage employers and employees to take a wide ranging view of their roles and responsibilities.

Note:

Learners are not expected to remember section or regulation numbers, but they will need to be familiar with the requirements of the legislation

The main duties of the Act are summarised below.

Section 2 – General and specific duties of employers to their employees1. Every employer has to ensure, ‘so far as is reasonably practicable’, the health, safety

and welfare at work of all his employees.

2. Examples of the extent of the general duty include (so far as is reasonably practicable):

• the provision and maintenance of plant and systems of work that are safe and without risks to health

• arrangements for ensuring health and safety with the use, handling, storage and transport of articles and substances

• the provision of information, instruction, training and supervision to ensure, the health and safety at work of employees

http://www.legislation.gov.uk/ukpga/1974/37/section/2


• maintenance of any workplace, under his control, in a healthy and safe condition, including any means of access and egress

• the provision and maintenance of a safe and healthy working environment with adequate facilities and arrangements for the welfare of employees at work.

3. The employer has an absolute duty (shall) to prepare and revise, as necessary, a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements in force for carrying out the policy.

The statement and any revision for it have to be brought to the notice of all of employees.

Subsections 4. and 5. allow the Secretary of State to make Regulations allowing:

• recognised trade unions to appoint safety representatives to represent the employees in consultation with the employer

• direct election by employees of safety representatives from amongst the employees.

6. The employer has an absolute duty to consult safety representatives regarding arrangements for enabling employee cooperation in promoting and developing and checking measures to ensure the health and safety at work of the employees.

7. The duty of every employer, if requested by safety representatives, to establish a safety committee to keep under review the measures taken to ensure the health and safety at work of his employees.

Section 3 – Duties of employers and self-employed to othersEvery employer and self-employed person has a duty to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment, who may be affected, are not exposed to risks to their health and safety.

Self-employed persons are also required to protect themselves from risks to their own health and safety.

The section also allows for Regulations to be made requiring the employer / self-employed person to provide relevant health and safety information to non-employees.

Section 3 was amended by the Deregulation Act 2015.

From October 1 2015 the self-employed person’s duty to conduct his undertaking in such a way that ensures, so far as is reasonably practicable, that the health and safety of persons not in his employment is not adversely affected only relates to undertakings of a ‘prescribed description’.



Prescribed activities are those involving work in agriculture, asbestos, construction, gas installation, genetically modified organisms and the railways.

R v Associated Octel Ltd (1994)

Associated Octel Ltd maintained its plant and equipment during factory shutdown each year. In 1990, this work was carried out by Resin Glass Products (RGP) Ltd as contractors. An employee of RGP cleaning the inside of a tank was badly burned because of an explosion inside the tank.

RGP Ltd was convicted under section 2 of the Act and Associated Octel Ltd. was convicted under section 3 for failing to protect non-employees from health and safety risks from their ‘undertaking’.

Associated Octel appealed arguing that RGP was an independent contractor and that the work was not part of Associated Octel’s ‘undertaking’ and that s.3 did not involve liability for the actions of independent contractors.

The appeal was dismissed. The word ‘undertaking’ means ‘business’ or ‘enterprise’ and this activity was clearly part of Associated Octel’s ‘undertaking’ as the tank was part of their plant and the work formed part of their planned maintenance programme.

Associated Octel should have specified the necessary requirements for avoiding risks to health and safety


Section 4 – Duty of person in control of premises for health and safety of non-employeesAny person who has, to any extent control of:

z work premises

z the means of access or egress

z any plant or substance in such premises.

Has a duty to take all reasonable measures to ensure that all are safe and without risks to health of non-employees who use non-domestic premises as a place of work or as a place where they may use plant or substances provided for their use.

The duty overlaps with the general duties of sections 2 and 3, which would take precedence when there is clearly an employer’s duty. The aim is to place a duty on whoever has the power to remedy a particular source of hazard.

Examples of the application of this duty include:

z coin-operated launderettes used by members of the public – if no one is employed there will be no employers duty, however the business owner would have some control of the premises and therefore have a section 4 duty

z a maintenance contractor servicing a lift in the common parts of a multi-occupied office block – if there is no obvious employer’s duty the landlord or site agent would have duties under section 4.

Section 6 – Duties of designers, manufacturers, importers, suppliers and installersAny persons who designs, manufactures, imports, or supplies any article or substance for use at work has duties to ensure so far as is reasonably practicable:

z that the article or substance is safe and without risks to health when properly used

z any necessary research and testing or examination of the article or substance is properly undertaken

z adequate information is provided to ensure its safe use.

Erectors and installers have a duty to ensure that nothing about the way in which an article intended for work is erected or installed makes it unsafe or a risk to health when properly used.




The Section covers:

z new and second hand articles designed for use at work (including fairground equipment), whether for sale or hire, and their component parts

z items which though capable of domestic use are designed to be used also at work (The safety of goods intended for domestic use is subject to Consumer Protection legislation)

z all substances, including micro-organisms, which are supplied to workplaces.

Section 7 – General duties of employees at workEvery employee has the following two duties while at work:

z 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

z to co-operate with his employer so far as is necessary to enable the employer to comply with his own duties.

Section 8 – Duty to not interfere with or misuse anything provided in the interests of health, safety or welfare

Note:

This duty is imposed on all people, including children, be they at work or members of the public.

No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare whether for the protection of employees or other persons.

Section 9 – Duty of employer not to levy a charge on employeesThe employer cannot charge an employee (or allow an employee to be charged) for anything done or provided to comply with health and safety legislation.

Section 36 – Offences due to fault of another personIf person ‘A’ commits an offence because of an act or default of person ‘B’, then person ‘B’ may also be charged and convicted of the offence as well as, or instead of person ‘A’.

The section also allows Crown servants, such as civil servants, to be prosecuted even though the Crown as employer is immune from prosecution.






HSE v Lockwood (2001)

Lockwood, an occupational hygienist, was successfully prosecuted under section 36 for

failing to carry out a proper assessment of workers’ exposure to hazardous dust at a woodworking factory.

The woodworking company was also prosecuted under section 2. The court held that the company had not selected the best occupational hygienist for its needs. ‘… when relevant

Section 37 – Offences by a body corporateWhere an offence committed by a body corporate is proved to have been committed with the consent, connivance, or neglect of any director, manager, secretary or similar officer, the director may also be charged and convicted of the offence.

Armour v Skeen 1977

A workman fell to his death while repairing a road bridge over the river Clyde. Mr. Armour

was the Director of Roads for the regional Council and as such the responsibility for supervising the safety of road workers was his. He had not produced a written safety policy for such work.

He was prosecuted under Section 37(1) of the Health and Safety at Work, etc. Act 1974 which imposes personal liability on senior executives.

Mr. Armours’ defence was that he was under no personal duty to carry out the Council’s statutory duties, one of which was the formulation of a detailed safety policy for the roads department. This was rejected.

Section 37(1) imposed upon Mr. Armour the personal duty to carry out the Council’s statutory duty to prepare a written policy. This he had failed to do and was therefore guilty of an offence.

Section 40 – Onus of proving limits of what is practicable etc.In proceedings for an offence consisting of a failure to comply with a duty or requirement to do something so far as is practicable or reasonably practicable, the accused has to prove that it was not practicable or not reasonably practicable to do more than was done.

Therefore, in order to defend a criminal case, the accused would have to show that they had done all that was practicable or reasonably practicable.




Section 47 – Civil liabilityThis section is the ‘statute bar’.

It does not allow civil proceedings under Tort of Breach of Statutory Duty (TBSD) for a breach of duties under the Act.

It does not allow civil proceedings under Tort of Breach of Statutory Duty (TBSD) for a breach of duties imposed by health and safety regulations unless an exception has been created.



Corporate manslaughter

Manslaughter by individuals is a ‘common law’ crime. The case of R v Adomako (1994) sets out the current test to prove the offence. An individual commits manslaughter when he causes a death through gross negligence.

The test of whether a ‘company’ could be found guilty of common law manslaughter was intrinsically linked to the ‘identification doctrine’. A director or senior manager (a controlling mind and will) of the company had to be found guilty, for the company to be found guilty.

There were a number of disasters in the 1980s and 1990s which lead to failed prosecutions for corporate manslaughter.

The Southall rail crash on 19 September 1997 resulted in 7 deaths and 151 injuries, leading to Great Western Trains (GWT) pleading guilty to contravening Section 3(1) of the Health and Safety at Work Act, and receiving a record fine of £1.5 million.

Mr Justice Scott-Baker expressed his concern regarding ‘a serious fault of senior management’. However a charge of manslaughter could not succeed because no individual could be prosecuted and found guilty of gross negligence manslaughter.

The HSE commented that death or personal injury resulting from major disasters was rarely due to the negligence of a single individual but was more likely to be the result of the failure of systems controlling the risk, with the carelessness of individuals being a contributing factor.

The Corporate Manslaughter and Corporate Homicide Act 2007Note:

the offence is called corporate manslaughter in England and Wales and corporate homicide in Scotland.

After much lobbying to address the shortcomings of prosecutions of corporate bodies under common law the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) was introduced.

Under CMCHA, corporate manslaughter:

1. can only be committed by organisations and not by individuals

2. requires a breach of the duty of care under the law of negligence

3. requires that the breach is a gross breach, i.e. where the conduct of the organisation falls far below what should reasonably be expected




4. requires that a substantial element in the breach is the way in which the organisation’s activities are managed or organised by its senior management

5. is committed only where death is shown to have been caused by the gross breach of duty.

The sanctions available to the courts include unlimited fines, publicity orders and remedial orders.

The Sentencing Guidelines for Corporate manslaughter suggests that an appropriate level of fine will seldom be less than £500 000 and may be measured in millions of pounds.

Publicity orders may require publication in a specified manner of:

1. the fact of conviction

2. specified particulars of the offence

3. the amount of any fine

4. the terms of any remedial order.

Remedial ordersAny specific failings involved in the offence ought to have been remedied by the time of sentencing and if not will deprive the defendant of significant mitigation.

If, the failings have not been addressed a remedial order may be used if it can be made sufficiently specific to be enforceable.

As the remedial order requires only what should already have been done the cost of compliance with the order should not be considered in setting the fine.


The Management of Health and Safety at Work Regulations

The Management of Health and Safety at Work Regulations (‘Management Regs.’ or MHSWR) were originally introduced in 1992 to implement the requirements of the European Framework Directive. These have been updated over the years.

The ‘Management Regs.’ introduced the general requirement for risk assessment into the UK. Where other more specific legislation requires a risk assessment (e.g. CoSHH – Control of Substances Hazardous to Health Regulations), complying with the specific requirement will also fulfil the general requirement.

The requirements of the key regulations are summarised below.

Regulation 3: Risk assessmentReg. 3 places an absolute duty (i.e. shall) on the employer (or self-employed person) to make a ‘suitable and sufficient’ health and safety risk assessment of the risks that:

z employees are exposed to at work

z persons not in his employment are exposed to, arising out of or in connection with, the work.

Reg. 3 also requires:

z a specific risk assessment of the risks to young persons

z the review and revision of risk assessments if the workplace changes significantly or if there are any grounds to believe it is no longer valid

z that employers, with five or more employees, keep a record of the significant findings of the risk assessment.

https://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made


Regulation 4: Principles of prevention to be appliedReg. 4 requires the employer to implement preventive and protective measures on the basis of the principles specified in Schedule 1 of the Regulations.

Schedule 1a. avoiding risks

b. evaluating the risks which cannot be avoided

c. combating the risks at source

d. adapting the work to the individual, especially regarding workplace design and the choice of work equipment and working / production methods

e. adapting to technical progress

f. replacing the dangerous by the non-dangerous or the less dangerous

g. developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment

h. giving collective protective measures priority over individual protective measures

i. giving appropriate instructions to employees.

Regulation 5: Health and safety arrangementsHaving conducted a risk assessment (Reg. 3) and introduced risk control (preventative and protective) measures (Reg.4) the employer is required to implement appropriate management controls to ensure the effective planning, organisation, control, monitoring and review of the preventive and protective measures.

Note: this Regulation is not examinable

Regulation 6: Health Surveillance

A Reg. 6 requires the employer to ensure that employees are provided with any necessary health surveillance appropriate to the identified risks to their health and safety.

Surveillance for most risks to health (e.g. noise, vibration, radiation, hazardous substances) is required under more specific legislation.





Regulation 7: Health and safety assistanceThe employer is required to appoint a competent person or persons to assist in undertaking the measures necessary to comply with the requirements of the legislation.

The number of persons appointed, and the resources available (time and other means) must be adequate, for the size and hazard profile of the organisation.

Where more than one person is appointed arrangement must be made for ensuring adequate co-operation.

Where a non-employee (e.g. consultant) is appointed the employer must provide him with information required under Reg. 10 and any factors known to affect the health and safety of employees or others.

A person is regarded as competent if they have sufficient training and experience or knowledge and other qualities to enable them to properly undertake the role.

Regulation 8: Procedures for serious and imminent danger and for danger areasThe employer is required to:

z implement appropriate procedures to be followed in the event of serious and imminent danger arising in the workplace

z appoint a sufficient number of competent persons to implement evacuation procedures

z restrict access to ‘danger areas’ to those employees who have received adequate instruction and training regarding the risks and controls.

Note: this Regulation is not examinable

Regulation 9: Contacts with external services

The employer is required to arrange any necessary contacts with external services for provision of appropriate first-aid, emergency medical care or rescue work responses.





Regulation 10: Information for employeesThe employer should provide employees with relevant, comprehensible information regarding:

a. the risks to their health and safetyb. the preventive and protective measuresc. the procedures for serious and imminent danger, and danger areas including the

identity of the competent persons appointed for evacuation proceduresd. the risks created by another employer while sharing a workplace (see Reg. 11).

Where a child is employed the information is to be provided to the parent or guardian.

Note: these Regulations are not examinable

Regulation 11: Co-operation and coordination

Each employer is required to:

a. co-operate with the other employersb. take reasonable steps to coordinate his control measure with the measures the other employers are

takingc. take reasonable steps to inform the other employers of any potential risks to their employees’ health

and safety.

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

Where an employee from an outside undertaking (e.g. a contractor’s employee) visits the workplace the employer must ensure that they are provided with comprehensible information on the risks to their health and safety and corresponding control measures.

Regulation 13: Capabilities and trainingAn employee’s capabilities for health and safety must be taken into account before the employer allocates them work.

Employees are to be provided with adequate health and safety training:

z on recruitment z on being exposed to new or increased risks because of changes of responsibility, work

equipment, new technology or new systems of work.






Regulation 14: Employees’ dutiesAll employees’ are required to:

z use any machinery, equipment, dangerous substance, transport equipment, means of production or safety device in accordance with health and safety training and instruction

z inform the employer (or employee with specific responsibility) of any work situation which represented a serious and immediate danger to health and safety of use

z any shortcomings in the protection arrangements for health and safety.

Note:

Temporary workers, employed under a fixed term contract of employment should be provided with comprehensible information on:

a. any occupational qualifications or skills required to carry out work safely

b. any health surveillance required.

Regulation 16: Risk assessment in respect of new or expectant mothersWhere work involves risk, to the health and safety of a new or expectant mother, or her baby, from any processes or working conditions, or physical, biological or chemical agents the Reg. 3 risk assessment should address those risks.

Biological risk from infectious or contagious disease is only relevant if the risk of exposure at work is greater than the risk of exposure outside of the workplace.

Where the risks to the mother or baby cannot otherwise be addressed and it is reasonable to do so the employer should alter her working conditions or hours of work or suspend the employee from work for so long as is necessary to avoid such risk.

Regulation 17: Certificate from registered medical practitioner in respect of new or expectant mothersWhere a new or expectant mother works at night and provides the employer with a certificate from a registered medical practitioner or a registered midwife that shows that it is necessary for her health or safety to not work for any specified period the employer should suspend her from work for so long as is necessary for her health or safety.





Regulation 18: Notification by new or expectant mothersThe employer is only obliged to take action once the employee has notified him in writing that she is pregnant, has given birth within the previous six months, or is breastfeeding.

The employer is not obliged to take action where:

z an employee fails to produce a medical certificate within a reasonable time of being requested to do so in writing by her employer

z the employee is no longer a new or expectant mother

z the employer cannot establish whether she remains a new or expectant mother.

Regulation 19: Protection of young personsYoung persons’ require protection from any risks to their health or safety at work which are a consequence of lack of experience, or absence of awareness of existing or potential risks, or a lack of maturity.

A young person may not be employed for work which:

a. is beyond his physical or psychological capacity

b. involves harmful exposure to:

• toxic or carcinogenic substances

• radiation

• extreme cold or heat

• noise or vibration.

c. involves a risk of accidents which may not be recognised or avoided by young person’s owing to their insufficient attention to safety or lack of experience or training.

Unless the work is necessary for his training, under the supervision of a competent person, and the risk is reduced to the lowest level that is reasonably practicable.




1.5 Managing contractors effectively

Planning and co-ordination of contracted work

Where clients use contractors there are shared responsibilities for ensuring the health and safety of client and contractor workforces and anyone else who may be affected by the work. If not properly managed accidents are likely.

A contractor’s employee may possibly be at a greater risk than the client’s employee whilst working on the client’s site due to:

z unfamiliarity with the client’s site z unfamiliarity with the client’s site rules and procedures z often contractors are used for high risk activities z lack of appropriate training z poor supervision.

Health and safety requirements should be written into the contract for the work, clearly defining the responsibilities of each party.

Responsibilities will vary depending on the nature of the contract as per Table 1.9.

Labour only contract

Where an agency provides staff to work under the employers direct control the contractor should be treated as an employee.

The responsibilities of the agency regarding provision of competent workers and personal protective equipment should be clearly defined.

Fixed price contract

The most common type of contract. The five steps discussed below apply particularly to a fixed price contract.

Separate site If the contracted work can be completely separated by secure fencing the contractor is responsible for health and safety on the separate site. The client may still have responsibilities regarding hazards that cannot be separated in this way e.g. noise, and access and egress to and from the separate site may still overlap with the clients undertaking.

Table 1.9: Different types of contract


The legal duties of section 3 of the Health and Safety at Work Act and Regulation 11 of the Management of Health and Safety at Work Regulations will also apply. For construction projects the requirements of the Construction (Design and Management) Regulations 2015 (CDM) will also apply.

Subcontractor

Contractor

ContractorsEmployees

Employer

Employees

Figure 1.6: The complexity of client contractor relationships

Figure 1.6 represents a situation where a client (the employer) appoints a contractor to do work on site where the work will involve the contractors employees and a specialist sub-contractor who will be working in the same area as the employer own staff.

As discussed previously each employer has general duties under HASAWA to ensure the health and safety of their own employees (section 2), and any non-employees affected by the undertaking (section 3). Each employee has duties under section 7 to cooperate with their employer and to take reasonable care for their own safety and the safety of others. The Management Regs (Regulation 11) specifically requires employers sharing a workplace to cooperate and coordinate their activities to ensure the health and safety of all.

The extent of the responsibilities of each party will depend on the circumstances.


Selection and ongoing management of contractors

The HSE advocates a five step approach on how to manage contractors and ensure safe working:

1. planning

2. choosing a contractor

3. contractors working on site

4. keeping a check

5. reviewing the work.

Step 1: Planning

Defining the jobThe client should clearly identify all aspects of the work they want the contractor to do, including work falling within the preparation and completion phases.

Risk managementBoth the client and prospective contractor should be involved in the risk management process.

The client should already have a risk assessment for the work activities of his own business. The contractor’s role involves assessing the risks for the contracted work.

The client and the contractor need to agree the risk assessment for the contracted work and the preventative and protective steps that will apply when the work is in progress. If subcontractors are involved, they should also be part of the discussion and agreement.

Specify conditionsContractors must be made aware of the expected standards of performance. Health and safety arrangements, procedures, permit systems and safety policy statement should be shared with the contractor who should confirm their understanding and agree to work accordingly.

Step 2: Choosing a contractorContractors will be selected based upon a range of criteria including: availability, cost, technical competence, reliability and health and safety.


The client has to take reasonable steps to satisfy themselves that the contractor is competent to do the job safely and without risks to health and safety.

The degree of competence required will depend on the work to be done.

The best way of being satisfied of a contractor’s competence is through first-hand experience. A contractor is demonstrably competent if he has previously been used successfully on a similar job (through a cycle of risk management, monitoring and review).

A pre-tender questionnaire (PTQ) may be used to broadly determine the suitability of a contractor. Questions should be designed to check the contractors:

z experience in the type of work to be done

z health and safety policies and practices

z recent health and safety performance (number of accidents etc.)

z qualifications and skills relevant to the contract

z selection procedure for sub-contractors (if sub-contractors are to be allowed), or their safety method statement

z arrangements for:

• health and safety training e.g. safety passport• supervision• consulting the workforce

z independent assessment of competence

z memberships of relevant trade or professional body.

References may be needed to verify the information provided.

Once a contractor has been appointed pre-commencement meetings will be required to clarify responsibilities and to ensure effective management arrangements are in place.


Step 3: Contractors working on siteSpecific arrangements will be required to:

z manage the movements of contractors on site through visitor sign in controls and possibly permits-to-work

z ensure that all technical and management controls are in place before allowing the work to begin e.g.:

• numbers of persons and supervisor details are confirmed• the correct work equipment is provided• access and egress to location of work are discussed and agreed• suitable personal protective equipment is available and being worn• safe system of work / method statements are understood• any necessary permits to work are in place• reporting, communications and monitoring arrangements have been agreed.

Arrangements will also be required for:

Information, instruction and trainingAll parties need to consider what health and safety information needs to be passed between them and agree appropriate ways to make sure this is done.

Instruction and training provided needs to take account of the risks arising from each parties work.

Co-operation and coordinationThe client should set up regular meetings or briefings to ensure effective liaison between all the parties involved.

ConsultationThe workforces should be part of the liaison arrangements set up by the client and should be involved from the outset.

Management and supervisionThe greater the risk posed by the contractor’s work the greater the management and supervisory responsibilities of the client.

The client will require sufficient knowledge and expertise to manage and supervise the contracted work.


Step 4: Monitoring the contractAll parties should monitor their health and safety performance to check that risk assessments are current and that control measures are effective.

The level of monitoring depends on the risks – the greater the risks, the more frequent the monitoring.

Contractors and sub-contractors should carry out day-to-day checks to see that what should be done is being done, and clients should make periodic checks on the contractor’s performance to see if the work is being done as agreed.

Information from proactive monitoring and reactive investigations should be used to learn lessons and improve future performance.

Where requirements are not being met the client should take appropriate action to ensure the work is undertaken to the required standard.

Step 5: Reviewing the workBoth the client and the contractor should review the work after completion to see if performance could be improved in future.

The client should review both the job and the contractor. Consideration should be given to the effectiveness of the planning, the contractor’s performance, and how smoothly the job went.

Lessons learnt should be recorded and used to influence future decisions.


Construction (Design and Management) Regulations 2015 (CDM)

The aim of the Construction (Design and Management) Regulations 2015 (CDM) is to integrate health and safety into the management of a construction project and to encourage everyone involved to work together.

CDM requires:

z a realistic project programme with adequate time allowed for planning, preparation and the work itself

z early appointment of duty holders

z sufficient information, instruction, training and supervision to enable all duty holders to carry out their jobs in a way that secures health and safety

z early (i.e. starting at the design phase) identification and reduction of risks through application of the general principles of prevention

z co-operation and communication between duty holders and coordination of work

z consulting with and engaging workers to promote and develop effective measures to secure health, safety and welfare

z health and safety resources proportionate to the risk and complexity of the project.

Processes for risk management, provision of information and the cooperation and coordination of duty holders are managed through clearly defined roles and responsibilities and the use of two key documents – the construction phase plan and the health and safety file (discussed later).


1 All projects

All projects require:

workers with the right skills, knowledge, training and experience contractors providing appropriate supervision, instruction and information a written construction phase plan.

2 Projects where more than one contractor is involved

Section 1 requirements apply, plus:

a principal designer and principal contractor must be appointed a health and safety file should be maintained.

3 Notifiable projects

If the work is scheduled to:

• last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project • exceed 500 person days.

All requirements of sections 1 and 2 apply, plus:

the client must notify the project to the HSE.

Figure 1.7: CDM 2015 – Main requirements

Duty holdersThe CDM Regulations allocate specific duties to the following seven parties. The duty holders may be organisations rather than individuals and may be within the same organisation:

1. clients2. domestic clients3. designers4. principal designers


5. principal contractors6. contractors7. workers.

The key roles and duties are summarised in Table 1.10:

Duty holders Summary of role / main duties

Clients(organisations or individuals for whom a construction project is carried out)

Make suitable arrangements for managing a project. This includes making sure:• other duty holders are appointed

• sufficient time and resources are allocated

• relevant information is prepared and provided to other duty holders

• the principal designer and principal contractor carry out their duties

• welfare facilities are provided.

Domestic clients(people who have construction work carried out on their own home, or the home of a family member that is not done as part of a business, whether for profit or not)

• Domestic clients are in scope of CDM 2015, but their duties as a client are normally transferred to:

• the contractor, on a single contractor project

• the principal contractor, on a project involving more than one contractor.

• However, the domestic client can choose to have a written agreement with the principal designer to carry out the client duties.

Designers(as part of a business, prepare or modify designs for a building, product or system relating to construction work)

• When preparing or modifying designs, to eliminate, reduce or control foreseeable risks that may arise during:

• construction

• the maintenance and use of a building once it is built.

• Provide information to other members of the project team to help them fulfil their duties.

Table 1.10: CDM 2015: Key roles and duties (1 of 2)



Principal designers(designers appointed by the client in projects involving more than one contractor. They can be an organisation or an individual with sufficient knowledge, experience and ability to carry out the role)

• Plan, manage, monitor and coordinate health and safety in the pre-construction phase of a project. This includes:

• identifying, eliminating or controlling foreseeable risks

• ensuring designers carry out their duties.

• Prepare and provide relevant information to other duty holders.

• Provide relevant information to the principal contractor to help them plan, manage, monitor and coordinate health and safety in the construction phase.

Principal contractors(contractors appointed by the client to coordinate the construction phase of a project where it involves more than one contractor)

• Plan, manage, monitor and coordinate health and safety in the construction phase of a project. This includes:

• liaising with the client and principal designer

• preparing the construction phase plan

• organising cooperation between contractors and coordinating their work.

• Ensure:

• suitable site inductions are provided

• reasonable steps are taken to prevent unauthorised access

• workers are consulted and engaged in securing their health and safety

• welfare facilities are provided.

Contractors(those who do the actual construction work and can be either an individual or a company)

• Plan, manage and monitor construction work under their control so that it is carried out without risks to health and safety.

• For projects involving more than one contractor, coordinate their activities with others in the project team – in particular, comply with directions given to them by the principal designer or principal contractor.

• For single-contractor projects, prepare a construction phase plan.



Workers(The people who work for or under the control of contractors on a construction site)

They must:• be consulted about matters which affect their health,

safety and welfare

• take care of their own health and safety and others who may be affected by their actions

• report anything they see which is likely to endanger either their own or others’ health and safety

• co-operate with their employer, fellow workers, contractors and other duty holders.

Table 1.10: CDM 2015: Key roles and duties (2 of 2)

NotificationUnder Regulation 6 of the CDM Regulations a project is notifiable if the construction work on a construction site is scheduled to:

z last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project;

z exceed 500 person days.

Where a project is notifiable, the client must give notice in writing to the HSE as soon as is practicable before the construction phase begins.

The notice must contain the following particulars (as specified in Schedule 1):

z the date of forwarding the notice

z the address of the construction site or precise description of its location

z the name of the local authority where the construction site is located

z a brief description of the project and the construction work that it entails

z the clients contact details – name, address, telephone number and (if available) an email address

z the principal designers contact details – name, address, telephone number and (if available) an email address

z the principal contractors contact details – name, address, telephone number and (if available) an email address


z the date planned for the start of the construction phase

z the time allocated by the client for the construction work

z the planned duration of the construction phase

z the estimated maximum number of people at work on the construction site

z the planned number of contractors on the construction site

z the name and address of any contractor already appointed

z the name and address of any designer already appointed

z a declaration signed by or on behalf of the client that the client is aware of the client duties under these Regulations.

The easiest way to notify any project is to use the electronic notification form (F10) at www.hse.gov.uk/forms/notification/f10.htm.

The client must ensure that an up-to-date copy of the notice is displayed in the construction site office, so it is accessible to anyone working on the site and can be easily understood. The form must be periodically updated where necessary.

Work involving particular risks (Schedule 3)

work which puts workers at risk of burial under earth falls, engulfment in swampland or falling from a height

work which puts workers at risk from chemical or biological substances

work with ionising radiation requiring controlled or supervised areas under the Ionising Radiations Regulations 1999

work near high voltage power lines

work exposing workers to the risk of drowning

work on wells, underground earthworks and tunnels

work carried out by divers having a system of air supply

work carried out by workers in caissons with a compressed air atmosphere

work involving the use of explosives

work involving the assembly or dismantling of heavy prefabricated components.

Table 1.11: Work involving particular risks (Schedule 3)

http://www.hse.gov.uk/forms/notification/f10.htm

http://www.hse.gov.uk/forms/notification/f10.htm


Pre-construction informationPre-construction information (PCI) provides the health and safety information needed by designers and contractors who are bidding for work on the project, or who have already been appointed to enable them to carry out their duties, and principal designers and principal contractors in planning, managing, monitoring and coordinating the work of the project.

Pre-construction information is information already in the client’s possession (such as an existing health and safety file, an asbestos survey, structural drawings etc) or which is reasonable to obtain through sensible enquiry.

The information must be relevant to the project, have an appropriate level of detail and be proportionate to the nature of the risks.

When complete the PCI must include proportionate information about:

z the project, such as the client brief and key dates of the construction phase

z the planning and management of the project such as the resources and time being allocated to each stage of the project and the arrangements to ensure there is cooperation between duty holders and the work is coordinated

z the health and safety hazards of the site, including design and construction hazards and how they will be addressed

z any relevant information in an existing health and safety file.

The main duty for providing PCI rests with the client. The principal designer must help the client bring together the information the client already holds, identify any gaps in the information and advise on how to fill the gaps.

The construction phase planThe client must ensure that a construction phase plan for the project is prepared before the construction phase begins. The plan outlines

z the health and safety arrangements for managing the significant health and safety risks associated with the construction phase of a project

z the site rules

z any specific measures concerning any work involving particular risks as listed in Schedule 3 of CDM 2015 and shown in the in Table 1.11.

For single-contractor projects, the contractor must ensure the plan is prepared. For projects involving more than one contractor, it is the principal contractor’s duty.


The plan is the basis for communicating the arrangements to all those involved in the construction phase, so it should be easy to understand and as simple as possible. The emphasis should be on the provision of information that is:

z relevant to the project

z sufficiently detailed to clearly set out the arrangements, site rules and special measures needed to manage the construction phase

z proportionate to the scale and complexity of the project and the risks involved.

The following list of topics should be considered when drawing up the plan.

z A description of the project such as key dates and details of key members of the project team.

z The management of the work including:

• the health and safety aims for the project

• the site rules

• arrangements to ensure cooperation between project team members and coordination of their work, e.g. regular site meetings

• arrangements for involving workers

• site induction

• welfare facilities

• fire and emergency procedures.

z The control of any of the specific site risks listed in Schedule 3 where they are relevant to the work involved.

Health and safety fileThe health and safety file is defined as a file appropriate to the characteristics of the project, containing relevant health and safety information to be taken into account during any subsequent project. The file is only required for projects involving more than one contractor.

File must contain information about the current project likely to be needed to ensure health and safety during any subsequent work, such as maintenance, cleaning, refurbishment or demolition. When preparing the health and safety file, information on the following should be considered for inclusion.


1. a brief description of the work carried out

2. any hazards that have not been eliminated through the design and construction processes, and how they have been addressed (e.g. surveys or other information concerning asbestos or contaminated land)

3. key structural principles (e.g. bracing, sources of substantial stored energy – including pre- or post-tensioned members) and safe working loads for floors and roofs

4. hazardous materials used (e.g. lead paints and special coatings)

5. information regarding the removal or dismantling of installed plant and equipment (e.g. any special arrangements for lifting such equipment)

6. health and safety information about equipment provided for cleaning or maintaining the structure

7. the nature, location and markings of significant services, including underground cables, gas supply equipment, and fire-fighting services

8. information and as-built drawings of the building, its plant and equipment (e.g. the means of safe access to and from service voids and fire doors).

There should be enough detail to allow the likely risks to be identified and addressed by those carrying out the work. However, the level of detail in the health and safety file should be proportionate to the risks and the file should not include things that will be of no help when planning future construction work. All Information should be clear, concise and easily understandable, and in a conveniently accessible form.

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Version 1.0 2019

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Element 1 - Why we should manage workplace health and safety

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