Nebosh Ngc Element 1
Nebosh National General Certificate
NGC1 Element 1
NGC1 ELEMENT 1:- HEALTH AND SAFETY FOUNDATIONS
DEFINITIONS
What is Health and Safety? Health:- The protection of people from illness resulting from exposure to hazardous substances and materials. Safety:- The protection of people from physical injury. The problems associated with the safety side has been known for many years for example guards have been required on dangerous machines since the 19th Century whist the knowledge of the effects to exposure from hazardous chemicals have been a much slower development Other definitions used in the field of Health and Safety include:Welfare:- Looking after peoples basic needs. Environment:- The surroundings in which an organisation operates including air, water, land , natural resources, flora, fauna, humans and their interrelationships (International Standards Organisation 1992) Accident:- An unwanted, unforeseen, unplanned event which results in a loss of some kind. Incident/Near Miss:- An unwanted, unforeseen, unplanned event that had the potential to result in a loss. Dangerous Occurrence:- A near miss with serious injury potential, specifically defined in Law (RIDDOR 1995) Occupational Health:- Includes any acute or chronic ill health caused by chemical or biological agents as well as adverse effects on mental health (Health and Safety Executive 2003) Acute:- Resulting from a single short term exposure producing an immediate effect which is usually reversible e.g. Alcohol affecting the nervous system. Chronic:- Resulting from prolonged or repeated exposure producing a gradual effect that may be unrecognised for a number of years and may be irreversible e.g. Alcohol causing cirrhosis of the liver. -------------------------------------------------------------------------------------------------------01 October 2007 Page 1
NGC1 Element 1
Nebosh National General Certificate
Hazard:- Something with the potential to cause harm May be physical, chemical, Biological, ergonomic or psychological e.g. Heat, Light, Noise, Acids and Alkalis, Metals, Animal borne, Job movements. Risk:- The likelihood that harm will occur and the severity of the harm. E.g. tripping over cables, coming into contact with machinery When applied to a work situation health and safety responsibility is placed on employers and generally means that the employer should:a) Promote and maintain the mental, physical and social well being of employees. b) Protect employees and others affected by an organisations activities from risks to their health and safety c) Establish a management framework to implement policies and achieve continual improvement in health and safety
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Nebosh National General Certificate
NGC1 Element 1
REASONS FOR GOOD HEALTH AND SAFETY PRACTICE
Health and Safety at Work is achieved by the prevention of accidents and illhealth and there are three main reasons for the prevention of accidents, and ill-health which require it to be given the same priority as other matters such as quality, progress, profit, etc. The three reasons are: 1) 2) 3) 1) Humanitarian/Moral Legal Cost HUMANITARIAN/MORAL
Past experience has shown that the majority of accidental deaths, injuries and illness could have been prevented. There are few people who would not care if their action or inaction was shown to result in suffering by someone else. Attitudes in society are increasingly focusing on health, safety and environmental issues. The media regularly expose instances of peoples’ health and safety being placed at risk. Linked with the humanitarian objective of accident prevention is employee morale, customer relationships and public relations, all of which can be adversely affected by a poor accident or ill-health record. According to the HSE Annual Report provisional estimates for 2002/03 there were: Accidents at Work 2004/2005 Fatal accidents to employees Fatal accidents to self employed Total fatal accidents to the public (246 suicides and trespassers on Railways) Major injuries More than 3 days absence
169 51 361 30,213 120,346
In the past, the focus has been mainly on safety issues, possibly because accidents are often dramatic and very visible. The long-term nature of many health issues (deafness, musculo-skeletal disorders, asthma, cancer etc.) possibly makes them less dramatic. It is also easier to pretend that damage to health is not work related or that the resulting disability is not really as severe as the victim claims to be.
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NGC1 Element 1
Nebosh National General Certificate
Occupational Illness Deaths due to Asbestosis ( Death certificates 2000) Deaths due to Mesothelioma ( Death certificates 2000) Asbestos-related lung cancer (Ind. injuries Reports 2000) Cancers Deaths work related (Estimate of 4% of total cancer deaths based on Doll and Peto research in USA 1981) Work related musculo-skeletal disorders estimated cases seen by rheumatologists and occupational physicians 2001 Musculo-sketal disorders (DSS new cases 2000/01) Vibration white finger (DSS new cases 2000/01 Carpal tunnel syndrome (DSS new cases 2000/01) Occupational deafness (DSS new cases 2000) Total occupational deafness benefits being paid (at least 50dB loss) in 2000 Infections (Consultants communicable disease control) 2001 Dermatitis estimated cases per year by specialist physicians Poisonings/injuries from chemicals RIDDOR 97 to 01 average Occupational asthma – cases reported to Surveillance of Work Related and Occupational Respiratory Disease (SWORD) project estimate 2001 Stress Reported by psychiatrists 2001 Stress Reported by occupational health physicians 2001
186 1628 126 6000
7800 377 3317 600 226 14,000 694 4200 1620
650 3048 4371
The table above shows that occupational ill health is in fact a greater problem even than occupational injury. Exposure to hazards at work lead to damage to health and should be regarded as accidents – even though they may take some years to happen and many more years to become apparent in some cases. 2) LEGAL
The old style prescriptive legislation attempted to anticipate and set out in detail what would be needed in every organisation to prevent accidents and ill health. This approach failed to stop the ever-increasing number of occupational injuries and disease. It is also possibly contributed to a culture in which the aim was to avoid prosecution by complying with the (ofteninadequate) technical requirements of the law. Modern health and safety laws tends to set targets rather than relying on compliance with specific technical requirements. The broad target is the adequate control of risks to the health and safety of employees and others. Put very simplistically, if employers and others fail to do all that they could reasonably do to prevent work related injuries and occupational ill health then they have almost certainly broken the law. ______________________________________________________________ Page 4 01 October 2007
Nebosh National General Certificate
NGC1 Element 1
Ever since the Health and Safety at Work etc Act (1974) required every employer to “ensure so far as is reasonably practicable, the health, safety and welfare at work of all his employees” (and others) there has been an implied duty to assess and control risk. More recently, this implied duty has been made explicit by laws such as : the Management of Health and Safety at Work Regulations 1999 the Manual Handling Operations Regulations 1992 and the Control of Substances Hazardous to Health Regulations 1999 and many others. All of these laws place an absolute duty upon employers to assess risks to the health and safety of employees and others) arising from the premises they control and the work activities they carry out. The significant findings of the assessments must be recorded. This puts the onus upon the employer to manage the risk by identifying the physical measures needed such as guarding etc. and the organisational measures necessary (identifying responsibilities, training staff, providing information, monitoring performance etc.). Specific legal requirements still exist, mainly in the form of Regulations and Approved Codes of Practice, but words and phrases such as “adequate”, suitable and sufficient” and “so far as is reasonably practicable” require active management rather than passive minimal compliance. In addition to the Criminal Law we also have the Civil Law which compensates persons who have suffered injury or ill-health. Enforcement Action Enforcement action will be explained in Section 3. There is a trend toward more prosecutions of individuals, particularly senior managers and directors etc. where their negligence, consent, or connivance has resulted in offences. Offences such as breach of Enforcement Notices and operating (e.g. asbestos removal) without a license carry prison sentences. Enforcement Action (Health & Safety Executive) 2003/04 Informations laid before Court 1756 (prosecutions “attempted”) Convictions 1305 (74%) Average penalty £9858 Improvement notices issued 6776 Immediate prohibition issued 4438 Deferred prohibition issued 81
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NGC1 Element 1 3) COST
Nebosh National General Certificate
The Hidden Cost to Employers It has been estimated that workplace accidents cost the nation between 2.12.6% of the gross domestic product. This is between £14.5 and £18.1 billion pounds per annum (HSE figures) Work-related injuries and ill-health cost industry 30 million lost days each year; nearly ten times the days lost to strikes. The cost of health and safety control programmes (precautionary and preventive measures) are usually easily recognised and calculated as a bottom-line expense. The cost of failure is less easy to calculate as the losses tend to be absorbed into operating costs. Costs include: Accident investigation; Payments to injured persons Replacement labour Training for replacement labour Payments for non productive time (witnesses, investigators, first aiders, clearing up etc.); Repair of equipment Replacement of equipment Loss of business Loss of reputation Compensation payments Legal costs and fees Increased insurance premiums
Many of the factors in the above list are not covered by insurance. Insurance All private sector Employers are required to have Employers Liability Insurance under the Employers Liability (Compulsory Insurances) Act 1969 whose aim is to ensure that employees who are injured in work can receive compensation . Under the act it is an offence to: Not to be insured To fail to display the certificate or a copy Fail to send a copy when requested by an Inspector Fail to produce a copy on demand by an Inspector Refuse an Inspector to inspect the policy document.
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Nebosh National General Certificate
NGC1 Element 1
Insurance claims under Employers liability insurance have outstripped premium increases in recent years, partly due to increased public awareness and concern about health. Also people are more ready to claim, and compensation as well as legal costs are continuing to rise. These factors are causing great concern among insurers who fear the future cost of today’s health hazards (particularly issues such as repetitive strain injury and passive smoking). Employers liability insurance premiums are rising dramatically for employers who cannot show evidence that these risks are being managed and some Companies may well become uninsurable. As Employers Liability Insurance is a legal requirement a Company cannot legally trade without it. So in summary the benefits of good health and safety practice are: Reduced accidents Reduced damage to equipment Reduced absenteeism Improved production Reduced insurance premiums Improved morale Improved company reputation Reduced fines, Reduced compensation claims
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NGC1 Element 1
Nebosh National General Certificate
SAFETY MANAGEMENT SYSTEMS
The Health and Safety Executive in the publication Successful Health and Safety Management HS(G) 65 suggests successful Health and Safety Management can be achieved by the following six stages. Policy:- Health and safety aims of the organisation, health and safety objectives and management commitment Organising:- Clear roles and responsibilities, Competence, commitment and control, Co-operation, Communication Planning and Implementation:- Identify hazards, assess risks, and decide how risks can be eliminated or controlled. Sets standards against which performance can be measured. Measuring performance:- Be used as a means of determining the extent to which health and safety policy and objectives are being implemented and should be both reactive and proactive. Reviewing:- Analysing data gathered through monitoring to see whether performance is adequate Audit:- Systematic critical examination of each stage of an organisations management systems and procedures
POLICY
Policy development Organisational development
ORGANISING
AUDIT
PLANNING & IMPLEMENTING Developing techniques of planning, measuring and reviewing
MEASURING PERFORMANCE
Step 1:- The policy
Information link
REVIEWING PERFORMANCE
Feedback loop to improve performance
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CONTROL LINK
Nebosh National General Certificate Step 1 The Policy
NGC1 Element 1
The Health and Safety Policy influences all workplace activities such as selection of people, equipment, materials and the way work is done as well as specifying the procedures for identifying hazards, assessing the risks and preventing or controlling them. To ensure the policy is working the following questions need to be asked:a) Are staff aware of the policy and do they understand it?. b) Is the policy compatible with overall Company policy?. c) Does the policy delegate responsibilities to Competent individuals?. d) Does the policy indicate to Directors and Managers how to assess risks and allocate resources?. e) Is the policy a working document?. Step 2 Organisation:Successful Organisations have the necessary organisational structure to ensure that health and safety is properly dealt with. Successful Organisation can be achieved by that the following four elements are properly in place:a) Control This involves Policies, Procedures, Organisational Development, Planning, Auditing, Monitoring and Review. b) Consultation Consultation demonstrates commitment which should lead to co-operation between all elements of the Organisation. c) Communication Successful communication should flow in all directions. d) Competency Needs to exist within the Organisation and needs to be considered for all Recruitment, staff transfers and training. -------------------------------------------------------------------------------------------------------01 October 2007 Page 9
NGC1 Element 1
Nebosh National General Certificate
Step 3: Planning, Setting Standards and Implementation All Organisations should establish standards to ensure adequate identification of hazards and assessment of risk take place and performance can be compared against recognisable standards. To do this the Organisation should:a) Generate SMART objectives. b) Identify hazards, assess risks and establish priorities according to risk. c) Set performance standards d) Have plans to deal with non routine, new work and serious risks. e) Monitoring arrangements to ensure standards are met. Step 4:- Measuring Performance Organisations should measure their performance against predetermined standards to identify weaknesses and improvements in the systems. Some points to consider are:a) Directors and Managers may not be aware of practices occurring in their Departments. b) Monitoring needs to be both proactive and reactive c) Monitoring systems should be introduced in each Department. Step 5:- Reviewing and Auditing Improvement will be obtained by continuous reviewing and auditing of performance. The assessment should:a) Be carried out against suitable health and safety standards and specific SMART objectives. b) Identify areas where standards are poor or inadequate. c) Analyse accident, incident and ill health data.
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Nebosh National General Certificate
NGC1 Element 1
INTRODUCTION TO THE LAW
WHAT IS LAW? The term ‘Law’ may be defined as: “A rule of human conduct, imposed upon and enforced among, the members of a given State.” (Law made simple by Barker & Padfield) The purposes of Law include: (a) The control of anti-social behaviour; (b) The Regulation of relationships among individuals or between individuals and the State; (c) The resolution of conflicts; (d) The setting of clear standards for behaviour with penalties for noncompliance.
SOURCES OF LAW Apart from European Law the Law in the United Kingdom originates from 2 sources: 1) COMMON LAW The Common Law was originally based on the merging of various local customs and laws as a result of the Decisions of the Royal Judges who toured the Country. It is unwritten since it depends upon a Judge’s interpretation of the customs of the realm. (So Common law is Judge made Law) Principles derived from judgements made in earlier cases create binding precedents. Binding precedents are decisions made in a Higher Court which is binding on all Lower Courts. Thus a decision made by the House of Lords is binding on all Lower Courts. Since 1966 The House of Lords is no longer bound to follow its own decisions but it would be rare for the House of Lords to overrule a previous precedent. The Court of Appeal binds all lower courts (i.e.
High Court, County Court). Decisions made by Courts of equal status create persuasive precedent only. This system is called Judicial Precedent.
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NGC1 Element 1 2) STATUTE LAW
Nebosh National General Certificate
A Statute is a written law passed by the approved legislative process of the State, i.e. Parliament, and it supersedes all other forms of Law. Thus Statute Law can override the Common Law since it is enacted by the Sovereign Power and is, therefore, superior to Judicial Decision. Statute law is a source of both Criminal and Civil Law. Some Statutes, such as the Health and Safety at Work etc. Act 1974 (HASAWA Act 1974) are entirely Criminal Law. Similarly some Statutes are actionable only under Civil Law (e.g. the Occupiers’ Liability Act 1957). There are 3 distinct Levels of duty used in Statute Law and these are:a) Absolute. Absolute duties are worded as “shall, must, will” such as in the Provision and Use of Work Equipment Regulations 1998, Regulation 9, which requires that: “Every employer shall ensure that all persons who use work equipment have received adequate training for the purposes of health and safety …” (so absolute duties must be followed). b) Practicable. This means they must be carried out if, in the light of the current state of knowledge and invention, it is feasible to do so, even though its implementation may be difficult, inconvenient and/or costly. For example, the Provision and Use of Work Equipment Regulations 1998, Regulation 11, requires “The provision of fixed guards enclosing every dangerous part or rotating stock-bar where and to the extent that it is practicable to do so.” c) Reasonably Practicable. Although this is not defined in any Act it has acquired meanings though interpretations by the Courts.To carry out a duty “so far as is reasonably practicable” means that the degree of risk in a particular activity or environment can be balanced against the time, trouble, cost and physical difficulty of taking measures to avoid the risk. If these are so disproportionate to the risk that it would be quite unreasonable for the persons concerned to have to incur them to prevent it, they are not obliged to do so. It is important to remember that the size and financial position of the employer are not taken into account. It should however, be borne in mind that the final arbiter of what is “reasonably practicable” will be the Courts. If someone is prosecuted for failing to comply with a duty “so far as is reasonably practicable”, they have to prove that it was not “reasonably practicable” to meet the requirement. This offers defendants a potential defence if they can show, on the balance of probability, that in the circumstances they had done everything to prevent a breach of the law.
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Nebosh National General Certificate TYPES OF LAW
NGC1 Element 1
There are 2 types of Law we have to consider and these are:1) CIVIL LAW (Sue) Civil law is concerned with the conduct between men. The action is brought by an individual and can be insured against. The outcome is compensatory and the burden of proof is on the balance of probabilities. The source of most Civil Law is Common Law but some Civil Law, for example the Occupiers’ Liability Act 1957, is Statute Law. This is the type of Law under which someone is Sued. So we may define Civil Law as:Civil law is the unwritten Law between men based on Judicial Precedent. The Burden of Proof is on the Balance of Probabilities and the outcome is compensatory or remedial. The courts that deal with civil claims are:_
ENGLAND/WALES SCOTLAND
1) 2) 3)
County Court High Court Higher Courts on appeal
1) Sheriff Court 2) Court of the Court of Session 3) Higher Courts on appeal
2) CRIMINAL LAW (Prosecution) Criminal Law regulates the conduct between the State and man. The burden of proof in criminal cases is ‘beyond reasonable doubt’ and the outcome is punitive e.g. custody, community sentence, fine, etc. This is the type of Law under which someone is Prosecuted. The action is brought by the State and cannot be insured against. So we may define Criminal Law as:A written law passed by Parliament for the conduct between the State and Man, the burden of proof being beyond reasonable doubt and the outcome penal or punitive, i.e. jailing or fining or both. The courts that deal with criminal prosecutions are: ENGLAND/WALES 1. Magistrates Court 2. Crown Court 3. Higher courts on appeal SCOTLAND District Court or Sheriff’s Court Sheriff’s Court or the High Court of Justiciary Higher Court on appeal
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NGC1 Element 1
Nebosh National General Certificate
DELEGATED LEGISLATION/SUBORDINATE LEGISLATION Whereas Acts of Parliament generally contain the legislation intended, in many modern Statues authority is given to persons and bodies to issue Regulations which are legally binding. Such authority is conferred by a statute, and must be exercised within the limits set out in the Act. Any authority to legislate by delegation is always subject to the continuing consent of Parliament, and the authority can be replaced or withdrawn at any time. (This authority to bring in Legislation under the Act is known as Delegated Legislation.) and in Health and Safety the power is delegated to the appropriate Secretary of State. In the field of safety, we shall come across many Regulations, e.g. Asbestos Regulations, Noise at Work Regulations, control of Substances Hazardous to Health Regulations etc. an Employer can insure against Civil claims for damages but not for fines and penalties imposed for successful prosecutions. EUROPEAN DIRECTIVES The European Community are attempting harmonise health and safety legislation across the Community. To do this they issue Directives which are derived by consultation, negotiation and are approved by Qualified Majority Voting of the Member States. These are legally binding but require further action by Member States. They lay down a “Framework” of the intended results of the Legislation leaving it to the individual Member States as how these aims are achieved and giving a target date for implementation. In the U.K. these Directives are implemented in the form of Regulations which means they are Criminal Law. So in summary the differences between Criminal and Civil Law are:Criminal Law Source of Law Who between Intended result? Courts Insurance? Mostly statute:- Written State and man Punishment(Jail/Fines) Magistrates and Crown No Civil Law Mainly Common Unwritten Individuals Balance of Probabilities Compensation County and High Yes
Burden of Proof? Beyond reasonable doubt
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Nebosh National General Certificate
NGC1 Element 1
ENGLISH & WELSH COURTS
European Court of Justice .
House of Lords
Court of Appeal
High CROW Court
Crown Court
County Court CIVIL (SUE) Compensation
Magistrates Court CRIMINAL (PROSECUTED) Jail or Fines or both
SCOTTISH COURTS
House of Lords Court of Session Inner House Court of Criminal Appeal High Court of Justiciary Sheriff Court Sheriff Court CIVIL (SUE) Compensation District Court CRIMINAL (PROSECUTE) Jail or Fines or Both
Court of Session Outer House
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NGC1 Element 1
Nebosh National General Certificate
CIVIL LAW
Civil Law is defined as: The unwritten Law between men based on Judicial Precedent. The Burden of Proof is on the Balance of Probabilities and the outcome is Compensatory or Remedial. Actions under Civil Law in England are known as Torts i.e. a Tort is a Civil Wrong as distinct from Criminal Wrong. In Scotland Civil Wrongs are called Delicts. In England the person taking the action is called the Claimant in Scotland the Persuer. In England the person defending the action is called the Defendant in Scotland the Defender. When considering the Civil Law in industrial situations there are 3 elements to Civil Law claims. 1) DUTY OF CARE Civil Law imposes on all of us a duty to try to avoid injuring each other. This applies whether we are householders, road users, employers, manufacturers or suppliers of goods or otherwise engaged in business, social or sporting activities involving risk of injury to others. Duty of Care has been defined as;You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. … and who are our Neighbours? Someone who is so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called into question. The two previous definitions were given by Lord Atkin in the case of: Donoghue vs Stevenson (1932).
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Nebosh National General Certificate 2) DUTY OF CARE BREACHED (NEGLIGENCE)
NGC1 Element 1
There are many Torts in Civil Law but for industrial purposes the only Tort to be considered here is that of Negligence. Negligence – Definition: Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or do something which a prudent and reasonable man would not do. – Judge Alderson in Blyth vs Birmingham Waterworks Co. (1856) So simplifying the definition:- Negligence is the failure to do something which a reasonable man would do or do something which a reasonable man would not do. 3) INJURY OR DAMAGE Unless injury or damage has occurred there cannot be a claim. The Civil Law case outcome is compensatory, therefore, if no injury or damage has occurred there is nothing to be compensated for. Therefore it can be seen that before any action for damages can be considered The Employee must show all three conditions have been satisfied, i.e.: It must be first shown that in the particular circumstances the Claimant was owed a Duty of Care by the Defendant The Claimant must demonstrate that the Defendant was in breach of that Duty of Care i.e. had been Negligent. . The Claimant must have received Injury or Damage caused by the Defendant’s negligent conduct. EMPLOYERS DEFENCES AGAINST CLAIMS FOR NEGLIGENCE The employers defence can be to dispute the above i.e . 1) No Duty of Care owed to Claimant 2) Not in Breach of Duty i.e. no Negligence has occurred 3) No Injury or Damage has occurred
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NGC1 Element 1
Nebosh National General Certificate
Other Defences available to the Employer are: Volenti Non Fit Injuria (No injury can be done to a willing person). This defence is now no longer generally available to the Employer because of the legal obligations in Statutes placed on the Employer to protect his Employees Health and Safety. Contributory Negligence. Up until 1945 if the Employee contributed to their own accident it was a complete defence for the Employer. However, the Law Reform (Contributory Negligence) Act 1945 now prevents this as a complete defence but specifies that the damages shall be reduced as the court thinks fit, having regard to the claimants share in responsibility for the damage. Limitation of Action (Statute barred) Section 11 of The Statute of Limitations Act 1980 states that personal injury claims must be brought within 3 years of the date of the accident or in the case of a disease within 3 years of the disease becoming apparent. JUDICIAL PRECEDENT Common Law is Judge made Law i.e. the Judges created out of the original customs the Common Law principles that are found in Case Law. Once a regular system of law reporting developed and reports were published Judges began to be guided by decisions in previous cases and eventually it became established practice that Judges were bound to follow the decisions of Higher Courts in similar cases. So Judicial Precedent means that Judges follow decisions in previous cases. As Civil Law claims occurred in industrial situations a list evolved from various cases which placed duties on the employer for the protection of employees. These are that the employer should provide:a) b) c) d) e) f) g) Safe plant and equipment Safe systems of work Competent staff Adequate supervision Adequate instruction Safe buildings Safe environment
If the Employee can show that the Employer failed to provide one or more of these duties they will win their claim. ______________________________________________________________ Page 18 01 October 2007
Nebosh National General Certificate VICARIOUS LIABILITY Definition:
NGC1 Element 1
An Employer may be held civilly or criminally liable for the negligent or unlawful acts of an Employee, whilst they are acting in the course of their employment. This means that the Employer is liable for the Torts of their employees provided they are committed in the course of their employment. The Employers’ Liability (Compulsory Insurance) Act 1969 places a duty on Private Sector Employers to take out and maintain approved insurance policies with authorised insurers against liability for bodily injury or disease sustained by their Employees in the course of their employment. Employers are required to display a copy of the Certificate at each place of business for the information of Employees and other interested parties i.e. Enforcing Agencies. An Employer must be insured for at least £2 Million in respect of claims arising out an any one occurrence. Most policies are now written to give maximum cover of £10 Million for any one occurrence. Most insurers have withdrawn the facility of unlimited cover.
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NGC1 Element 1
Nebosh National General Certificate
HEALTH AND SAFETY LEGISLATION
The legislation governing health and safety law comes under 5 headings, these are: European Legislation Acts of Parliament Regulations made under the Act Approved Codes of Practice Guidance EUROPEAN LEGISLATION Regulations and Directives on health and safety matters within the European Community are produced and proposed by the European Commission and presented to the European Parliament who may amend or agree on the proposal. It then moves to the Council of Ministers for adoption by Qualified Majority Voting. In the UK health and safety Directives are implemented in the form of Regulations. European Legislation is Criminal Law. ACTS OF PARLIAMENT An Act of Parliament is a written Law passed by Parliament. These are produced in the form of either a public or private bill, which goes through various stages of Parliament (readings, committee, report stages etc.) after which it is passed to the House of Lords which repeat these stages. Once both Houses adopt the bill it receives Royal Assent and becomes an Act, which is entered in the Statute Book until repealed or amended. REGULATIONS Due to lack of Parliamentary time, Parliament often grant a person (Secretary of State or Minister) or a body the power to make Orders, Regulations or Rules which have the force of the Law. Parliament lays down the general principles in an Act which authorizes Delegated Legislation to be made, this is termed an Enabling Act.
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Nebosh National General Certificate
NGC1 Element 1
Regulations made under the original Act are generally compulsory and must be obeyed and carry the same penalties as those of its umbrella Act. However, as in the Safety Representatives and Safety Committee’s Regulations 1977, it can merely lay down a list of rights which may be claimed by those for whose protection it has been enacted. APPROVED CODES OF PRACTICE (ACOP) Approved Codes of Practice are approved by the Health and Safety Commission with the consent of the Secretary of State and provide a recognized interpretation of how an Employer may comply with the relevant legislation. Approved Codes of Practice do not themselves lay down legal requirements. An Employer cannot be prosecuted for failing to follow an ACOP however ACOPs can be given in evidence in a prosecution. Anyone who chooses not to follow the guidance in a particular Approved Code of Practice must be able to prove to the Court that they have nevertheless satisfactorily fulfilled those requirements if a prosecution is taken. ACOPS are issued for example on: The Management of Health and Safety at Work Regulations 1999 The Workplace (Health, Safety and Welfare Regulations) 1992 The Control of Substances Hazardous to Health Regulations 2002 GUIDANCE Guidance is issued by the Health and Safety Executive with the intention of giving advice and good practice. This advice generally more practically based than that of an ACOP. This Guidance has no legal standing nor do they have the evidential significance of the ACOP. However, it is well worth employers follow the recommendations whenever possible as in general if you meet the requirements you will be considered to have done enough to comply with the Law. They are based on practical experience and indicate the way in which the Enforcing Authority expect the employer to meet their health and safety requirements. Guidance is issued for example on: Manual Handling Operations Regulations 1992 Health and Safety (Display Screen Equipment) Regulations 1992 Personal Protective Equipment Regulations 1992
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NGC1 Element 1
Nebosh National General Certificate
The above can be summarized in the following diagram:-
Health and Safety Legislation
E u ro p e a n D ire c tiv e s
E n a b lin g A c t
R e g u la tio n s A .C .O .P .s G u id a n c e Guidance N o te s
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Nebosh National General Certificate
NGC1 Element 1
EMPLOYMENT TRIBUNALS
An Employment Tribunal is made up of a legally qualified Chairman and two lay members, drawn from a panel of people with experience in industry, business, industrial relations and so on. Wherever possible the lay members sitting on any case will be representatives of both Employers and Employees. These lay members are known as “wingmen”. Appeal lies to a Regional Employment Appeals Tribunal and to the Court of Appeal except for appeals against enforcement notices which go to the Divisional Court of the Q B Division of the High Court. With regard to Health and Safety, the following matters can be dealt with by Employment Tribunals: Appeal against improvement and prohibition notices – appeal within 21 days. Employment Matters, including: a. Time off for Safety Representative training – appeal within 3 months Failure to pay safety representatives for time spent carrying out their functions – appeal within 3 months Failure of an employer to make payment for a medical suspension – appeal within 3 months Dismissal, or constructive dismissal, following a breach of health and safety legislation – appeal within 3 months Race or sex discrimination on Health and Safety Matters – appeal within 3 months
b.
c.
d.
e.
The person bringing the case is called the Appellant and the person defending the case is called the Respondent. In the case of appeals against Enforcement notices, the Appellant has 21 days to lodge the appeal. In all other areas the appellant has 3 months to lodge an appeal.
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NGC1 Element 1
Nebosh National General Certificate
Parties before Tribunals can be represented either by lawyers or laymen, perhaps Safety Practitioners and Trade Union Officials. An application is made to the Tribunal which sets out the claim and indicates the terms of employment. The Employer is notified and indicates whether he admits the claim or intends to resist. If he resists he must outline his grounds. A date is then fixed for the hearing and both sides are told that they may appear in person or be represented by a solicitor, barrister, Trade Union Representative, Employer Association Representative or, with the Tribunal’s consent, by any other person. Before the hearing, a written opening statement needs to be prepared on behalf of the Appellant. This is read at a pre-hearing, along with a summary of the case, making reference to relevant legislation and cases of precedents. An Appellant should have to hand original documents which he proposes to bring in evidence and six copies – three for members of the Tribunal, one for himself, one for the witness and one for the Respondent. Each party must be informed at least fourteen days before the date fixed for the hearing. At the hearing itself the following sequence of events is observed: The Appellant (Party A) is called upon to open: a) A presents his case outline b) A calls his evidence c) B calls his evidence d) B makes a closing speech e) A makes a closing speech In his opening speech, the Appellant mentions his role in the Company, the facts on which he bases his case and the relevant Statutes and any case-law decisions. Witnesses are examined on oath. Tribunals can require parties to provide particulars of grounds on which they rely and any relevant facts, and grant applicants discovery or inspection of documents such as might be granted by a County Court. The relevant decision here being Waugh vs British Railways Board 1980. Normally a decision can be given on the day of the hearing, but where a difficult case is involved it can be postponed. Written reasons for the decision are always sent after the hearing. The decision may be unanimous or reached by a majority vote.
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Nebosh National General Certificate The remedies available to Tribunals are: a) b) c) Re-instatement: placed back in to the same job. Re-engagement: new job with same employer. Compensation.
NGC1 Element 1
Applications for a hearing are lodged with the Central Office of Employment Tribunals in London and the case is processed through the relevant regional office. About 40,000 applications are received a year but only a small percentage concern health and safety matters. Appeals can be made against improvement or prohibition notices on grounds of time limits for compliance or the involvement of substantive law. A Company is more likely to succeed in extending the time limit within which improvements have to be made, unless it has a bad safety record. A Tribunal can review, revoke or vary a decision on the following grounds: a) The decision was wrong due to an error made by the Tribunal Staff b) A party did not receive notice of the proceedings c) The decision was reached in the absence of a party entitled to be heard d) New evidence comes to light e) The interests of justice require a review Pre-hearings were introduced to eliminate hopeless or frivolous cases and an informal hearing takes place, without witnesses, at which the parties outline their positions. If the Tribunal form the decision that the claim is without merit, it warns the party concerned that if he proceeds at a subsequent hearing and loses, a second Tribunal may award costs against him. In the hearings themselves, the burden of proof is not such a high one as required by the Courts and it is sufficient to establish the balance of probabilities in a person’s favour. Appeals can be made on points of law but not on the facts. However, in practice, it is difficult to determine between the two and the right is almost universal. However, the three Courts of Appeal have made it a rule not to alter decisions unless a clear error of law is involved. The three Law Courts involved in appeal are;- the Divisional Courts, the Court of Appeal and the House of Lords.
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Tribunal decisions are not regarded as precedents but are valued for their reasoning and guidance. Proceedings tend to be less formal than in court and costs are not usually awarded. Appeals against Tribunal decisions on Enforcement Notices will go to The Queen’s Bench Divisional Court of the High Court. Appeals against Tribunal decisions on all other matters will go to the Employment Appeals Tribunal (EAT), which is a Specialized Court consisting of a High Court Judge and two wingmen chosen from each side of the industry. Procedure is less formal than in Court and legal representation is not insisted upon. Costs are not usually awarded and the emphasis is upon simplicity and speed. A further appeal may be made to the Court of Appeal.
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HEALTH AND SAFETY AT WORK ETC ACT 1974 – SECTIONS 1-9, 36, 37 and 40
SECTION 1-AIMS OF THE ACT To provide a comprehensive and integrated system of law dealing with: (a) The health, safety and welfare of persons at work (b) The health and safety of the public as affected by work activities. (No risk to visitors, criminal responsibility) (c) Controlling the keeping and use and preventing the unlawful acquisition, possession and use of dangerous substances and explosives. HASWA is an Enabling Act which provides for Regulations to be made by the Secretary of State or Authorised Body to meet the aims of the Act. It also provides for Approved Codes of Practice to be produced to give practical guidance on compliance with statutory provision. SECTION 2-EMPLOYERS’ DUTIES TOWARDS EMPLOYEES (1) 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. (2)(a) Provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b) Arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the Health, Safety and Welfare of employees; (d) So far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risk; (e) Provision and maintenance of a working environment for employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work. -------------------------------------------------------------------------------------------------------01 October 2007 Page 27
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2(3) Prepare and revise as appropriate a written policy statement to be brought to the notice of Employees if there are more than 5 Employees.
2(4) Consultation with Safety Representatives of the Employees (via a Safety Committee)
NB: Neither (3) or (4) are qualified by the statement (so far as is reasonably practicable)! SECTION 3-DUTIES OF EMPLOYERS TO PERSONS OTHER THAN THEIR EMPLOYEES 1. Every employer must conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment are not exposed to risks to health or safety. 2. Every self-employed person must conduct his undertaking in such a way to ensure that persons not in his employment are not exposed to health and safety risks. SECTION 4-DUTIES OF PERSONS WHO CONTROL PREMISES 1. Health and safety duties are placed on persons in control of premises for the benefit of persons working in such premises, but who are not their employees, or who use plant and substances made available to them for their use there. 2. It is the duty of the person, persons or body in control to take steps to ensure, so far as is reasonably practicable that: (a) The premises (b) The means of access and egress and (c) The plant and substances provided for use there are safe and without risks. 3. Where a contract or lease expressly or by implication places responsibility for: (a) Maintenance and/or repair of premises, or (b) Health and safety obligations in connection with plant and substances in premises, upon a particular person or body, that person or body is deemed to be in control. SECTION 5 has been replaced by The Environmental Protection Act.
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SECTION 6-DUTIES OF DESIGNERS, MANUFACTURERS, SUPPLIERS AND IMPORTERS This section places duties on designers, manufacturers, suppliers and importers of ARTICLES and SUBSTANCES. So far as is reasonably practicable:a) Articles must be Designed and Constructed to be safe to use and without risks to health when being; Set, Used, Cleaned or Maintained by a Person at Work. Any necessary Testing, Examination and Research to support this duty must be carried out. b) Substances must be safe and without risks to health when being Used, Handled, Processed, Stored or Transported. They must carry out or arrange for such Testing and Examination as necessary to ensure safe use. c) Adequate Information must be provided about the article or substance about the use for which the product is intended. d) Persons supplied with information shall be Supplied with Revisions if it becomes necessary. e) Installers and Erectors of equipment and machinery for use at work must ensure as far as is reasonably practicable, that no health and safety hazards arise from the method of installation or erection DUTIES OF EMPLOYEES SECTIONS 7 AND 8 It should be noted that members of management may be “employees” within the meaning of the Act and will therefore, have duties under it. SECTION 7 “It shall be the duty of every employee whilst at work: a) To take reasonable care for the health and safety of himself and other persons who may be affected by his acts or omissions at work, As regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
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Nebosh National General Certificate
“No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions”. NB: Under the Interpretation Act 1978, ‘Person’ means an individual or body corporate or unincorporate. SECTION 9-DUTY NOT TO CHARGE EMPLOYEES FOR THINGS DONE OR PROVIDED PURSUANT TO CERTAIN SPECIFIC REQUIREMENTS No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions. AS FAR AS IS REASONABLY PRACTICABLE Although this is not defined in the Act it has acquired meanings through interpretations by the Courts. To carry out a duty “so far as is reasonably practicable” means that the degree of risk in a particular activity or environment can be balanced against the time, trouble cost and physical difficulty of taking measures to avoid the risk. If these are so disproportionate to the risk that it would be quite unreasonable for the persons concerned to have to incur them to prevent it, they are not obliged to do so. The greater the risk, the more likely that it is reasonable to go to the very substantial expense, trouble and invention to reduce it. But, if the consequences and the extent of a risk are small, insistence on great expense would not be considered reasonable. It is important to remember that the size and financial position of the employer are not taken into account. It should, however, be borne in mind that the final arbiter of what is “reasonably practicable” will be the Courts. If someone is prosecuted for failing to comply with a duty “so far as is reasonably practicable”, they have to prove that it was not “reasonably practicable” to meet the requirement. This offers defendants a potential defence if they can show, on the balance of probability, that in the circumstances they had done everything to prevent a breach of the law. Examples of this could be:a) It is reasonably practicable to fit a guard to a machine as the risk is high and the cost is low. b) If the noise levels are below the legal requirements the employer could provide hearing protection rather than try and reduce the noise at source. ______________________________________________________________ Page 30 01 October 2007
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SECTION 36 – OFFENCES DUE TO FAULT OF OTHER PERSON Where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence, by virtue of this sub-section whether or not proceedings are taken against the first mentioned person. SECTION 37 – OFFENCES BY BODIES CORPORATE Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any Director, Manager, Secretary or other similar officer of the body corporate, he as well as the body corporate shall be guilty of that offence. SECTION 40 – 0NUS OF PROVING LIMITS OF WHAT IS PRACTICABLE In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the requirement. The Crown does not have to prove that it was reasonably practicable to do more, the accused has to satisfy the Court that in probability it was not reasonably practicable to do more. In effect it is for the accused to prove that he did all that was reasonably practicable. It can be said that under Health and safety Law you are “ Guilty until you prove your innocence”.
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POWERS OF ENFORCEMENT OFFICERS
Section 10 of The Health and Safety at Work etc. Act 1974 established two bodies to promote and enforce Health and Safety in the Workplace. These are the Health and Safety Commission whose duties include promoting the objectives of the Act, providing an information and advisory service and putting forward to Ministers proposals for Regulations and ACOPs under the Act and arranging for the enforcement of the Act which is done by the second body The Health and Safety Executive. The Commission consists of a part time Chairman and between six and nine part-time members who are appointed by the Government. The Commission currently comprises of three members from Employer organisations, three from Trade union Organisations, two from Local Authorities and one representing the public interest. The Executive consist of three full time members who are appointed by the Commission and its full time staff. The “Health and Safety Executive” has the duty to enforce the legislation in all circumstances where no other authority has been given authority. The HSE has delegated the responsibility for enforcement of the Act to Local Authority Environmental Officers for certain premises. The major part of the Executive’s staff are in the Inspectorates (Factories, Agricultural, Quarries, Mines, Nuclear Installations, and Offshore Installations, most of whom are based in the field. These are supported by technical specialists and by a research Division. Generally the HSE enforces health and safety Law in workplaces such as construction sites, chemical plants, factories, fairgrounds, farms, mines, nuclear and offshore installations, quarries and also where the home is the place of work. Local Authorities enforce health and safety Law in retail outlets, some warehouses, offices, hotels and catering, sports, leisure, consumer services and places of worship (except where the Local Authority is the provider in which case HSE is the Enforcing Authority). Where in individual premises more than one activity is carried on, it is the main activity which determines the appropriate enforcing authority. An exception to this general rule is that the HSE enforces in respect of all premises occupied or controlled by local authorities themselves and Police or Fire Authorities. Enforcement of Environmental Legislation is undertaken by in England and Wales the Environment Agency and in Scotland by the Scottish Environmental Protection Agency who have similar powers to H & S.E. Inspectors.
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The powers of the Enforcement Officer are granted under sections 20,21,22,23,25 of The Health and Safety at Work etc Act 1974. The powers of an Enforcement Officer are the following, namely:a) At any reasonable time (or, in a situation which in his opinion is or may be dangerous at any time) to enter any premises which he has reason to believe it is necessary for him to enter; b) To take with him a Constable if he has reasonable cause to suspect any serious obstruction in the execution of his duty; c) To take with him Any other person and Any equipment or materials required for any purpose for which the power of entry is being exercised; d) To make such examination and investigation as may in any circumstances be necessary; e) As regards any premises which he has power to enter, to direct that those premises or any part of them, or anything therein, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation f) To take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation g) To take samples of any articles or substances found in any premises which he has power to enter, and of the atmosphere in or in the vicinity of any such premises; h) In the case of any articles or substances found in any premises which he has power to enter, being an article or substance which appears to him to have cause to be or to be likely to cause danger to health or safety, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is in the circumstances necessary); i) In the case of any article or substance to take possession of it and detain it for as long as necessary for the following purposes of examining it and to ensure that it is not tampered with before his examination is completed, and to ensure that it is available for use as evidence in any proceedings.
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j) To require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation to answer (in the absence of persons other than a person nominated by him to be present and any persons whom the Inspector may allow to be present) such questions as the Inspector thinks fit to ask and to sign a declaration of the truth of his answers. No answer given by any person in pursuance of a requirement imposed by the above shall be admissible in evidence against that person or the Husband or Wife of that person in any proceedings. k) Production of Any books or documents which by virtue of any of the relevant statutory provisions are required to be kept and to require any person to afford him such facilities and assistance with respect to any matter or things within that person’s control to enable the inspector to exercise any of the powers conferred on him i) Any other power which is necessary for the purpose. SECTION 21 This section states that if an Inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions he may serve on him an Improvement Notice. SECTION 22 This section states that if an Inspector is of the opinion that there is an Imminent Risk of Serious Personal Injury he may serve a Prohibition Notice. SECTION 39 This section authorises an Inspector to Prosecute in a Magistrates Court for offences under the Act in England and Wales. In Scotland the prosecution is taken by the Procurator Fiscal. So in summation an Inspector may:1. Give advice verbally or in writing 2. Issue Enforcement notices (Improvement or Prohibition) 3. Prosecute
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ENFORCEMENT NOTICES (IMPROVEMENT AND PROHIBITION)
The HASAWA Sections 21 and 22 provides for the use of two types of notices to require people to take action to improve standards or to prevent accidents. Such notices are backed by law and people can be prosecuted for failure to comply. IMPROVEMENT NOTICES Inspectors can issue an Improvement Notice when they consider that health and safety legislation is being contravened. A notice can be issued whether the legal requirements being broken are part of the Act or part of any relevant statutory provision. Inspectors must specify the legal requirements which they think are being broken and give reasons. The period allowed to put matters right must also be stated, and must not be less than 21 days, as this is the time limit for taking an appeal to an Employment Tribunal. Beyond that, the period allowed is left to the inspector’s discretion and will depend on such factors as the seriousness of the matters involved, and the ease with which the person concerned can take the action necessary to comply with the notice. Inspectors may state in the notice what action they think may be necessary to put matters right, and may in doing so refer to, for example, an Approved Code of Practice or other published guidance such as British Standards. An appeal against an Improvement Notice must be made to an Employment Tribunal within 21 days. An appeal automatically suspends the operation of an improvement notice, until the Tribunal sits. DEFERRED AND IMMEDIATE PROHIBITION NOTICES A Prohibition Notice may be issued when an Inspector considers that there is a risk of serious personal injury. The notice prohibits the carrying on of the work activity giving rise to risk of injury. If an Inspector considers that the risk of injury is imminent, the notice must take immediate effect and stop the work activity at once. If not, the prohibition notice must be deferred, stating that the work activity must be stopped, within a certain specified time. Apart from this difference of timing, immediate and deferred prohibition notices are identical. Both kinds of notice can be issued for working activities which are about to begin, as well as those already started. The Prohibition Notice can be issued for any activities to which the relevant statutory provisions apply. There does not have to be an actual breach of legal requirements although if it is thought that the law is being broken it must say so in the notice.
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The notice must also state the matters which in the Inspector’s view give rise to the risk of serious personal injury, and may, but does not have to, include directions on what steps should be taken to put matters right. An appeal against a Prohibition Notice must be made to an Employment Tribunal within 21 days. A Prohibition Notice is not suspended on appeal unless the Tribunal agrees. APPEALS AGAINST IMPROVEMENT AND PROHIBITION NOTICES A person on whom a notice is served may appeal to an Employment Tribunal. The appeal may challenge the Inspector’s views about whether the law has been broken or about risk of serious personal injury, the time limit in the notice, or the measures (if any) specified for remedying the matters. An appeal against an Improvement or Prohibition notice must be made to the Tribunal within 21 days of the notice being issued, although the Tribunal may extend the time limit where it is satisfied that it was not reasonably practicable to appeal within the period. An appeal is made by writing (either in a letter or using the official form IT 19) to the appropriate Secretary of the Tribunals at one of the following addresses:The Secretary Central Office of the Employment Tribunals (England and Wales) 93 Bridge Road London SE1W 8RE The Secretary Central Office of the Employment Tribunals (Scotland) Saint Andrew House 141 Nile Street Glasgow G1 2RU The following information must be included in the appeal: a) Name and address of the person making the appeal. b) Date of the improvement or prohibition notice appealed against and address of the premises concerned. c) Name and address of the inspector issuing the notice. d) Which aspect of the notice is being challenged. e) Grounds for appeal.
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An appeal automatically suspends the operation of an improvement notice until the outcome of the Tribunal hearing. However, suspension does not mean the time specified in the notice is extended. Thus if the Tribunal affirms the notice and does not itself extend the time limit the person concerned must still take the required action within the period originally specified. A Prohibition Notice is not automatically suspended on appeal. However, the Appellant can apply to the Tribunal for suspension, and if the Tribunal agrees, the notice is suspended from the time that the Tribunal so directs. After hearing the case the Tribunal can cancel the notice, or affirm it with such amendments as it sees fit. IN SUMMARY When served with an Enforcement notice the Employer can Comply with the notice (which happens in most cases) or can Appeal.
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OFFENCES AND PENALTIES FOR BREACHES OF HEALTH AND SAFETY LEGISLATION
OFFENCES There are two types of offences specified under the HASAWA act. These are:a) Summary offences that can only be heard in a Magistrates Court in England and Wales and a Sheriff court in Scotland. b) Offences Triable either way which may be prosecuted in either a Magistrates Court or a Crown Court in England/Wales and the Sheriff Court or High Court in Scotland. On Triable offences the Magistrates hear representations from both parties and decide whether to hear the case themselves or commit it to trial at the Crown Court. However if the Magistrates decide to hear the case themselves the Defendant has the right to have the case heard by a Jury at the Crown Court. If the Defendant wishes to do this then the Magistrates must go through the Committal procedure. This procedure is not available in Scotland. SUMMARY OFFENCE – MAGISTRATES COURT ONLY/SHERIFF COURT ONLY Summary offences are:a) To contravene requirements imposed under the Health and Safety inquiries (Procedures) Regulations 1975 or intentionally to obstruct any person in the exercise of their powers under Section 14 of HASAWA. b) To contravene any requirement imposed by a Health and Safety inspector under Section 20 (The Powers of an Inspector) or Section 25 (The Power to Deal with Imminent Danger). c) To prevent or attempt to prevent any other person from appearing before an Inspector or from answering any question to which, by virtue of the powers under Section 20 (the Powers of an Inspector) of HASAWA the Inspector may require an answer. d) Intentionally to obstruct Inspectors in the exercise of the performance of their powers or duties. e) To impersonate a Health and Safety Inspector.
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TRIABLE OFFENCES – MAGISTRATE OR CROWN COURT/SHERIFF COURT OR HIGH COURT IN SCOTLAND Triable offences are:a) Failure to discharge duties given under Sections 2-9 of the HASAWA. b) Failing to comply with Regulations made under Section 15 of HASAWA. c) To contravene any requirement or prohibition imposed by an improvement or prohibition notice. d) To contravene any requirement imposed by a notice served by the Health and Safety commission under Section 27 (1) (Obtaining Information) of the HASAWA. e) To use or disclose any information in contravention of Sections 27 (4) and 28 of HASAWA (Unlawful Use of Disclosure of Privileged Information) f) To knowingly make a false statement for the purpose of obtaining the issue of documents under any of the ‘relevant statutory provisions’ or in purported compliance with a requirement to furnish any information imposed by or under any of the ‘relevant statutory provisions’. g) Intentionally to make a false entry in any register, book, notice or other document required by or under any of the ‘relevant statutory provisions’, or to make or have in his/her possession a document so closely resembling any such document as to be calculated to deceive. h) To fail to comply with an order made by a Court to remedy an offence of which he/she has been convicted under any of the ‘relevant statutory provisions’. PENALTIES - MAGISTRATES COURT/SHERIFF COURT For breaches of Section 2-6 of the Health and Safety at Work Act 1974 (HASAWA), and breaches of Improvement notices, Prohibition notices and Court Remedy orders the maximum fine per offence is £20,000. Breaches of Improvement Notices, Prohibition and Court Remedy orders may also be given a prison sentence of up to 6 months. For offences committed under the remaining sections of HASAWA, Regulations such as Noise at Work, COSHH and other relevant statutory provisions the maximum fines per offence are £5,000.
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PENALTIES - CROWN COURT/SHERIFF COURT In the Crown Court/Sheriff Court an Unlimited Fine may be imposed and up to 2 years in jail for certain offences. The offences are:a) Carrying on an undertaking without a Licence issued by the Health and Safety Executive, when such a licence is a legal requirement; or contravening the terms or conditions of a licence issued by the Executive. b) Acquiring, possessing or using explosives in breach of any requirements of health and safety legislation. c) Failing to comply with a Prohibition and Improvement Notice. d) Wrongful disclosure of Information obtained under the Act.
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THE MANAGEMENT OF HEALTH AND SAFETY REGULATIONS 1999
MAIN REQUIREMENTS OF THE REGULATIONS These Regulations place the primary responsibility for ensuring health and safety on Employers. In carrying out their responsibility Employers are to carry out risk assessments and follow the principles of prevention. They must provide effective health and safety management arrangements and carry out health surveillance if necessary. Competent personnel are to be appointed to advise the Employer on Health and Safety and procedures for dealing with serious and imminent danger established and also contacts with external emergency services if necessary. Employees are to be provided with information and training and Employees are also given responsibilities under the Regulations. There are also duties to arrange co-operation and co-ordination between different Employers and to protect temporary workers and employees of other organisations working on his premises. Finally there are duties for the protection of new and expectant mothers and Young Persons. REGULATION 3 – RISK ASSESSMENT Employers and self-employed have to make a suitable and sufficient assessment of the risks to anyone who might be affected by their working activities. Assessments have to be revised if they cease to be valid. Employers with five or more employees have to record the significant findings of their assessment and record any group of employees identified to be a high risk. The Regulation requires Employers to review their risk assessment where they apply to young persons. The Employer must take account of:1. 2. 3. 4. 5. 6. The inexperience of the young person The layout of the work station Any exposure to physical, biological and chemical agents The use of work equipment and the way it is handled. The organisation of processes and activities The extent of Health and Safety training provide to young person
The Employer must also take into account the requirements of the Fire Precautions (Workplace) Regulations 1997. Also Regulation 16 requires that the risk assessment should include any particular risks to new or expectant mothers.
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REGULATION 4 - PRINCIPLES OF PREVENTION TO BE APPLIED Regulation 4 requires an Employer to implement preventive and protective measures on the basis of general principles of prevention specified in Schedule 1 to the Regulations. These are: 1. 2. 3. 4. Avoiding risks Evaluating the risks which cannot be avoided Combating the risks at source Adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment, working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health Adapting to technical progress Replacing the dangerous by the non-dangerous or the less dangerous 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 Giving collective protective measures priority over individual protective measures; and Giving appropriate instructions to employees
5. 6. 7.
8. 9.
REGULATION 5 – HEALTH AND SAFETY ARRANGEMENTS Appropriate arrangements must be made for the effective planning, organisation, control, monitoring and review of preventative and protective measures (in other words, for the management of health and safety). Again, employers with five or more employees must have their arrangements in writing. REGULATION 6 – HEALTH SURVEILLANCE In addition to the requirements of specific regulations such as Control of Substances Hazardous to Health (COSHH) and Asbestos regulations, consideration must be given to carry out health surveillance of employees where there is a disease or adverse health condition identified in risk assessments and valid detection techniques exist. REGULATION 7 – HEALTH AND SAFETY ASSISTANCE The employer must appoint one or more competent persons to assist him in complying with the legal obligations imposed on the undertaking (including Part II of the Fire Precautions [Workplace] Regulations 1997). The number of persons appointed depends on the size of the establishment and the range and severity of the risks.
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If more than one competent person is appointed, then arrangements must be made for ensuring adequate co-operation between them. The Competent person(s) must be given the necessary time and resources to fulfil their functions. This will depend on the size of the undertaking, the risks to which employees are exposed and the distribution of those risks throughout the undertaking. The employer must ensure that competent person(s) who are not employees are informed of the factors known (or suspected) to affect the health and safety of anyone affected by business activities. Competent people are defined as those who have sufficient training and experience or knowledge and other qualities to enable them to perform their functions. Persons may be selected from among existing employees or from outside. Where there is a suitable person in the employer’s employment, that person shall be appointed as the ‘competent person’ in preference to a non-employee. REGULATION 8 – PROCEDURES FOR SERIOUS AND IMMINENT DANGER AND FOR DANGER AREAS Employers are required to set up emergency procedures and appoint competent persons to ensure compliance with identified arrangements, to devise control strategies as appropriate and to limit access to areas of risk to ensure that only those persons with adequate health and safety knowledge and instruction are admitted. REGULATION 9 – CONTACTS WITH EXTERNAL SERVICES Employers must ensure that, where necessary, contacts are made with external services. This particularly applies with regard to first-aid, emergency medical care and rescue work. REGULATION 10 – INFORMATION FOR EMPLOYEES Employers must provide Employee (or before employing a child, provide a parent with) information on risks identified by the assessments. Clear instruction must be provided concerning any preventative or protective control measures including those relating to serious and imminent danger and fire assessments. Details of any regulations must also be communicated Also risks arising from contact with other employer’s activities.
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REGULATION 11 – CO-OPERATION AND CO-ORDINATION Employers who work together in a common workplace have a duty to cooperate to discharge their duties under relevant statutory provisions. They must also take all reasonable steps to inform their respective employees of risks to their health or safety which may arise out of their work. Specific arrangements must be made toe ensure compliance with fire legislation (i.e. the Fire Precautions [Workplace] Regulations 1997) REGULATION 12 – PERSONS WORKING IN HOST EMPLOYERS OR SELF-EMPLOYED PERSONS UNDERTAKINGS Extends the requirements of regulation 11 to include employees working as sole occupiers of a workplace under the control of another employers. Such employees would include those working under a service of contract and employees in temporary employment businesses under the control of the first employer. REGULATION 13 – CAPABILITIES AND TRAINING Employers need to take into account the capabilities of their employees before entrusting tasks. This is necessary to ensure that they have adequate health and safety training and are capable enough at their jobs to avoid risk. To this end consideration must be given to recruitment including job orientation when transferring between jobs and work departments. Training must also be provided when other factors, such as the introduction of new technology and new systems of work or work equipment arise. Training must be repeated periodically where appropriate and adapted to take account of any new or changed risks to the health and safety of the Employees concerned and to take place during working hours. REGULATION 14 – EMPLOYEES DUTIES Employees are required to follow health and safety instructions by using machinery, substances, transport etc. in accordance with the instructions and training that they have received. They must also inform their Employer (and other Employers) of any dangers or shortcoming in the health and safety arrangements, even if there is no risk of imminent danger. REGULATION 15 – TEMPORARY WORKERS Temporary workers are to be provided with safety information such as qualifications required to perform the task safely or any special arrangements such as the need to provide health surveillance. ______________________________________________________________ Page 44 01 October 2007
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REGULATION 16 – RISK ASSESSMENT IN RESPECT OF NEW OR EXPECTANT MOTHERS Where the work is of a kind which would involve risk to a new or expectant mother or her baby, then the assessment required by Regulation 3 should take this into account. If the risk cannot be avoided, then the Employer should take reasonable steps to adjust the hours worked, offer alternative work, or give paid leave for as long as necessary REGULATION 17 – CERTIFICATE FROM A REGISTERED MEDICAL PRACTITIONER IN RESPECT OF NEW OR EXPECTANT MOTHERS Where the woman is a night shift worker and has a medical certificate identifying night shift work as a risk then the Employer must put her on day shift or give paid leave for as long as is necessary. REGULATION 18 – NOTIFICATION BY NEW OR EXPECTANT MOTHERS The employer need take no action until he is notified in writing by the woman that she is pregnant, has given birth in the last six months, or is breastfeeding. REGULATION 19 – PROTECTION OF YOUNG WORKERS Employers of young persons shall ensure that they are not exposed to risk as a consequence of their lack of experience, lack of awareness or lack of maturity. No employer shall employ young people for work which: Is beyond his physical or psychological capacity Involves exposure to agents which chronically affect human health Involves harmful exposure to radiation Involves a risk to health from extremes of temperature, noise or vibration Involves risks which could not be reasonably foreseen by young persons.
This Regulation does not prevent the employment of a young person who is no longer a child for work: Where it is necessary for his training Where the young person will be supervised by a competent person; and Where any risk will be reduced to the lowest level that is reasonably practicable.
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Nebosh National General Certificate
SOURCES OF INFORMATION
It is essential to keep abreast of new Health and Safety Legislation and other developments in the Health and Safety field. Copies of Acts and Regulations are sold by HMSO. These, however, generally give only a broad outline but it is useful to know the aim of the Act or Regulation. Sources of information on Health and Safety could include:1. HEALTH AND SAFETY EXECUTIVE PUBLICATIONS The main source of information is in the publications of the Health and Safety Executive. The HSE publishes a Price List every six months which lists all their current publications. This book is available free from your local HSE Office or from the HSE enquiry point:HSE Books PO Box 1999 SUDBURY Suffolk CO10 6FS Tel: 01787 881165 Fax: 01787 313995
The Price List and Publications are also available from Dillons Bookstores nationwide and can be ordered at any branch of Ryman the Stationer or Ryman Computer Store. The H&SE Publications Include:a) Approved Codes of Practice (ACOP) The purpose of these are to provide practical guidance to meet the requirements of Regulations or other statutory provisions. ACOP's may be used in evidence in proceedings and acts as the standard against which the Defendants actions will be measured. Some ACOP,s are published under the COP series but most are published under the L (Legal) series. b) Guidance
There are 2 Types of Guidance. Firstly is Guidance specific to Regulations and these are published under the L (Legal) series. The second type gives practical guidance on the application of Legislation and is published under the HSG series and are called guidance notes.
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Nebosh National General Certificate c) Guidance Notes
NGC1 Element 1
These give guidance on the best methods of dealing with safety problems. They have no legal standing but should be followed whenever possible because it is guidance from the HSE and indicates the way they would expect the Company to meet their health and safety problems. There are 5 series of guidance notes:1. 2. 3. 4. 5. Chemical Safety Environmental Hygiene General Medical Plant and Machinery CS Series EH Series GS Series MS Series PM Series
The HSE also publishes other safety information in various publications not listed in the above and also provides free leaflets on a whole range of subjects. Also available from the HSE on a subscription basis is the HSC Newsletter published 6 times per annum and the HSE News Bulletin published weekly available from:Health and Safety Executive Public Enquiry Point Information Centre Broad Lane SHEFFIELD S3 7HQ Tel: 01142 892345
The HSE also have a computer based information and advisory service with enquiry points at HSE area offices. Information and advice on occupational health problems can be obtained from the Employment Medical Advisory Service (EMAS). The EMAS telephone numbers are available at local HSE area offices. 2 LOCAL AUTHORITY ENVIRONMENTAL HEALTH DEPARTMENTS Local authorities have responsibility for enforcing health and safety legislation in a wide variety of non-industrial premises, e.g. various consumer services, launderettes etc and can be a source of information.
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Nebosh National General Certificate
3 ORGANISATIONS INVOLVED IN SAFETY There are a number of organisations which are involved almost exclusively in Health and Safety and publish monthly journals which are valuable sources of information. Three of these are:a) Institution of Occupational Safety and Health (IOSH) Based in Leicester, the Institution publishes a monthly journal "The Safety & Health Practitioner". Royal Society for the Prevention of Accidents (RoSPA) Based in Birmingham. British Safety Council (BSC) (Based in London)
b)
c)
4. PUBLICATIONS There are a considerable number of books both general and specific on health and safety published and available from bookshops. Two examples are Redgraves, which contains all current legislation at the time it is published and also refers to relevant case law and Ridleys which is a general health and safety handbook. A useful publication is "Croners Health and Safety at Work" published by Croner Publications of Kingston-upon-Thames. This is in a loose leaf form and covers a wide range of Health and Safety topics and is updated at 3 monthly intervals. 5. BRITISH STANDARDS
A number of these relate to safety such as BS 5304 Safeguarding of Machinery and BS 2092 Eye Protection. Whilst not having legal standing they will be used as yardsticks of good safety practice. 6. PROFESSIONAL INSTITUTES/TRADE ORGANISATIONS
These often produce codes of practice, e.g. the Institute of Electrical Engineers Regulations on Electrical Installations. 7. CONSULTANTS AND SPECIALISTS
Advice can be obtained from organisations such as Universities, Polytechnics who offer Consultancy services as well as Specialists in various areas.
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Nebosh National General Certificate 8. TRAINING BOARDS
NGC1 Element 1
Training Boards specify training standards but some of their publications provide substantial information on safety matters. 9. MANUFACTURERS
Manufacturers, suppliers and importers have a duty under HASAWA section 6 to provide information which will enable the users of their products to be able to use them with safety. Manufacturers of Personnel Protective Equipment (PPE) will meet the various British Standards relating to their products and provide the information on their levels of protection. 10. TRADE UNIONS AND THE TUC
Unions and the TUC produce guides for Safety Representatives and many Unions also have full time Officers who deal with Health and Safety matters. 11. POSTERS AND SIGNS
The Employer must display certain Statutory notices which provide information to Employees. Other posters can be used to remind staff of general workplace hazards or to supply specific safety campaigns. Signs remind employees of safety requirements and also draw to the attention of visitors who are not familiar with the workplace potential hazards. 12. COMPANY SOURCES Sources of information within the Company can include:1) 2) 3) 4) 5) 6) 7) 8) Risk assessments Inspection reports Accident/incident records Medical records Safety representatives Safety committee reports Company safety policy Maintenance reports
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Nebosh National General Certificate
NGC1 ELEMENT 1 QUESTIONS
1 Outline the possible benefits to an Organisation of achieving good standards of health and safety.. Outline the methods that may be used to assess an Organisations health and safety performance. Replacement and retraining of staff is a cost that an Organisation may face following a workplace accident. List EIGHT other possible costs to an Organisation when an Employee has been hurt in such an accident. 4 Replacement or repair of damaged plant and equipment is a cost that an Organisation may face following a workplace accident. List EIGHT other possible costs to an Organisation when an Employee has been seriously injured in such an accident. 5 Outline the main components of a health and safety management system. a) b) Define the term “Negligence” Outline the possible defences available to Employers in cases of alleged negligence. Explain the differences between Civil Law and Criminal Law. Explain the differences between HSC Approved Codes of Practice and HSE Guidance Notes giving an example of EACH. Explain the meaning of the following terms: (1) Common Law (2) Statute Law 10 a) List FOUR categories of persons other than his own Employees to whom an Employer owes a duty to take reasonable care. Outline the procedures that an Organisation might adopt in order to ensure the safety of visitors to its premises. (4) (4) (8)
2
(8)
3
(8)
(8)
(8) (2)
6
(6) (8) (8)
7 8
9
(2)
(6)
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Nebosh National General Certificate 11
NGC1 Element 1
What subject areas are dealt with by Employment Tribunals in health and safety legislation. Explain the meaning of the following terms: (a) Delegated Legislation (b) Judicial Precedent
(8)
12
(4) (4)
13
Explain using TWO practical examples the meaning of the term “So far as is reasonably practicable”
(8)
14 a)
Outline the general duties placed on Employees by Sections 7 (6) and 8 of the Health and Safety at Work etc. Act 1974. Outline a specific duty placed on Employees by Regulation 14 of the Management of Health and Safety at Work Regulations 1999. Describe with an example in EACH case SIX ways in which an Employer may fail to fulfill his duties to his Employees under Section 2 of the Health and Safety at Work etc. Act 1974. Outline the three standard conditions that must be met for an Employee to prove a case of alleged negligence against an Employer in a Civil action Explain the meaning of the term ”Vicarious Liability” Explain using an example in EACH case the Circumstances under which a health and safety inspector may serve: (1) An Improvement Notice (2) A Prohibition Notice Outline the effect on the notice of appealing against EACH type of Enforcement Notice. List the powers given to Inspectors appointed under the Health and Safety etc. Act 1974 Outline with and example of each, the difference between Health and Safety Regulations and HSC approved Codes of Practice (2) (2)
b)
(2)
15 a)
(12)
b)
(6) (2)
c) 16 a)
b) 17
(4)
(8)
18
(8)
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NGC1 Element 1 19
Nebosh National General Certificate
With reference to the Health and Safety at Work etc. Act 1974 explain: a) What is meant by the term “Safe system of Work” in the context of Section 2 (2) a to e of the Act The main requirements of an effective safety policy under Section 2 (3) of the Act within the three areas of Statement, Organisation and Arrangements Explain the duties of Manufacturers and suppliers of machinery under Section 6 of the Act.
(6)
b)
(6)
c)
(8)
20 a)
What are the penalties for failing to comply with an Improvement or Prohibition Notice Outline the differences between an Improvement and Prohibition Notice Outline the powers of the Crown Court with regard to breaches of the Health and Safety at Work etc. Act 1974. Outline the functions of the various English Courts and Tribunals in dealing with breaches of health and safety legislation and disputes in that field. Outline the main functions of: (1) Criminal Law (2) Civil Law
(4)
b)
(4)
21
(8)
22
(8)
23
(4) (4)
24 a)
Outline FOUR powers available to an Inspector when investigating a workplace accident Identify the two types of enforcement notice that may be served by an Inspector, stating the conditions that must be satisfied before each notice is served. Outline the three standard conditions that must be met for an employee to prove a case of negligence against and employer State the circumstances in which an employer may be held vicariously liable for the negligence of an employee
(4)
b)
(4)
25 a)
(6)
b)
(2)
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Nebosh National General Certificate
NGC1 Element 1
HEALTH AND SAFETY FOUNDATIONS
NOTES
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Nebosh National General Certificate
HEALTH AND SAFETY FOUNDATIONS
NOTES
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Nebosh National General Certificate
NGC1 Element 1
HEALTH AND SAFETY FOUNDATIONS
NOTES
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Nebosh National General Certificate
HEALTH AND SAFETY FOUNDATIONS
NOTES
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NGC1 Element 1
HEALTH AND SAFETY FOUNDATIONS
NOTES
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Nebosh National General Certificate
HEALTH AND SAFETY FOUNDATIONS
NOTES
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NGC1 Element 1
NGC1 ELEMENT 1:- HEALTH AND SAFETY FOUNDATIONS
DEFINITIONS
What is Health and Safety? Health:- The protection of people from illness resulting from exposure to hazardous substances and materials. Safety:- The protection of people from physical injury. The problems associated with the safety side has been known for many years for example guards have been required on dangerous machines since the 19th Century whist the knowledge of the effects to exposure from hazardous chemicals have been a much slower development Other definitions used in the field of Health and Safety include:Welfare:- Looking after peoples basic needs. Environment:- The surroundings in which an organisation operates including air, water, land , natural resources, flora, fauna, humans and their interrelationships (International Standards Organisation 1992) Accident:- An unwanted, unforeseen, unplanned event which results in a loss of some kind. Incident/Near Miss:- An unwanted, unforeseen, unplanned event that had the potential to result in a loss. Dangerous Occurrence:- A near miss with serious injury potential, specifically defined in Law (RIDDOR 1995) Occupational Health:- Includes any acute or chronic ill health caused by chemical or biological agents as well as adverse effects on mental health (Health and Safety Executive 2003) Acute:- Resulting from a single short term exposure producing an immediate effect which is usually reversible e.g. Alcohol affecting the nervous system. Chronic:- Resulting from prolonged or repeated exposure producing a gradual effect that may be unrecognised for a number of years and may be irreversible e.g. Alcohol causing cirrhosis of the liver. -------------------------------------------------------------------------------------------------------01 October 2007 Page 1
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Nebosh National General Certificate
Hazard:- Something with the potential to cause harm May be physical, chemical, Biological, ergonomic or psychological e.g. Heat, Light, Noise, Acids and Alkalis, Metals, Animal borne, Job movements. Risk:- The likelihood that harm will occur and the severity of the harm. E.g. tripping over cables, coming into contact with machinery When applied to a work situation health and safety responsibility is placed on employers and generally means that the employer should:a) Promote and maintain the mental, physical and social well being of employees. b) Protect employees and others affected by an organisations activities from risks to their health and safety c) Establish a management framework to implement policies and achieve continual improvement in health and safety
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Nebosh National General Certificate
NGC1 Element 1
REASONS FOR GOOD HEALTH AND SAFETY PRACTICE
Health and Safety at Work is achieved by the prevention of accidents and illhealth and there are three main reasons for the prevention of accidents, and ill-health which require it to be given the same priority as other matters such as quality, progress, profit, etc. The three reasons are: 1) 2) 3) 1) Humanitarian/Moral Legal Cost HUMANITARIAN/MORAL
Past experience has shown that the majority of accidental deaths, injuries and illness could have been prevented. There are few people who would not care if their action or inaction was shown to result in suffering by someone else. Attitudes in society are increasingly focusing on health, safety and environmental issues. The media regularly expose instances of peoples’ health and safety being placed at risk. Linked with the humanitarian objective of accident prevention is employee morale, customer relationships and public relations, all of which can be adversely affected by a poor accident or ill-health record. According to the HSE Annual Report provisional estimates for 2002/03 there were: Accidents at Work 2004/2005 Fatal accidents to employees Fatal accidents to self employed Total fatal accidents to the public (246 suicides and trespassers on Railways) Major injuries More than 3 days absence
169 51 361 30,213 120,346
In the past, the focus has been mainly on safety issues, possibly because accidents are often dramatic and very visible. The long-term nature of many health issues (deafness, musculo-skeletal disorders, asthma, cancer etc.) possibly makes them less dramatic. It is also easier to pretend that damage to health is not work related or that the resulting disability is not really as severe as the victim claims to be.
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Nebosh National General Certificate
Occupational Illness Deaths due to Asbestosis ( Death certificates 2000) Deaths due to Mesothelioma ( Death certificates 2000) Asbestos-related lung cancer (Ind. injuries Reports 2000) Cancers Deaths work related (Estimate of 4% of total cancer deaths based on Doll and Peto research in USA 1981) Work related musculo-skeletal disorders estimated cases seen by rheumatologists and occupational physicians 2001 Musculo-sketal disorders (DSS new cases 2000/01) Vibration white finger (DSS new cases 2000/01 Carpal tunnel syndrome (DSS new cases 2000/01) Occupational deafness (DSS new cases 2000) Total occupational deafness benefits being paid (at least 50dB loss) in 2000 Infections (Consultants communicable disease control) 2001 Dermatitis estimated cases per year by specialist physicians Poisonings/injuries from chemicals RIDDOR 97 to 01 average Occupational asthma – cases reported to Surveillance of Work Related and Occupational Respiratory Disease (SWORD) project estimate 2001 Stress Reported by psychiatrists 2001 Stress Reported by occupational health physicians 2001
186 1628 126 6000
7800 377 3317 600 226 14,000 694 4200 1620
650 3048 4371
The table above shows that occupational ill health is in fact a greater problem even than occupational injury. Exposure to hazards at work lead to damage to health and should be regarded as accidents – even though they may take some years to happen and many more years to become apparent in some cases. 2) LEGAL
The old style prescriptive legislation attempted to anticipate and set out in detail what would be needed in every organisation to prevent accidents and ill health. This approach failed to stop the ever-increasing number of occupational injuries and disease. It is also possibly contributed to a culture in which the aim was to avoid prosecution by complying with the (ofteninadequate) technical requirements of the law. Modern health and safety laws tends to set targets rather than relying on compliance with specific technical requirements. The broad target is the adequate control of risks to the health and safety of employees and others. Put very simplistically, if employers and others fail to do all that they could reasonably do to prevent work related injuries and occupational ill health then they have almost certainly broken the law. ______________________________________________________________ Page 4 01 October 2007
Nebosh National General Certificate
NGC1 Element 1
Ever since the Health and Safety at Work etc Act (1974) required every employer to “ensure so far as is reasonably practicable, the health, safety and welfare at work of all his employees” (and others) there has been an implied duty to assess and control risk. More recently, this implied duty has been made explicit by laws such as : the Management of Health and Safety at Work Regulations 1999 the Manual Handling Operations Regulations 1992 and the Control of Substances Hazardous to Health Regulations 1999 and many others. All of these laws place an absolute duty upon employers to assess risks to the health and safety of employees and others) arising from the premises they control and the work activities they carry out. The significant findings of the assessments must be recorded. This puts the onus upon the employer to manage the risk by identifying the physical measures needed such as guarding etc. and the organisational measures necessary (identifying responsibilities, training staff, providing information, monitoring performance etc.). Specific legal requirements still exist, mainly in the form of Regulations and Approved Codes of Practice, but words and phrases such as “adequate”, suitable and sufficient” and “so far as is reasonably practicable” require active management rather than passive minimal compliance. In addition to the Criminal Law we also have the Civil Law which compensates persons who have suffered injury or ill-health. Enforcement Action Enforcement action will be explained in Section 3. There is a trend toward more prosecutions of individuals, particularly senior managers and directors etc. where their negligence, consent, or connivance has resulted in offences. Offences such as breach of Enforcement Notices and operating (e.g. asbestos removal) without a license carry prison sentences. Enforcement Action (Health & Safety Executive) 2003/04 Informations laid before Court 1756 (prosecutions “attempted”) Convictions 1305 (74%) Average penalty £9858 Improvement notices issued 6776 Immediate prohibition issued 4438 Deferred prohibition issued 81
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NGC1 Element 1 3) COST
Nebosh National General Certificate
The Hidden Cost to Employers It has been estimated that workplace accidents cost the nation between 2.12.6% of the gross domestic product. This is between £14.5 and £18.1 billion pounds per annum (HSE figures) Work-related injuries and ill-health cost industry 30 million lost days each year; nearly ten times the days lost to strikes. The cost of health and safety control programmes (precautionary and preventive measures) are usually easily recognised and calculated as a bottom-line expense. The cost of failure is less easy to calculate as the losses tend to be absorbed into operating costs. Costs include: Accident investigation; Payments to injured persons Replacement labour Training for replacement labour Payments for non productive time (witnesses, investigators, first aiders, clearing up etc.); Repair of equipment Replacement of equipment Loss of business Loss of reputation Compensation payments Legal costs and fees Increased insurance premiums
Many of the factors in the above list are not covered by insurance. Insurance All private sector Employers are required to have Employers Liability Insurance under the Employers Liability (Compulsory Insurances) Act 1969 whose aim is to ensure that employees who are injured in work can receive compensation . Under the act it is an offence to: Not to be insured To fail to display the certificate or a copy Fail to send a copy when requested by an Inspector Fail to produce a copy on demand by an Inspector Refuse an Inspector to inspect the policy document.
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Nebosh National General Certificate
NGC1 Element 1
Insurance claims under Employers liability insurance have outstripped premium increases in recent years, partly due to increased public awareness and concern about health. Also people are more ready to claim, and compensation as well as legal costs are continuing to rise. These factors are causing great concern among insurers who fear the future cost of today’s health hazards (particularly issues such as repetitive strain injury and passive smoking). Employers liability insurance premiums are rising dramatically for employers who cannot show evidence that these risks are being managed and some Companies may well become uninsurable. As Employers Liability Insurance is a legal requirement a Company cannot legally trade without it. So in summary the benefits of good health and safety practice are: Reduced accidents Reduced damage to equipment Reduced absenteeism Improved production Reduced insurance premiums Improved morale Improved company reputation Reduced fines, Reduced compensation claims
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Nebosh National General Certificate
SAFETY MANAGEMENT SYSTEMS
The Health and Safety Executive in the publication Successful Health and Safety Management HS(G) 65 suggests successful Health and Safety Management can be achieved by the following six stages. Policy:- Health and safety aims of the organisation, health and safety objectives and management commitment Organising:- Clear roles and responsibilities, Competence, commitment and control, Co-operation, Communication Planning and Implementation:- Identify hazards, assess risks, and decide how risks can be eliminated or controlled. Sets standards against which performance can be measured. Measuring performance:- Be used as a means of determining the extent to which health and safety policy and objectives are being implemented and should be both reactive and proactive. Reviewing:- Analysing data gathered through monitoring to see whether performance is adequate Audit:- Systematic critical examination of each stage of an organisations management systems and procedures
POLICY
Policy development Organisational development
ORGANISING
AUDIT
PLANNING & IMPLEMENTING Developing techniques of planning, measuring and reviewing
MEASURING PERFORMANCE
Step 1:- The policy
Information link
REVIEWING PERFORMANCE
Feedback loop to improve performance
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CONTROL LINK
Nebosh National General Certificate Step 1 The Policy
NGC1 Element 1
The Health and Safety Policy influences all workplace activities such as selection of people, equipment, materials and the way work is done as well as specifying the procedures for identifying hazards, assessing the risks and preventing or controlling them. To ensure the policy is working the following questions need to be asked:a) Are staff aware of the policy and do they understand it?. b) Is the policy compatible with overall Company policy?. c) Does the policy delegate responsibilities to Competent individuals?. d) Does the policy indicate to Directors and Managers how to assess risks and allocate resources?. e) Is the policy a working document?. Step 2 Organisation:Successful Organisations have the necessary organisational structure to ensure that health and safety is properly dealt with. Successful Organisation can be achieved by that the following four elements are properly in place:a) Control This involves Policies, Procedures, Organisational Development, Planning, Auditing, Monitoring and Review. b) Consultation Consultation demonstrates commitment which should lead to co-operation between all elements of the Organisation. c) Communication Successful communication should flow in all directions. d) Competency Needs to exist within the Organisation and needs to be considered for all Recruitment, staff transfers and training. -------------------------------------------------------------------------------------------------------01 October 2007 Page 9
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Nebosh National General Certificate
Step 3: Planning, Setting Standards and Implementation All Organisations should establish standards to ensure adequate identification of hazards and assessment of risk take place and performance can be compared against recognisable standards. To do this the Organisation should:a) Generate SMART objectives. b) Identify hazards, assess risks and establish priorities according to risk. c) Set performance standards d) Have plans to deal with non routine, new work and serious risks. e) Monitoring arrangements to ensure standards are met. Step 4:- Measuring Performance Organisations should measure their performance against predetermined standards to identify weaknesses and improvements in the systems. Some points to consider are:a) Directors and Managers may not be aware of practices occurring in their Departments. b) Monitoring needs to be both proactive and reactive c) Monitoring systems should be introduced in each Department. Step 5:- Reviewing and Auditing Improvement will be obtained by continuous reviewing and auditing of performance. The assessment should:a) Be carried out against suitable health and safety standards and specific SMART objectives. b) Identify areas where standards are poor or inadequate. c) Analyse accident, incident and ill health data.
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Nebosh National General Certificate
NGC1 Element 1
INTRODUCTION TO THE LAW
WHAT IS LAW? The term ‘Law’ may be defined as: “A rule of human conduct, imposed upon and enforced among, the members of a given State.” (Law made simple by Barker & Padfield) The purposes of Law include: (a) The control of anti-social behaviour; (b) The Regulation of relationships among individuals or between individuals and the State; (c) The resolution of conflicts; (d) The setting of clear standards for behaviour with penalties for noncompliance.
SOURCES OF LAW Apart from European Law the Law in the United Kingdom originates from 2 sources: 1) COMMON LAW The Common Law was originally based on the merging of various local customs and laws as a result of the Decisions of the Royal Judges who toured the Country. It is unwritten since it depends upon a Judge’s interpretation of the customs of the realm. (So Common law is Judge made Law) Principles derived from judgements made in earlier cases create binding precedents. Binding precedents are decisions made in a Higher Court which is binding on all Lower Courts. Thus a decision made by the House of Lords is binding on all Lower Courts. Since 1966 The House of Lords is no longer bound to follow its own decisions but it would be rare for the House of Lords to overrule a previous precedent. The Court of Appeal binds all lower courts (i.e.
High Court, County Court). Decisions made by Courts of equal status create persuasive precedent only. This system is called Judicial Precedent.
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NGC1 Element 1 2) STATUTE LAW
Nebosh National General Certificate
A Statute is a written law passed by the approved legislative process of the State, i.e. Parliament, and it supersedes all other forms of Law. Thus Statute Law can override the Common Law since it is enacted by the Sovereign Power and is, therefore, superior to Judicial Decision. Statute law is a source of both Criminal and Civil Law. Some Statutes, such as the Health and Safety at Work etc. Act 1974 (HASAWA Act 1974) are entirely Criminal Law. Similarly some Statutes are actionable only under Civil Law (e.g. the Occupiers’ Liability Act 1957). There are 3 distinct Levels of duty used in Statute Law and these are:a) Absolute. Absolute duties are worded as “shall, must, will” such as in the Provision and Use of Work Equipment Regulations 1998, Regulation 9, which requires that: “Every employer shall ensure that all persons who use work equipment have received adequate training for the purposes of health and safety …” (so absolute duties must be followed). b) Practicable. This means they must be carried out if, in the light of the current state of knowledge and invention, it is feasible to do so, even though its implementation may be difficult, inconvenient and/or costly. For example, the Provision and Use of Work Equipment Regulations 1998, Regulation 11, requires “The provision of fixed guards enclosing every dangerous part or rotating stock-bar where and to the extent that it is practicable to do so.” c) Reasonably Practicable. Although this is not defined in any Act it has acquired meanings though interpretations by the Courts.To carry out a duty “so far as is reasonably practicable” means that the degree of risk in a particular activity or environment can be balanced against the time, trouble, cost and physical difficulty of taking measures to avoid the risk. If these are so disproportionate to the risk that it would be quite unreasonable for the persons concerned to have to incur them to prevent it, they are not obliged to do so. It is important to remember that the size and financial position of the employer are not taken into account. It should however, be borne in mind that the final arbiter of what is “reasonably practicable” will be the Courts. If someone is prosecuted for failing to comply with a duty “so far as is reasonably practicable”, they have to prove that it was not “reasonably practicable” to meet the requirement. This offers defendants a potential defence if they can show, on the balance of probability, that in the circumstances they had done everything to prevent a breach of the law.
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Nebosh National General Certificate TYPES OF LAW
NGC1 Element 1
There are 2 types of Law we have to consider and these are:1) CIVIL LAW (Sue) Civil law is concerned with the conduct between men. The action is brought by an individual and can be insured against. The outcome is compensatory and the burden of proof is on the balance of probabilities. The source of most Civil Law is Common Law but some Civil Law, for example the Occupiers’ Liability Act 1957, is Statute Law. This is the type of Law under which someone is Sued. So we may define Civil Law as:Civil law is the unwritten Law between men based on Judicial Precedent. The Burden of Proof is on the Balance of Probabilities and the outcome is compensatory or remedial. The courts that deal with civil claims are:_
ENGLAND/WALES SCOTLAND
1) 2) 3)
County Court High Court Higher Courts on appeal
1) Sheriff Court 2) Court of the Court of Session 3) Higher Courts on appeal
2) CRIMINAL LAW (Prosecution) Criminal Law regulates the conduct between the State and man. The burden of proof in criminal cases is ‘beyond reasonable doubt’ and the outcome is punitive e.g. custody, community sentence, fine, etc. This is the type of Law under which someone is Prosecuted. The action is brought by the State and cannot be insured against. So we may define Criminal Law as:A written law passed by Parliament for the conduct between the State and Man, the burden of proof being beyond reasonable doubt and the outcome penal or punitive, i.e. jailing or fining or both. The courts that deal with criminal prosecutions are: ENGLAND/WALES 1. Magistrates Court 2. Crown Court 3. Higher courts on appeal SCOTLAND District Court or Sheriff’s Court Sheriff’s Court or the High Court of Justiciary Higher Court on appeal
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NGC1 Element 1
Nebosh National General Certificate
DELEGATED LEGISLATION/SUBORDINATE LEGISLATION Whereas Acts of Parliament generally contain the legislation intended, in many modern Statues authority is given to persons and bodies to issue Regulations which are legally binding. Such authority is conferred by a statute, and must be exercised within the limits set out in the Act. Any authority to legislate by delegation is always subject to the continuing consent of Parliament, and the authority can be replaced or withdrawn at any time. (This authority to bring in Legislation under the Act is known as Delegated Legislation.) and in Health and Safety the power is delegated to the appropriate Secretary of State. In the field of safety, we shall come across many Regulations, e.g. Asbestos Regulations, Noise at Work Regulations, control of Substances Hazardous to Health Regulations etc. an Employer can insure against Civil claims for damages but not for fines and penalties imposed for successful prosecutions. EUROPEAN DIRECTIVES The European Community are attempting harmonise health and safety legislation across the Community. To do this they issue Directives which are derived by consultation, negotiation and are approved by Qualified Majority Voting of the Member States. These are legally binding but require further action by Member States. They lay down a “Framework” of the intended results of the Legislation leaving it to the individual Member States as how these aims are achieved and giving a target date for implementation. In the U.K. these Directives are implemented in the form of Regulations which means they are Criminal Law. So in summary the differences between Criminal and Civil Law are:Criminal Law Source of Law Who between Intended result? Courts Insurance? Mostly statute:- Written State and man Punishment(Jail/Fines) Magistrates and Crown No Civil Law Mainly Common Unwritten Individuals Balance of Probabilities Compensation County and High Yes
Burden of Proof? Beyond reasonable doubt
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ENGLISH & WELSH COURTS
European Court of Justice .
House of Lords
Court of Appeal
High CROW Court
Crown Court
County Court CIVIL (SUE) Compensation
Magistrates Court CRIMINAL (PROSECUTED) Jail or Fines or both
SCOTTISH COURTS
House of Lords Court of Session Inner House Court of Criminal Appeal High Court of Justiciary Sheriff Court Sheriff Court CIVIL (SUE) Compensation District Court CRIMINAL (PROSECUTE) Jail or Fines or Both
Court of Session Outer House
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CIVIL LAW
Civil Law is defined as: The unwritten Law between men based on Judicial Precedent. The Burden of Proof is on the Balance of Probabilities and the outcome is Compensatory or Remedial. Actions under Civil Law in England are known as Torts i.e. a Tort is a Civil Wrong as distinct from Criminal Wrong. In Scotland Civil Wrongs are called Delicts. In England the person taking the action is called the Claimant in Scotland the Persuer. In England the person defending the action is called the Defendant in Scotland the Defender. When considering the Civil Law in industrial situations there are 3 elements to Civil Law claims. 1) DUTY OF CARE Civil Law imposes on all of us a duty to try to avoid injuring each other. This applies whether we are householders, road users, employers, manufacturers or suppliers of goods or otherwise engaged in business, social or sporting activities involving risk of injury to others. Duty of Care has been defined as;You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. … and who are our Neighbours? Someone who is so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called into question. The two previous definitions were given by Lord Atkin in the case of: Donoghue vs Stevenson (1932).
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Nebosh National General Certificate 2) DUTY OF CARE BREACHED (NEGLIGENCE)
NGC1 Element 1
There are many Torts in Civil Law but for industrial purposes the only Tort to be considered here is that of Negligence. Negligence – Definition: Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or do something which a prudent and reasonable man would not do. – Judge Alderson in Blyth vs Birmingham Waterworks Co. (1856) So simplifying the definition:- Negligence is the failure to do something which a reasonable man would do or do something which a reasonable man would not do. 3) INJURY OR DAMAGE Unless injury or damage has occurred there cannot be a claim. The Civil Law case outcome is compensatory, therefore, if no injury or damage has occurred there is nothing to be compensated for. Therefore it can be seen that before any action for damages can be considered The Employee must show all three conditions have been satisfied, i.e.: It must be first shown that in the particular circumstances the Claimant was owed a Duty of Care by the Defendant The Claimant must demonstrate that the Defendant was in breach of that Duty of Care i.e. had been Negligent. . The Claimant must have received Injury or Damage caused by the Defendant’s negligent conduct. EMPLOYERS DEFENCES AGAINST CLAIMS FOR NEGLIGENCE The employers defence can be to dispute the above i.e . 1) No Duty of Care owed to Claimant 2) Not in Breach of Duty i.e. no Negligence has occurred 3) No Injury or Damage has occurred
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Other Defences available to the Employer are: Volenti Non Fit Injuria (No injury can be done to a willing person). This defence is now no longer generally available to the Employer because of the legal obligations in Statutes placed on the Employer to protect his Employees Health and Safety. Contributory Negligence. Up until 1945 if the Employee contributed to their own accident it was a complete defence for the Employer. However, the Law Reform (Contributory Negligence) Act 1945 now prevents this as a complete defence but specifies that the damages shall be reduced as the court thinks fit, having regard to the claimants share in responsibility for the damage. Limitation of Action (Statute barred) Section 11 of The Statute of Limitations Act 1980 states that personal injury claims must be brought within 3 years of the date of the accident or in the case of a disease within 3 years of the disease becoming apparent. JUDICIAL PRECEDENT Common Law is Judge made Law i.e. the Judges created out of the original customs the Common Law principles that are found in Case Law. Once a regular system of law reporting developed and reports were published Judges began to be guided by decisions in previous cases and eventually it became established practice that Judges were bound to follow the decisions of Higher Courts in similar cases. So Judicial Precedent means that Judges follow decisions in previous cases. As Civil Law claims occurred in industrial situations a list evolved from various cases which placed duties on the employer for the protection of employees. These are that the employer should provide:a) b) c) d) e) f) g) Safe plant and equipment Safe systems of work Competent staff Adequate supervision Adequate instruction Safe buildings Safe environment
If the Employee can show that the Employer failed to provide one or more of these duties they will win their claim. ______________________________________________________________ Page 18 01 October 2007
Nebosh National General Certificate VICARIOUS LIABILITY Definition:
NGC1 Element 1
An Employer may be held civilly or criminally liable for the negligent or unlawful acts of an Employee, whilst they are acting in the course of their employment. This means that the Employer is liable for the Torts of their employees provided they are committed in the course of their employment. The Employers’ Liability (Compulsory Insurance) Act 1969 places a duty on Private Sector Employers to take out and maintain approved insurance policies with authorised insurers against liability for bodily injury or disease sustained by their Employees in the course of their employment. Employers are required to display a copy of the Certificate at each place of business for the information of Employees and other interested parties i.e. Enforcing Agencies. An Employer must be insured for at least £2 Million in respect of claims arising out an any one occurrence. Most policies are now written to give maximum cover of £10 Million for any one occurrence. Most insurers have withdrawn the facility of unlimited cover.
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HEALTH AND SAFETY LEGISLATION
The legislation governing health and safety law comes under 5 headings, these are: European Legislation Acts of Parliament Regulations made under the Act Approved Codes of Practice Guidance EUROPEAN LEGISLATION Regulations and Directives on health and safety matters within the European Community are produced and proposed by the European Commission and presented to the European Parliament who may amend or agree on the proposal. It then moves to the Council of Ministers for adoption by Qualified Majority Voting. In the UK health and safety Directives are implemented in the form of Regulations. European Legislation is Criminal Law. ACTS OF PARLIAMENT An Act of Parliament is a written Law passed by Parliament. These are produced in the form of either a public or private bill, which goes through various stages of Parliament (readings, committee, report stages etc.) after which it is passed to the House of Lords which repeat these stages. Once both Houses adopt the bill it receives Royal Assent and becomes an Act, which is entered in the Statute Book until repealed or amended. REGULATIONS Due to lack of Parliamentary time, Parliament often grant a person (Secretary of State or Minister) or a body the power to make Orders, Regulations or Rules which have the force of the Law. Parliament lays down the general principles in an Act which authorizes Delegated Legislation to be made, this is termed an Enabling Act.
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Regulations made under the original Act are generally compulsory and must be obeyed and carry the same penalties as those of its umbrella Act. However, as in the Safety Representatives and Safety Committee’s Regulations 1977, it can merely lay down a list of rights which may be claimed by those for whose protection it has been enacted. APPROVED CODES OF PRACTICE (ACOP) Approved Codes of Practice are approved by the Health and Safety Commission with the consent of the Secretary of State and provide a recognized interpretation of how an Employer may comply with the relevant legislation. Approved Codes of Practice do not themselves lay down legal requirements. An Employer cannot be prosecuted for failing to follow an ACOP however ACOPs can be given in evidence in a prosecution. Anyone who chooses not to follow the guidance in a particular Approved Code of Practice must be able to prove to the Court that they have nevertheless satisfactorily fulfilled those requirements if a prosecution is taken. ACOPS are issued for example on: The Management of Health and Safety at Work Regulations 1999 The Workplace (Health, Safety and Welfare Regulations) 1992 The Control of Substances Hazardous to Health Regulations 2002 GUIDANCE Guidance is issued by the Health and Safety Executive with the intention of giving advice and good practice. This advice generally more practically based than that of an ACOP. This Guidance has no legal standing nor do they have the evidential significance of the ACOP. However, it is well worth employers follow the recommendations whenever possible as in general if you meet the requirements you will be considered to have done enough to comply with the Law. They are based on practical experience and indicate the way in which the Enforcing Authority expect the employer to meet their health and safety requirements. Guidance is issued for example on: Manual Handling Operations Regulations 1992 Health and Safety (Display Screen Equipment) Regulations 1992 Personal Protective Equipment Regulations 1992
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The above can be summarized in the following diagram:-
Health and Safety Legislation
E u ro p e a n D ire c tiv e s
E n a b lin g A c t
R e g u la tio n s A .C .O .P .s G u id a n c e Guidance N o te s
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EMPLOYMENT TRIBUNALS
An Employment Tribunal is made up of a legally qualified Chairman and two lay members, drawn from a panel of people with experience in industry, business, industrial relations and so on. Wherever possible the lay members sitting on any case will be representatives of both Employers and Employees. These lay members are known as “wingmen”. Appeal lies to a Regional Employment Appeals Tribunal and to the Court of Appeal except for appeals against enforcement notices which go to the Divisional Court of the Q B Division of the High Court. With regard to Health and Safety, the following matters can be dealt with by Employment Tribunals: Appeal against improvement and prohibition notices – appeal within 21 days. Employment Matters, including: a. Time off for Safety Representative training – appeal within 3 months Failure to pay safety representatives for time spent carrying out their functions – appeal within 3 months Failure of an employer to make payment for a medical suspension – appeal within 3 months Dismissal, or constructive dismissal, following a breach of health and safety legislation – appeal within 3 months Race or sex discrimination on Health and Safety Matters – appeal within 3 months
b.
c.
d.
e.
The person bringing the case is called the Appellant and the person defending the case is called the Respondent. In the case of appeals against Enforcement notices, the Appellant has 21 days to lodge the appeal. In all other areas the appellant has 3 months to lodge an appeal.
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Parties before Tribunals can be represented either by lawyers or laymen, perhaps Safety Practitioners and Trade Union Officials. An application is made to the Tribunal which sets out the claim and indicates the terms of employment. The Employer is notified and indicates whether he admits the claim or intends to resist. If he resists he must outline his grounds. A date is then fixed for the hearing and both sides are told that they may appear in person or be represented by a solicitor, barrister, Trade Union Representative, Employer Association Representative or, with the Tribunal’s consent, by any other person. Before the hearing, a written opening statement needs to be prepared on behalf of the Appellant. This is read at a pre-hearing, along with a summary of the case, making reference to relevant legislation and cases of precedents. An Appellant should have to hand original documents which he proposes to bring in evidence and six copies – three for members of the Tribunal, one for himself, one for the witness and one for the Respondent. Each party must be informed at least fourteen days before the date fixed for the hearing. At the hearing itself the following sequence of events is observed: The Appellant (Party A) is called upon to open: a) A presents his case outline b) A calls his evidence c) B calls his evidence d) B makes a closing speech e) A makes a closing speech In his opening speech, the Appellant mentions his role in the Company, the facts on which he bases his case and the relevant Statutes and any case-law decisions. Witnesses are examined on oath. Tribunals can require parties to provide particulars of grounds on which they rely and any relevant facts, and grant applicants discovery or inspection of documents such as might be granted by a County Court. The relevant decision here being Waugh vs British Railways Board 1980. Normally a decision can be given on the day of the hearing, but where a difficult case is involved it can be postponed. Written reasons for the decision are always sent after the hearing. The decision may be unanimous or reached by a majority vote.
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Nebosh National General Certificate The remedies available to Tribunals are: a) b) c) Re-instatement: placed back in to the same job. Re-engagement: new job with same employer. Compensation.
NGC1 Element 1
Applications for a hearing are lodged with the Central Office of Employment Tribunals in London and the case is processed through the relevant regional office. About 40,000 applications are received a year but only a small percentage concern health and safety matters. Appeals can be made against improvement or prohibition notices on grounds of time limits for compliance or the involvement of substantive law. A Company is more likely to succeed in extending the time limit within which improvements have to be made, unless it has a bad safety record. A Tribunal can review, revoke or vary a decision on the following grounds: a) The decision was wrong due to an error made by the Tribunal Staff b) A party did not receive notice of the proceedings c) The decision was reached in the absence of a party entitled to be heard d) New evidence comes to light e) The interests of justice require a review Pre-hearings were introduced to eliminate hopeless or frivolous cases and an informal hearing takes place, without witnesses, at which the parties outline their positions. If the Tribunal form the decision that the claim is without merit, it warns the party concerned that if he proceeds at a subsequent hearing and loses, a second Tribunal may award costs against him. In the hearings themselves, the burden of proof is not such a high one as required by the Courts and it is sufficient to establish the balance of probabilities in a person’s favour. Appeals can be made on points of law but not on the facts. However, in practice, it is difficult to determine between the two and the right is almost universal. However, the three Courts of Appeal have made it a rule not to alter decisions unless a clear error of law is involved. The three Law Courts involved in appeal are;- the Divisional Courts, the Court of Appeal and the House of Lords.
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Tribunal decisions are not regarded as precedents but are valued for their reasoning and guidance. Proceedings tend to be less formal than in court and costs are not usually awarded. Appeals against Tribunal decisions on Enforcement Notices will go to The Queen’s Bench Divisional Court of the High Court. Appeals against Tribunal decisions on all other matters will go to the Employment Appeals Tribunal (EAT), which is a Specialized Court consisting of a High Court Judge and two wingmen chosen from each side of the industry. Procedure is less formal than in Court and legal representation is not insisted upon. Costs are not usually awarded and the emphasis is upon simplicity and speed. A further appeal may be made to the Court of Appeal.
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HEALTH AND SAFETY AT WORK ETC ACT 1974 – SECTIONS 1-9, 36, 37 and 40
SECTION 1-AIMS OF THE ACT To provide a comprehensive and integrated system of law dealing with: (a) The health, safety and welfare of persons at work (b) The health and safety of the public as affected by work activities. (No risk to visitors, criminal responsibility) (c) Controlling the keeping and use and preventing the unlawful acquisition, possession and use of dangerous substances and explosives. HASWA is an Enabling Act which provides for Regulations to be made by the Secretary of State or Authorised Body to meet the aims of the Act. It also provides for Approved Codes of Practice to be produced to give practical guidance on compliance with statutory provision. SECTION 2-EMPLOYERS’ DUTIES TOWARDS EMPLOYEES (1) 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. (2)(a) Provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b) Arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the Health, Safety and Welfare of employees; (d) So far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risk; (e) Provision and maintenance of a working environment for employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work. -------------------------------------------------------------------------------------------------------01 October 2007 Page 27
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2(3) Prepare and revise as appropriate a written policy statement to be brought to the notice of Employees if there are more than 5 Employees.
2(4) Consultation with Safety Representatives of the Employees (via a Safety Committee)
NB: Neither (3) or (4) are qualified by the statement (so far as is reasonably practicable)! SECTION 3-DUTIES OF EMPLOYERS TO PERSONS OTHER THAN THEIR EMPLOYEES 1. Every employer must conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment are not exposed to risks to health or safety. 2. Every self-employed person must conduct his undertaking in such a way to ensure that persons not in his employment are not exposed to health and safety risks. SECTION 4-DUTIES OF PERSONS WHO CONTROL PREMISES 1. Health and safety duties are placed on persons in control of premises for the benefit of persons working in such premises, but who are not their employees, or who use plant and substances made available to them for their use there. 2. It is the duty of the person, persons or body in control to take steps to ensure, so far as is reasonably practicable that: (a) The premises (b) The means of access and egress and (c) The plant and substances provided for use there are safe and without risks. 3. Where a contract or lease expressly or by implication places responsibility for: (a) Maintenance and/or repair of premises, or (b) Health and safety obligations in connection with plant and substances in premises, upon a particular person or body, that person or body is deemed to be in control. SECTION 5 has been replaced by The Environmental Protection Act.
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SECTION 6-DUTIES OF DESIGNERS, MANUFACTURERS, SUPPLIERS AND IMPORTERS This section places duties on designers, manufacturers, suppliers and importers of ARTICLES and SUBSTANCES. So far as is reasonably practicable:a) Articles must be Designed and Constructed to be safe to use and without risks to health when being; Set, Used, Cleaned or Maintained by a Person at Work. Any necessary Testing, Examination and Research to support this duty must be carried out. b) Substances must be safe and without risks to health when being Used, Handled, Processed, Stored or Transported. They must carry out or arrange for such Testing and Examination as necessary to ensure safe use. c) Adequate Information must be provided about the article or substance about the use for which the product is intended. d) Persons supplied with information shall be Supplied with Revisions if it becomes necessary. e) Installers and Erectors of equipment and machinery for use at work must ensure as far as is reasonably practicable, that no health and safety hazards arise from the method of installation or erection DUTIES OF EMPLOYEES SECTIONS 7 AND 8 It should be noted that members of management may be “employees” within the meaning of the Act and will therefore, have duties under it. SECTION 7 “It shall be the duty of every employee whilst at work: a) To take reasonable care for the health and safety of himself and other persons who may be affected by his acts or omissions at work, As regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
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NGC1 Element 1 SECTION 8
Nebosh National General Certificate
“No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions”. NB: Under the Interpretation Act 1978, ‘Person’ means an individual or body corporate or unincorporate. SECTION 9-DUTY NOT TO CHARGE EMPLOYEES FOR THINGS DONE OR PROVIDED PURSUANT TO CERTAIN SPECIFIC REQUIREMENTS No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions. AS FAR AS IS REASONABLY PRACTICABLE Although this is not defined in the Act it has acquired meanings through interpretations by the Courts. To carry out a duty “so far as is reasonably practicable” means that the degree of risk in a particular activity or environment can be balanced against the time, trouble cost and physical difficulty of taking measures to avoid the risk. If these are so disproportionate to the risk that it would be quite unreasonable for the persons concerned to have to incur them to prevent it, they are not obliged to do so. The greater the risk, the more likely that it is reasonable to go to the very substantial expense, trouble and invention to reduce it. But, if the consequences and the extent of a risk are small, insistence on great expense would not be considered reasonable. It is important to remember that the size and financial position of the employer are not taken into account. It should, however, be borne in mind that the final arbiter of what is “reasonably practicable” will be the Courts. If someone is prosecuted for failing to comply with a duty “so far as is reasonably practicable”, they have to prove that it was not “reasonably practicable” to meet the requirement. This offers defendants a potential defence if they can show, on the balance of probability, that in the circumstances they had done everything to prevent a breach of the law. Examples of this could be:a) It is reasonably practicable to fit a guard to a machine as the risk is high and the cost is low. b) If the noise levels are below the legal requirements the employer could provide hearing protection rather than try and reduce the noise at source. ______________________________________________________________ Page 30 01 October 2007
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SECTION 36 – OFFENCES DUE TO FAULT OF OTHER PERSON Where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence, by virtue of this sub-section whether or not proceedings are taken against the first mentioned person. SECTION 37 – OFFENCES BY BODIES CORPORATE Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any Director, Manager, Secretary or other similar officer of the body corporate, he as well as the body corporate shall be guilty of that offence. SECTION 40 – 0NUS OF PROVING LIMITS OF WHAT IS PRACTICABLE In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the requirement. The Crown does not have to prove that it was reasonably practicable to do more, the accused has to satisfy the Court that in probability it was not reasonably practicable to do more. In effect it is for the accused to prove that he did all that was reasonably practicable. It can be said that under Health and safety Law you are “ Guilty until you prove your innocence”.
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POWERS OF ENFORCEMENT OFFICERS
Section 10 of The Health and Safety at Work etc. Act 1974 established two bodies to promote and enforce Health and Safety in the Workplace. These are the Health and Safety Commission whose duties include promoting the objectives of the Act, providing an information and advisory service and putting forward to Ministers proposals for Regulations and ACOPs under the Act and arranging for the enforcement of the Act which is done by the second body The Health and Safety Executive. The Commission consists of a part time Chairman and between six and nine part-time members who are appointed by the Government. The Commission currently comprises of three members from Employer organisations, three from Trade union Organisations, two from Local Authorities and one representing the public interest. The Executive consist of three full time members who are appointed by the Commission and its full time staff. The “Health and Safety Executive” has the duty to enforce the legislation in all circumstances where no other authority has been given authority. The HSE has delegated the responsibility for enforcement of the Act to Local Authority Environmental Officers for certain premises. The major part of the Executive’s staff are in the Inspectorates (Factories, Agricultural, Quarries, Mines, Nuclear Installations, and Offshore Installations, most of whom are based in the field. These are supported by technical specialists and by a research Division. Generally the HSE enforces health and safety Law in workplaces such as construction sites, chemical plants, factories, fairgrounds, farms, mines, nuclear and offshore installations, quarries and also where the home is the place of work. Local Authorities enforce health and safety Law in retail outlets, some warehouses, offices, hotels and catering, sports, leisure, consumer services and places of worship (except where the Local Authority is the provider in which case HSE is the Enforcing Authority). Where in individual premises more than one activity is carried on, it is the main activity which determines the appropriate enforcing authority. An exception to this general rule is that the HSE enforces in respect of all premises occupied or controlled by local authorities themselves and Police or Fire Authorities. Enforcement of Environmental Legislation is undertaken by in England and Wales the Environment Agency and in Scotland by the Scottish Environmental Protection Agency who have similar powers to H & S.E. Inspectors.
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The powers of the Enforcement Officer are granted under sections 20,21,22,23,25 of The Health and Safety at Work etc Act 1974. The powers of an Enforcement Officer are the following, namely:a) At any reasonable time (or, in a situation which in his opinion is or may be dangerous at any time) to enter any premises which he has reason to believe it is necessary for him to enter; b) To take with him a Constable if he has reasonable cause to suspect any serious obstruction in the execution of his duty; c) To take with him Any other person and Any equipment or materials required for any purpose for which the power of entry is being exercised; d) To make such examination and investigation as may in any circumstances be necessary; e) As regards any premises which he has power to enter, to direct that those premises or any part of them, or anything therein, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation f) To take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation g) To take samples of any articles or substances found in any premises which he has power to enter, and of the atmosphere in or in the vicinity of any such premises; h) In the case of any articles or substances found in any premises which he has power to enter, being an article or substance which appears to him to have cause to be or to be likely to cause danger to health or safety, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is in the circumstances necessary); i) In the case of any article or substance to take possession of it and detain it for as long as necessary for the following purposes of examining it and to ensure that it is not tampered with before his examination is completed, and to ensure that it is available for use as evidence in any proceedings.
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j) To require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation to answer (in the absence of persons other than a person nominated by him to be present and any persons whom the Inspector may allow to be present) such questions as the Inspector thinks fit to ask and to sign a declaration of the truth of his answers. No answer given by any person in pursuance of a requirement imposed by the above shall be admissible in evidence against that person or the Husband or Wife of that person in any proceedings. k) Production of Any books or documents which by virtue of any of the relevant statutory provisions are required to be kept and to require any person to afford him such facilities and assistance with respect to any matter or things within that person’s control to enable the inspector to exercise any of the powers conferred on him i) Any other power which is necessary for the purpose. SECTION 21 This section states that if an Inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions he may serve on him an Improvement Notice. SECTION 22 This section states that if an Inspector is of the opinion that there is an Imminent Risk of Serious Personal Injury he may serve a Prohibition Notice. SECTION 39 This section authorises an Inspector to Prosecute in a Magistrates Court for offences under the Act in England and Wales. In Scotland the prosecution is taken by the Procurator Fiscal. So in summation an Inspector may:1. Give advice verbally or in writing 2. Issue Enforcement notices (Improvement or Prohibition) 3. Prosecute
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ENFORCEMENT NOTICES (IMPROVEMENT AND PROHIBITION)
The HASAWA Sections 21 and 22 provides for the use of two types of notices to require people to take action to improve standards or to prevent accidents. Such notices are backed by law and people can be prosecuted for failure to comply. IMPROVEMENT NOTICES Inspectors can issue an Improvement Notice when they consider that health and safety legislation is being contravened. A notice can be issued whether the legal requirements being broken are part of the Act or part of any relevant statutory provision. Inspectors must specify the legal requirements which they think are being broken and give reasons. The period allowed to put matters right must also be stated, and must not be less than 21 days, as this is the time limit for taking an appeal to an Employment Tribunal. Beyond that, the period allowed is left to the inspector’s discretion and will depend on such factors as the seriousness of the matters involved, and the ease with which the person concerned can take the action necessary to comply with the notice. Inspectors may state in the notice what action they think may be necessary to put matters right, and may in doing so refer to, for example, an Approved Code of Practice or other published guidance such as British Standards. An appeal against an Improvement Notice must be made to an Employment Tribunal within 21 days. An appeal automatically suspends the operation of an improvement notice, until the Tribunal sits. DEFERRED AND IMMEDIATE PROHIBITION NOTICES A Prohibition Notice may be issued when an Inspector considers that there is a risk of serious personal injury. The notice prohibits the carrying on of the work activity giving rise to risk of injury. If an Inspector considers that the risk of injury is imminent, the notice must take immediate effect and stop the work activity at once. If not, the prohibition notice must be deferred, stating that the work activity must be stopped, within a certain specified time. Apart from this difference of timing, immediate and deferred prohibition notices are identical. Both kinds of notice can be issued for working activities which are about to begin, as well as those already started. The Prohibition Notice can be issued for any activities to which the relevant statutory provisions apply. There does not have to be an actual breach of legal requirements although if it is thought that the law is being broken it must say so in the notice.
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Nebosh National General Certificate
The notice must also state the matters which in the Inspector’s view give rise to the risk of serious personal injury, and may, but does not have to, include directions on what steps should be taken to put matters right. An appeal against a Prohibition Notice must be made to an Employment Tribunal within 21 days. A Prohibition Notice is not suspended on appeal unless the Tribunal agrees. APPEALS AGAINST IMPROVEMENT AND PROHIBITION NOTICES A person on whom a notice is served may appeal to an Employment Tribunal. The appeal may challenge the Inspector’s views about whether the law has been broken or about risk of serious personal injury, the time limit in the notice, or the measures (if any) specified for remedying the matters. An appeal against an Improvement or Prohibition notice must be made to the Tribunal within 21 days of the notice being issued, although the Tribunal may extend the time limit where it is satisfied that it was not reasonably practicable to appeal within the period. An appeal is made by writing (either in a letter or using the official form IT 19) to the appropriate Secretary of the Tribunals at one of the following addresses:The Secretary Central Office of the Employment Tribunals (England and Wales) 93 Bridge Road London SE1W 8RE The Secretary Central Office of the Employment Tribunals (Scotland) Saint Andrew House 141 Nile Street Glasgow G1 2RU The following information must be included in the appeal: a) Name and address of the person making the appeal. b) Date of the improvement or prohibition notice appealed against and address of the premises concerned. c) Name and address of the inspector issuing the notice. d) Which aspect of the notice is being challenged. e) Grounds for appeal.
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NGC1 Element 1
An appeal automatically suspends the operation of an improvement notice until the outcome of the Tribunal hearing. However, suspension does not mean the time specified in the notice is extended. Thus if the Tribunal affirms the notice and does not itself extend the time limit the person concerned must still take the required action within the period originally specified. A Prohibition Notice is not automatically suspended on appeal. However, the Appellant can apply to the Tribunal for suspension, and if the Tribunal agrees, the notice is suspended from the time that the Tribunal so directs. After hearing the case the Tribunal can cancel the notice, or affirm it with such amendments as it sees fit. IN SUMMARY When served with an Enforcement notice the Employer can Comply with the notice (which happens in most cases) or can Appeal.
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NGC1 Element 1
Nebosh National General Certificate
OFFENCES AND PENALTIES FOR BREACHES OF HEALTH AND SAFETY LEGISLATION
OFFENCES There are two types of offences specified under the HASAWA act. These are:a) Summary offences that can only be heard in a Magistrates Court in England and Wales and a Sheriff court in Scotland. b) Offences Triable either way which may be prosecuted in either a Magistrates Court or a Crown Court in England/Wales and the Sheriff Court or High Court in Scotland. On Triable offences the Magistrates hear representations from both parties and decide whether to hear the case themselves or commit it to trial at the Crown Court. However if the Magistrates decide to hear the case themselves the Defendant has the right to have the case heard by a Jury at the Crown Court. If the Defendant wishes to do this then the Magistrates must go through the Committal procedure. This procedure is not available in Scotland. SUMMARY OFFENCE – MAGISTRATES COURT ONLY/SHERIFF COURT ONLY Summary offences are:a) To contravene requirements imposed under the Health and Safety inquiries (Procedures) Regulations 1975 or intentionally to obstruct any person in the exercise of their powers under Section 14 of HASAWA. b) To contravene any requirement imposed by a Health and Safety inspector under Section 20 (The Powers of an Inspector) or Section 25 (The Power to Deal with Imminent Danger). c) To prevent or attempt to prevent any other person from appearing before an Inspector or from answering any question to which, by virtue of the powers under Section 20 (the Powers of an Inspector) of HASAWA the Inspector may require an answer. d) Intentionally to obstruct Inspectors in the exercise of the performance of their powers or duties. e) To impersonate a Health and Safety Inspector.
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Nebosh National General Certificate
NGC1 Element 1
TRIABLE OFFENCES – MAGISTRATE OR CROWN COURT/SHERIFF COURT OR HIGH COURT IN SCOTLAND Triable offences are:a) Failure to discharge duties given under Sections 2-9 of the HASAWA. b) Failing to comply with Regulations made under Section 15 of HASAWA. c) To contravene any requirement or prohibition imposed by an improvement or prohibition notice. d) To contravene any requirement imposed by a notice served by the Health and Safety commission under Section 27 (1) (Obtaining Information) of the HASAWA. e) To use or disclose any information in contravention of Sections 27 (4) and 28 of HASAWA (Unlawful Use of Disclosure of Privileged Information) f) To knowingly make a false statement for the purpose of obtaining the issue of documents under any of the ‘relevant statutory provisions’ or in purported compliance with a requirement to furnish any information imposed by or under any of the ‘relevant statutory provisions’. g) Intentionally to make a false entry in any register, book, notice or other document required by or under any of the ‘relevant statutory provisions’, or to make or have in his/her possession a document so closely resembling any such document as to be calculated to deceive. h) To fail to comply with an order made by a Court to remedy an offence of which he/she has been convicted under any of the ‘relevant statutory provisions’. PENALTIES - MAGISTRATES COURT/SHERIFF COURT For breaches of Section 2-6 of the Health and Safety at Work Act 1974 (HASAWA), and breaches of Improvement notices, Prohibition notices and Court Remedy orders the maximum fine per offence is £20,000. Breaches of Improvement Notices, Prohibition and Court Remedy orders may also be given a prison sentence of up to 6 months. For offences committed under the remaining sections of HASAWA, Regulations such as Noise at Work, COSHH and other relevant statutory provisions the maximum fines per offence are £5,000.
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NGC1 Element 1
Nebosh National General Certificate
PENALTIES - CROWN COURT/SHERIFF COURT In the Crown Court/Sheriff Court an Unlimited Fine may be imposed and up to 2 years in jail for certain offences. The offences are:a) Carrying on an undertaking without a Licence issued by the Health and Safety Executive, when such a licence is a legal requirement; or contravening the terms or conditions of a licence issued by the Executive. b) Acquiring, possessing or using explosives in breach of any requirements of health and safety legislation. c) Failing to comply with a Prohibition and Improvement Notice. d) Wrongful disclosure of Information obtained under the Act.
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Nebosh National General Certificate
NGC1 Element 1
THE MANAGEMENT OF HEALTH AND SAFETY REGULATIONS 1999
MAIN REQUIREMENTS OF THE REGULATIONS These Regulations place the primary responsibility for ensuring health and safety on Employers. In carrying out their responsibility Employers are to carry out risk assessments and follow the principles of prevention. They must provide effective health and safety management arrangements and carry out health surveillance if necessary. Competent personnel are to be appointed to advise the Employer on Health and Safety and procedures for dealing with serious and imminent danger established and also contacts with external emergency services if necessary. Employees are to be provided with information and training and Employees are also given responsibilities under the Regulations. There are also duties to arrange co-operation and co-ordination between different Employers and to protect temporary workers and employees of other organisations working on his premises. Finally there are duties for the protection of new and expectant mothers and Young Persons. REGULATION 3 – RISK ASSESSMENT Employers and self-employed have to make a suitable and sufficient assessment of the risks to anyone who might be affected by their working activities. Assessments have to be revised if they cease to be valid. Employers with five or more employees have to record the significant findings of their assessment and record any group of employees identified to be a high risk. The Regulation requires Employers to review their risk assessment where they apply to young persons. The Employer must take account of:1. 2. 3. 4. 5. 6. The inexperience of the young person The layout of the work station Any exposure to physical, biological and chemical agents The use of work equipment and the way it is handled. The organisation of processes and activities The extent of Health and Safety training provide to young person
The Employer must also take into account the requirements of the Fire Precautions (Workplace) Regulations 1997. Also Regulation 16 requires that the risk assessment should include any particular risks to new or expectant mothers.
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NGC1 Element 1
Nebosh National General Certificate
REGULATION 4 - PRINCIPLES OF PREVENTION TO BE APPLIED Regulation 4 requires an Employer to implement preventive and protective measures on the basis of general principles of prevention specified in Schedule 1 to the Regulations. These are: 1. 2. 3. 4. Avoiding risks Evaluating the risks which cannot be avoided Combating the risks at source Adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment, working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health Adapting to technical progress Replacing the dangerous by the non-dangerous or the less dangerous 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 Giving collective protective measures priority over individual protective measures; and Giving appropriate instructions to employees
5. 6. 7.
8. 9.
REGULATION 5 – HEALTH AND SAFETY ARRANGEMENTS Appropriate arrangements must be made for the effective planning, organisation, control, monitoring and review of preventative and protective measures (in other words, for the management of health and safety). Again, employers with five or more employees must have their arrangements in writing. REGULATION 6 – HEALTH SURVEILLANCE In addition to the requirements of specific regulations such as Control of Substances Hazardous to Health (COSHH) and Asbestos regulations, consideration must be given to carry out health surveillance of employees where there is a disease or adverse health condition identified in risk assessments and valid detection techniques exist. REGULATION 7 – HEALTH AND SAFETY ASSISTANCE The employer must appoint one or more competent persons to assist him in complying with the legal obligations imposed on the undertaking (including Part II of the Fire Precautions [Workplace] Regulations 1997). The number of persons appointed depends on the size of the establishment and the range and severity of the risks.
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NGC1 Element 1
If more than one competent person is appointed, then arrangements must be made for ensuring adequate co-operation between them. The Competent person(s) must be given the necessary time and resources to fulfil their functions. This will depend on the size of the undertaking, the risks to which employees are exposed and the distribution of those risks throughout the undertaking. The employer must ensure that competent person(s) who are not employees are informed of the factors known (or suspected) to affect the health and safety of anyone affected by business activities. Competent people are defined as those who have sufficient training and experience or knowledge and other qualities to enable them to perform their functions. Persons may be selected from among existing employees or from outside. Where there is a suitable person in the employer’s employment, that person shall be appointed as the ‘competent person’ in preference to a non-employee. REGULATION 8 – PROCEDURES FOR SERIOUS AND IMMINENT DANGER AND FOR DANGER AREAS Employers are required to set up emergency procedures and appoint competent persons to ensure compliance with identified arrangements, to devise control strategies as appropriate and to limit access to areas of risk to ensure that only those persons with adequate health and safety knowledge and instruction are admitted. REGULATION 9 – CONTACTS WITH EXTERNAL SERVICES Employers must ensure that, where necessary, contacts are made with external services. This particularly applies with regard to first-aid, emergency medical care and rescue work. REGULATION 10 – INFORMATION FOR EMPLOYEES Employers must provide Employee (or before employing a child, provide a parent with) information on risks identified by the assessments. Clear instruction must be provided concerning any preventative or protective control measures including those relating to serious and imminent danger and fire assessments. Details of any regulations must also be communicated Also risks arising from contact with other employer’s activities.
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NGC1 Element 1
Nebosh National General Certificate
REGULATION 11 – CO-OPERATION AND CO-ORDINATION Employers who work together in a common workplace have a duty to cooperate to discharge their duties under relevant statutory provisions. They must also take all reasonable steps to inform their respective employees of risks to their health or safety which may arise out of their work. Specific arrangements must be made toe ensure compliance with fire legislation (i.e. the Fire Precautions [Workplace] Regulations 1997) REGULATION 12 – PERSONS WORKING IN HOST EMPLOYERS OR SELF-EMPLOYED PERSONS UNDERTAKINGS Extends the requirements of regulation 11 to include employees working as sole occupiers of a workplace under the control of another employers. Such employees would include those working under a service of contract and employees in temporary employment businesses under the control of the first employer. REGULATION 13 – CAPABILITIES AND TRAINING Employers need to take into account the capabilities of their employees before entrusting tasks. This is necessary to ensure that they have adequate health and safety training and are capable enough at their jobs to avoid risk. To this end consideration must be given to recruitment including job orientation when transferring between jobs and work departments. Training must also be provided when other factors, such as the introduction of new technology and new systems of work or work equipment arise. Training must be repeated periodically where appropriate and adapted to take account of any new or changed risks to the health and safety of the Employees concerned and to take place during working hours. REGULATION 14 – EMPLOYEES DUTIES Employees are required to follow health and safety instructions by using machinery, substances, transport etc. in accordance with the instructions and training that they have received. They must also inform their Employer (and other Employers) of any dangers or shortcoming in the health and safety arrangements, even if there is no risk of imminent danger. REGULATION 15 – TEMPORARY WORKERS Temporary workers are to be provided with safety information such as qualifications required to perform the task safely or any special arrangements such as the need to provide health surveillance. ______________________________________________________________ Page 44 01 October 2007
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REGULATION 16 – RISK ASSESSMENT IN RESPECT OF NEW OR EXPECTANT MOTHERS Where the work is of a kind which would involve risk to a new or expectant mother or her baby, then the assessment required by Regulation 3 should take this into account. If the risk cannot be avoided, then the Employer should take reasonable steps to adjust the hours worked, offer alternative work, or give paid leave for as long as necessary REGULATION 17 – CERTIFICATE FROM A REGISTERED MEDICAL PRACTITIONER IN RESPECT OF NEW OR EXPECTANT MOTHERS Where the woman is a night shift worker and has a medical certificate identifying night shift work as a risk then the Employer must put her on day shift or give paid leave for as long as is necessary. REGULATION 18 – NOTIFICATION BY NEW OR EXPECTANT MOTHERS The employer need take no action until he is notified in writing by the woman that she is pregnant, has given birth in the last six months, or is breastfeeding. REGULATION 19 – PROTECTION OF YOUNG WORKERS Employers of young persons shall ensure that they are not exposed to risk as a consequence of their lack of experience, lack of awareness or lack of maturity. No employer shall employ young people for work which: Is beyond his physical or psychological capacity Involves exposure to agents which chronically affect human health Involves harmful exposure to radiation Involves a risk to health from extremes of temperature, noise or vibration Involves risks which could not be reasonably foreseen by young persons.
This Regulation does not prevent the employment of a young person who is no longer a child for work: Where it is necessary for his training Where the young person will be supervised by a competent person; and Where any risk will be reduced to the lowest level that is reasonably practicable.
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NGC1 Element 1
Nebosh National General Certificate
SOURCES OF INFORMATION
It is essential to keep abreast of new Health and Safety Legislation and other developments in the Health and Safety field. Copies of Acts and Regulations are sold by HMSO. These, however, generally give only a broad outline but it is useful to know the aim of the Act or Regulation. Sources of information on Health and Safety could include:1. HEALTH AND SAFETY EXECUTIVE PUBLICATIONS The main source of information is in the publications of the Health and Safety Executive. The HSE publishes a Price List every six months which lists all their current publications. This book is available free from your local HSE Office or from the HSE enquiry point:HSE Books PO Box 1999 SUDBURY Suffolk CO10 6FS Tel: 01787 881165 Fax: 01787 313995
The Price List and Publications are also available from Dillons Bookstores nationwide and can be ordered at any branch of Ryman the Stationer or Ryman Computer Store. The H&SE Publications Include:a) Approved Codes of Practice (ACOP) The purpose of these are to provide practical guidance to meet the requirements of Regulations or other statutory provisions. ACOP's may be used in evidence in proceedings and acts as the standard against which the Defendants actions will be measured. Some ACOP,s are published under the COP series but most are published under the L (Legal) series. b) Guidance
There are 2 Types of Guidance. Firstly is Guidance specific to Regulations and these are published under the L (Legal) series. The second type gives practical guidance on the application of Legislation and is published under the HSG series and are called guidance notes.
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Nebosh National General Certificate c) Guidance Notes
NGC1 Element 1
These give guidance on the best methods of dealing with safety problems. They have no legal standing but should be followed whenever possible because it is guidance from the HSE and indicates the way they would expect the Company to meet their health and safety problems. There are 5 series of guidance notes:1. 2. 3. 4. 5. Chemical Safety Environmental Hygiene General Medical Plant and Machinery CS Series EH Series GS Series MS Series PM Series
The HSE also publishes other safety information in various publications not listed in the above and also provides free leaflets on a whole range of subjects. Also available from the HSE on a subscription basis is the HSC Newsletter published 6 times per annum and the HSE News Bulletin published weekly available from:Health and Safety Executive Public Enquiry Point Information Centre Broad Lane SHEFFIELD S3 7HQ Tel: 01142 892345
The HSE also have a computer based information and advisory service with enquiry points at HSE area offices. Information and advice on occupational health problems can be obtained from the Employment Medical Advisory Service (EMAS). The EMAS telephone numbers are available at local HSE area offices. 2 LOCAL AUTHORITY ENVIRONMENTAL HEALTH DEPARTMENTS Local authorities have responsibility for enforcing health and safety legislation in a wide variety of non-industrial premises, e.g. various consumer services, launderettes etc and can be a source of information.
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Nebosh National General Certificate
3 ORGANISATIONS INVOLVED IN SAFETY There are a number of organisations which are involved almost exclusively in Health and Safety and publish monthly journals which are valuable sources of information. Three of these are:a) Institution of Occupational Safety and Health (IOSH) Based in Leicester, the Institution publishes a monthly journal "The Safety & Health Practitioner". Royal Society for the Prevention of Accidents (RoSPA) Based in Birmingham. British Safety Council (BSC) (Based in London)
b)
c)
4. PUBLICATIONS There are a considerable number of books both general and specific on health and safety published and available from bookshops. Two examples are Redgraves, which contains all current legislation at the time it is published and also refers to relevant case law and Ridleys which is a general health and safety handbook. A useful publication is "Croners Health and Safety at Work" published by Croner Publications of Kingston-upon-Thames. This is in a loose leaf form and covers a wide range of Health and Safety topics and is updated at 3 monthly intervals. 5. BRITISH STANDARDS
A number of these relate to safety such as BS 5304 Safeguarding of Machinery and BS 2092 Eye Protection. Whilst not having legal standing they will be used as yardsticks of good safety practice. 6. PROFESSIONAL INSTITUTES/TRADE ORGANISATIONS
These often produce codes of practice, e.g. the Institute of Electrical Engineers Regulations on Electrical Installations. 7. CONSULTANTS AND SPECIALISTS
Advice can be obtained from organisations such as Universities, Polytechnics who offer Consultancy services as well as Specialists in various areas.
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Nebosh National General Certificate 8. TRAINING BOARDS
NGC1 Element 1
Training Boards specify training standards but some of their publications provide substantial information on safety matters. 9. MANUFACTURERS
Manufacturers, suppliers and importers have a duty under HASAWA section 6 to provide information which will enable the users of their products to be able to use them with safety. Manufacturers of Personnel Protective Equipment (PPE) will meet the various British Standards relating to their products and provide the information on their levels of protection. 10. TRADE UNIONS AND THE TUC
Unions and the TUC produce guides for Safety Representatives and many Unions also have full time Officers who deal with Health and Safety matters. 11. POSTERS AND SIGNS
The Employer must display certain Statutory notices which provide information to Employees. Other posters can be used to remind staff of general workplace hazards or to supply specific safety campaigns. Signs remind employees of safety requirements and also draw to the attention of visitors who are not familiar with the workplace potential hazards. 12. COMPANY SOURCES Sources of information within the Company can include:1) 2) 3) 4) 5) 6) 7) 8) Risk assessments Inspection reports Accident/incident records Medical records Safety representatives Safety committee reports Company safety policy Maintenance reports
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NGC1 Element 1
Nebosh National General Certificate
NGC1 ELEMENT 1 QUESTIONS
1 Outline the possible benefits to an Organisation of achieving good standards of health and safety.. Outline the methods that may be used to assess an Organisations health and safety performance. Replacement and retraining of staff is a cost that an Organisation may face following a workplace accident. List EIGHT other possible costs to an Organisation when an Employee has been hurt in such an accident. 4 Replacement or repair of damaged plant and equipment is a cost that an Organisation may face following a workplace accident. List EIGHT other possible costs to an Organisation when an Employee has been seriously injured in such an accident. 5 Outline the main components of a health and safety management system. a) b) Define the term “Negligence” Outline the possible defences available to Employers in cases of alleged negligence. Explain the differences between Civil Law and Criminal Law. Explain the differences between HSC Approved Codes of Practice and HSE Guidance Notes giving an example of EACH. Explain the meaning of the following terms: (1) Common Law (2) Statute Law 10 a) List FOUR categories of persons other than his own Employees to whom an Employer owes a duty to take reasonable care. Outline the procedures that an Organisation might adopt in order to ensure the safety of visitors to its premises. (4) (4) (8)
2
(8)
3
(8)
(8)
(8) (2)
6
(6) (8) (8)
7 8
9
(2)
(6)
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Nebosh National General Certificate 11
NGC1 Element 1
What subject areas are dealt with by Employment Tribunals in health and safety legislation. Explain the meaning of the following terms: (a) Delegated Legislation (b) Judicial Precedent
(8)
12
(4) (4)
13
Explain using TWO practical examples the meaning of the term “So far as is reasonably practicable”
(8)
14 a)
Outline the general duties placed on Employees by Sections 7 (6) and 8 of the Health and Safety at Work etc. Act 1974. Outline a specific duty placed on Employees by Regulation 14 of the Management of Health and Safety at Work Regulations 1999. Describe with an example in EACH case SIX ways in which an Employer may fail to fulfill his duties to his Employees under Section 2 of the Health and Safety at Work etc. Act 1974. Outline the three standard conditions that must be met for an Employee to prove a case of alleged negligence against an Employer in a Civil action Explain the meaning of the term ”Vicarious Liability” Explain using an example in EACH case the Circumstances under which a health and safety inspector may serve: (1) An Improvement Notice (2) A Prohibition Notice Outline the effect on the notice of appealing against EACH type of Enforcement Notice. List the powers given to Inspectors appointed under the Health and Safety etc. Act 1974 Outline with and example of each, the difference between Health and Safety Regulations and HSC approved Codes of Practice (2) (2)
b)
(2)
15 a)
(12)
b)
(6) (2)
c) 16 a)
b) 17
(4)
(8)
18
(8)
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NGC1 Element 1 19
Nebosh National General Certificate
With reference to the Health and Safety at Work etc. Act 1974 explain: a) What is meant by the term “Safe system of Work” in the context of Section 2 (2) a to e of the Act The main requirements of an effective safety policy under Section 2 (3) of the Act within the three areas of Statement, Organisation and Arrangements Explain the duties of Manufacturers and suppliers of machinery under Section 6 of the Act.
(6)
b)
(6)
c)
(8)
20 a)
What are the penalties for failing to comply with an Improvement or Prohibition Notice Outline the differences between an Improvement and Prohibition Notice Outline the powers of the Crown Court with regard to breaches of the Health and Safety at Work etc. Act 1974. Outline the functions of the various English Courts and Tribunals in dealing with breaches of health and safety legislation and disputes in that field. Outline the main functions of: (1) Criminal Law (2) Civil Law
(4)
b)
(4)
21
(8)
22
(8)
23
(4) (4)
24 a)
Outline FOUR powers available to an Inspector when investigating a workplace accident Identify the two types of enforcement notice that may be served by an Inspector, stating the conditions that must be satisfied before each notice is served. Outline the three standard conditions that must be met for an employee to prove a case of negligence against and employer State the circumstances in which an employer may be held vicariously liable for the negligence of an employee
(4)
b)
(4)
25 a)
(6)
b)
(2)
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Nebosh National General Certificate
NGC1 Element 1
HEALTH AND SAFETY FOUNDATIONS
NOTES
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HEALTH AND SAFETY FOUNDATIONS
NOTES
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HEALTH AND SAFETY FOUNDATIONS
NOTES
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Nebosh National General Certificate
HEALTH AND SAFETY FOUNDATIONS
NOTES
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HEALTH AND SAFETY FOUNDATIONS
NOTES
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Nebosh National General Certificate
HEALTH AND SAFETY FOUNDATIONS
NOTES
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