1 Foundations in health and safety Flashcards
Outline the main features of:
a) civil law; (4
(b) criminal law. (4)
The main features of civil law are that it is concerned with the rights of an individual,
deals with torts such as negligence and has as its objective the provision of a remedy
such as compensation provided a loss has been proved. The parties involved are
generally two individuals rather than the state and an individual and the decisions are
based on the balance of probabilities. Time limits apply and, dependent on the size of
the claim, cases are heard either in a small claims court, a County Court or the High
Court.
Criminal law on the other hand is based on the rights of society and the parties
involved are the state and an individual. A breach of the law which is largely based on
statute is dealt with through the criminal court system such as the Magistrates or
Crown Court and results in punishment of the defendant such as by a fine or
imprisonment if they are proved to be guilty of the offence. The burden of proof is
beyond all reasonable doubt, there is no requirement to prove loss and there is no
time limit for bringing cases to court.
In general, the answers provided to this question are to a reasonable standard but
there are a number of candidates who find difficulty in distinguishing between the
structure of the courts and the penalties that might be awarded with many suggestions
that fines may be the outcome in cases heard in the civil courts. For this question, it is
important that each issue is outlined rather than just listed. Examples of case law or
legislation are not expected in the answer.
With reference to the Construction, Design and Management Regulations
2007:
(a) outline circumstances that require a construction project to be
notified to the Health and Safety Executive (HSE); (2)
(b) outline SIX duties of the CDM Co-ordinator. (6)
In answering part (a), familiarity with Regulation 2 of the Regulations enables
candidates to obtain the marks available by identifying that the project is likely to
exceed thirty working days or will involve more than five hundred man days.
Candidates who did not possess this familiarity are usually unable to provide an
answer. Candidates should avoid confusion between person days and person hours.
Answers to part (b) show that candidates are not always conversant with the detail
contained in Regulations 20 and 21. If they possess this familiarity, they would be in a
position to outline the Co-ordinator’s duties connected with their relationship and
cooperation with other duty holders involving for example the provision of advice and
their own personal duties related to notification, the pre-construction information, the
initial construction phase plan and the production of the health and safety file. Many
candidates assign duties of other duty holders to the Co-ordinator suggesting
erroneously that their role involves site management and discipline and that they were
responsible for all health and safety matters on site. A few candidates are able to point
to the duty to provide advice but are unable to add to whom the advice should be given
and on what subject.
Examiners expect candidates to have a good broad understanding of the syllabus and
find this to be an area of weakness. Although there is a more specific NEBOSH
qualification on construction activities, this issue is clearly defined in the NGC1
syllabus and as such is examinable. Course providers and candidates need to ensure
they are familiar with the full scope of the syllabus even if some requirements are not
part of their day to day work.
(a) Outline possible defences to a civil law claim of negligence. (6)
(b) Explain the circumstances in which an employer may be subject
to vicarious liability. (2)
This question related to Element 1 of the syllabus and assessed candidates’
knowledge of learning outcomes 1.3: Explain the legal framework for the regulation of
health and safety including sources and types of law, in this case the defences to a
claim for negligence.
There are a range of possible defences in a claim of negligence, those who did know
the range of possible defences often failed to gain maximum marks because they
listed them rather than outlined the detail as requested by the question. There was
also a range of candidates who detailed statute law issues giving confused answers
showing a lack of understanding of the UK legal framework. Vicarious liability is a civil
law concept but again too many answers referred to the Health and Safety at Work Act
and Statute law instead of the duty the employer has for the actions of their employees
when they are at work.
Section 3 of the Health and Safety at Work etc Act 1974 gives employers
responsibilities for those affected by their work activities.
(a) Identify categories of persons that Section 3 would cover. (5)
(b) Give the meaning of the term ‘so far as is reasonably practicable’
AND give a practical workplace example. (3)
This question related to Element 1 of the syllabus and assessed candidates’
knowledge of learning outcomes 1.3; Explain the legal framework for the regulation of health and safety including the sources and types of law, and 1.4: Explain the scope,
duties and offences of employers under the Health and Safety at Work etc. Act 1974
and the general duties of employers and self employed to persons other than their
employees.
Section 3 of Health and Safety at Work Act covers “Others” which may include
contractors and visitors but it does not cover groups of employees who may be at
greater risk such as those with disabilities or young people. This question only required
an identification of five different categories of people covered by the legal requirement.
Just providing one or two answers was not enough to gain the full marks available.
There are three main levels of duties and one, so far as is reasonably practicable is a
concept incorporated into the Health and Safety at Work Act and other UK legal
requirements. Despite being part of our legal system since 1974 the answers given to
this part of the question were limited. This concept allows businesses and employers
to make decisions on how they manage the health and safety risks in their business.
Outline the differences between:
(a) health and safety regulations; (4)
(b) HSE/HSC approved codes of practice (4)
AND give an example in EACH case.
This question related to Element 1 of the syllabus and assessed candidates’
knowledge of learning outcomes 1.3: Explain the legal framework for the regulation of
health and safety including sources and types of law.
The structure of the question being broken down into part (a) and (b) may have caused
some confusion and this issue was taken into account in the marking processes. The
question asked about the differences between health and safety regulations and
approved codes of practice. Regulations are legal requirements supporting the Health
and Safety at Work Act whereas approved codes of practice support legislation but in
their own right are not legally enforceable.
The question also asked for an example of each, only a limited number of health and
safety regulations have approved codes of practice but several of these form part of
the syllabus. Many answers failed to give any examples. Giving the Health and Safety
at Work etc Act 1974 as an example of a regulation shows a lack of understanding of
the legal health and safety concepts of the UK.
An employee has been seriously injured using a machine. The accident
has been reported to an enforcement inspector by the employer. The
subsequent investigation identified that the design of the machine meant
that several dangerous parts were unguarded and the machine controls
had been overridden.
(a) Outline the possible breaches of the Health and Safety at Work
etc Act 1974 by the:
(i) employer AND give practical workplace examples; (6)
(ii) machine manufacturer AND give practical workplace
examples. (4)
(b) Outline the enforcement action that the enforcement inspector
may take after concluding the investigation. (3)
(c) Give the documented information that the employer (or their
insurer) might need to use to defend a civil claim by the injured
employee AND, in EACH case, explain why it would be relevant.
(7)
This question related to Elements 1 and 5 of the syllabus and assessed candidates’
knowledge of learning outcomes 1.3 Explain the legal framework for the regulation of
health and safety including sources and types of law, 1.4 Explain the scope and duties
under the Health and Safety at Work etc. Act 1974 and 5.4 Describe the legal and
organisational requirements for recording and reporting incidents.
The question enabled candidates to show their knowledge of the practical implications
of a typical workplace accident involving a piece of machinery, in relation to breaches
of the Health and Safety at Work Act 1974. The breaches needed to be outlined rather
than just stated and marks were missed by not relating the answer to the scenario
given. The full range of powers of the enforcement inspector were generally outlined
fully. Part (c) was interested in documented sources of information useful in a civil
claim, marks were only available for documented sources rather than general
information sources. In some cases answers outlined the criteria for taking a civil claim
for negligence rather than the information sources required to defend a claim. In
addition, part (c) required the reason why the documented source was relevant and
this was missed by a number of candidates. It is important to read each part of the
question fully and take into account any command words given, especially when there
is more than one in a particular question.
An employer has selected a contractor to carry out renovation work on
their building that will still be occupied whilst the work is being carried out.
Outline arrangements the employer can make to control the contractor
whilst this work is being carried out. (8)
This question related to Element 1 of the syllabus and assessed candidates’
knowledge of learning outcomes 6: Outline the legal and organisational health and
safety roles and responsibilities of clients and their contractors.
Employers need to ensure effective planning and co-ordination of any work completed
by contractors on their site, especially if the employer is still going to be working on site
at the same time.
There have been a number of questions in the NGC1 on the selection of contractors
however that was not the question set in this case. The question focused on controlling
the work once the work is being carried out.
Candidates appeared to misread this question. The vast majority gave answers which
centred around the types of information required to be submitted by a contractor at the
pre-tender stage of a project. Many described the types of arrangements which would be
requested for a contractor to provide, if on an approved contractor list. Many did not
identify the arrangements required whilst the work was being carried out. It is important to
ensure that the question is read carefully to ensure that it is being answered
appropriately.
(a) Outline the employees’ duties under the Management of Health
and Safety at Work Regulations 1999. (2)
(b) Identify employee responsibilities that could be included in the
‘organisation’ section of a health and safety policy. (6)
This question related to Element 1 of the syllabus and assessed candidates’
knowledge of learning outcome 5: Explain the scope, duties and offences of
employers, managers, employees and others under the Management of Health and
Safety at Work Regulations 1999 and Element Two, learning outcome 2.3 Explain the
purpose and importance of setting policy for health and safety.
Employees have a number of legal duties under the Management of Health and Safety
at Work Regulations 1999 but these were often confused with the duties of the
employee under the Health and Safety at Work at Work Act 1974.
The “organisation” of a health and safety policy establishes responsibilities and this
question focused on employee responsibilities only. Answers giving details of the
responsibilities of the managing director, managers, health and safety adviser and first
aider were not required. For those who had studied this area of the syllabus and
reviewed a typical health and safety policy this question allowed candidates to
demonstrate their knowledge of this important concept.
An organisation experienced a reportable accident involving a contract
cleaner who slipped and fell downstairs. An investigation revealed that no
checks had been conducted to determine the competence of the
contractor.
(a) Give reasons why a contractor’s employee might be at greater
risk than the organisation’s own employees. (4)
(b) Outline procedures that an organisation should have in place to
ensure suitable contractors are selected and that they work in a
safe manner. (4)
(c) Outline the factors that the organisation should consider when
assessing the health and safety competence of a contractor. (8)
(d) Outline the duties placed on the contractor’s employees by the
Health and Safety at Work etc Act 1974. (4)
This question related to Elements 1 and 3 of the syllabus and assessed candidates’
knowledge of learning outcomes 1.4: Explain the scope, duties and offences of
employers, managers, employees and others under the Health and Safety at Work
etc. Act 1974, 1.6: Outline the legal and organisational health and safety roles and
responsibilities of clients and their contractors and 3.4: Explain how health and safety
behaviour at work can be improved.
Part (a) of the question was understood by the majority of candidates and therefore
produced a satisfactory, if somewhat narrow response. Many candidates were unable
to give reasons beyond workplace familiarity, supervision or training issues. Also, it
should be noted that, whilst the scenario refers to a contract cleaner, part (a) refers
more generally to a contractor’s employees.
Part (b) specifically asks for procedures that an organisation should consider and the
answers provided by candidates were generally limited. Some did not read this part
thoroughly and responded by simply outlining how to select a competent contractor
and failed to appreciate that the question also required procedures to ensure that
contractors work in a safe manner. In restricting their answers to competence issues
many candidates included points that were relevant to part (c). Candidates would have
benefited from reading the whole question before answering any of the parts.
Part (c) was answered reasonably well. Some candidates repeated the same points
raised in part (b) and were able to gain marks.
For part (d) the majority of candidates were able to outline some of the employee
duties under Sections 7 and 8 of the Health and Safety at Work etc Act 1974. In spite
of the question clearly requiring employee duties, some candidates seem to have
misread or misunderstood the question and as a consequence have outlined other
duties under the Health and Safety at Work etc Act 1974. Also, some candidates were
confused between the duties under the Health and Safety at Work etc Act 1974and
the employer duties contained in the Management of Health and Safety at Work
Regulations 1999 and as a consequence could be awarded very few marks.
Identify possible costs to an organisation resulting from a case of work-
related ill-health of an employee. (8)
This question related to Element 1 of the syllabus and assessed candidates’
knowledge of learning outcome 1.2: Explain the moral and financial reasons for
promoting good standards of health and safety in the workplace.
This question was particularly well answered by the majority of candidates. Some
would have gained more marks had they thoroughly read the question and realised
that this question related to costs resulting from a case of work-related ill-health and
not from a work-related injury accident. They would then have not wasted valuable
time by including such costs as damage to plant. It was pleasing to find that many
candidates and hence providers were up-to-date by the inclusion of fees for
intervention.
Replacement and retraining of staff is a cost that an organisation may
face following a workplace accident.
Identify EIGHT other possible costs to an organisation that are not
covered by Employers’ Liability Insurance. (8)
In answering this question, candidates could have identified possible costs such as
those associated with lost production; staff absence and sick pay; the repair of
damaged plant and equipment together with damage to materials and products; costs
involved in investigating the accident and in taking the necessary remedial action; the
additional administration incurred by the accident; a likely increase in insurance
premiums; possible fines and damages awarded together with court and other legal
representation costs; and also the intangible costs arising from a loss of business
image and the detrimental effect on employee morale resulting in reduced
productivity.
Answers to this question were generally to a good standard though there were some
candidates who did not read it with sufficient care and referred to the replacement and
retraining of staff.
In order to meet a production deadline, a supervisor instructed an
employee to operate a machine which they both knew to be defective.
Giving reasons in EACH case, identify possible breaches of the Health
and Safety at Work etc Act 1974 in relation to this scenario. (8)
This question required candidates to demonstrate an understanding not only of the
requirements of Section 2 of the HSW Act as to the general duties of employers to
their employees in relation to this scenario but also and in particular, the duty to
provide and maintain safe plant and equipment (Section 2(2)(a)) and adequate
instruction and supervision (Section 2(2)(c)).
Some candidates were able to identify breaches of the Act but were then unable to
give reasons for the breach. Others gave reasons without connecting them to a
breach. A few candidates did not mention Sections 7 and 8 whilst references to
Sections 36 and 37 were also rare. There was also evidence that the question had not
been read with sufficient care with references being made to breaches of Provision
and Use of Work Equipment Regulations and the Management of Health and Safety
at W ork Regulations with the occasional suggestion that the employer was in breach
of his common law duty of care.
A hospital is to be refurbished.
Outline the criteria which could be used to select competent construction
contractors to undertake the task. (8)
Candidates were expected to outline criteria such as a contractor’s previous
experience with the type of work to be carried out; references and reputation
amongst previous or current clients; evidence of sufficient resources to undertake
the contract; accident records and any action taken by the enforcement authority; the
quality of health and safety policy and the systems in place for its implementation
including, for example, the quality of the risk assessments and method statements
and the effectiveness of monitoring systems such as inspections and audits; the level
of training and qualifications of staff, including those with health and safety
responsibilities; procedures for the selection and monitoring of sub-contractors; and
membership of a trade organisation or professional body.
The question was generally well answered though some candidates tended to
concentrate on the stages in a pre-tender process rather than the criteria to be
considered in the selection of a contractor. A few concentrated on the existence of
liability insurance to the exclusion of all other criteria. There was the occasional
reference to the need for the contractor to have a ‘good track record’ , which was not
enough detail to satisfy an outline question.
(a) Outline SIX possible defences to a civil law claim of negligence. (6)
(b) Explain the circumstances in which an employer may be subject
to vicarious liability. (2)
A good answer to part (a) of the question would have outlined the standard defences
that no duty of care was owed to the claimant in that the injury was not caused in the
course of employment; that the duty was not breached in that what happened was not
reasonably foreseeable; that, if there was a breach, the injury or loss sustained was
not caused directly by the breach; and that no loss in fact occurred as a consequence
of the alleged negligence. Other possible defences that might have been quoted
include the voluntary acceptance of the risk by the claimant – ‘volenti non fit injuria’;
the partial defence of contributory negligence by the injured party; that the harm was
caused by an act of God such as flooding or a lightning strike; and the fact that the
claim was made outside the allowed time limits. The last two defences did not appear
in too many scripts. A number of candidates identified a number of defences but did
not provide sufficient detail to satisfy an outline question. Some outlined the criteria
necessary to prove negligence, others identified offences rather than defences and
there was the occasional reference to the criminal duties of an employer.
For part (b), candidates were expected to explain that for an employer to be subject to
vicarious liability, it must be proved that the employee was acting in the course of
employment, and while so doing, negligently caused injury, damage or loss to a third
party. Answers were generally limited and there was often confusion with contributory
negligence or ’volenti non fit injuria’.
With reference to section 6 of the Health and Safety at Work etc Act
1974, outline the general duties of designers, importers, manufacturers
and suppliers of articles and substances for use at work to ensure that
they are safe and without risk to health. (8)
Section 6 of the Health and Safety at Work etc Act 1974 places an obligation on
designers, manufacturers and suppliers of articles and substances for use at work to
ensure so far as is reasonably practicable, that articles are designed and constructed
to be safe and without risk to health at all times when they are being set, cleaned,
used and maintained and that substances are likewise safe and without risk to health
when being used, handled, stored or transported. Testing and examination must be
carried out to ensure the required level of safety and freedom from risk and
additionally employers should be provided with information on the safe use,
dismantling and disposal of the articles and substances and given revised information
should a subsequent serious risk become known. Importers have a duty to ensure
articles or substances comply with the requirements of UK legislation.
This question was poorly answered with few candidates showing knowledge of the
requirements of Section 6 with the result that responses were minimal and restricted.
Some candidates confused duties under Section 6 with those of an employer under
Section 2, others referred to compliance with EU standards and the need for CE
marking while a few referred to the requirements of COSHH and the duties of the
designer under the CDM Regulations.
