1.3 The Legal Framework For The Regulation Of Health And Safety Including Sources And Types Of Law Flashcards
Name the two Sub-Divisions of the LAW that apply to issues of health and safety
Criminal law
Civil law
The Health and Safety at Work (HSW) etc. Act 1974, is an example of criminal law
List the six enforcement authorities that can enforce criminal law in relation to health and safety
- HSE
- Fire Authority
- the Environment Agency
- Trading Standards
- Customs and Excise
- Local Authority Environmental Health Officers
What is criminal law and what is its role in society
- Criminal Laws consists of rules of behaviour laid down by the Government or the State
- An individual or organisation which breaks a criminal law is deemed to have committed an offence or crime
- Prosecutions in criminal courts are concerned with guilt or innocence and the allocation of punishment to those accused found guilty
- Owing to the possibility of a loss of liberty, if found guilty, the level of proof required by a Criminal court is very high
- Proof ‘beyond reasonable doubt’, which is as near a certainty as is possible
Although the prosecution in a criminal case has to prove the guilt of the accused beyond reasonable doubt.
There is one important difference between procedures for criminal cases in general and criminal cases involving health and safety
Name the section and the act with a brief description of what this means
Section 40 of the HSW Act 1974 transferred, where there is a duty to do something ‘so far as is reasonably practicable’ or ‘so far as is practicable’ or ‘use the best practicable means’, the onus of proof to the accused to show that there was no better way to discharge his/her duty under the Act.
However, when this burden of proof is placed on the accused, they only need to satisfy the court on the balance of probabilities that what they are trying to prove has been done.
What is Civil Law and what its role in society
- Civil law is concerned with disputes between individuals or individuals and organisations
- Civil disputes usually follow accidents or illnesses and concern negligence or a breach of statutory duty
- An individual sues another individual or company to address a civil wrong or tort
- The Civil Court is concerned with liability and the extent of that liability, rather than guilt or non-guilt
- The level of proof required is based on the ‘balance of probability’, which is a lower level of certainty than that of ‘beyond reasonable doubt’
- If a defendant is found to be liable, the court would normally order compensation and/or cost
- The lower the balance of probability, the lower the level of compensation awarded.
What is the influence and role of the European Union in harmonising health and safety standards?
The main role of the EU in health and safety
- To harmonise workplace and legal standards through legally binding directives
- Directives set out specific minimum aims
- In Britain and much of the EU, health and safety law is based entirely on the principles of risk assessments
- The objective of the Single European Act 1986 is to produce a ‘level playing field’ for all member states so that goods and services can move freely around the EU without anyone state having an unfair advantage over another
- The harmonisation of health and safety requirements across the EU is one example of the ‘level playing field’
Name two sources of Law?
- Statute law
and - Common law
Explain what Common Law means
- Common law is based on judgements made by courts (or strictly judges in courts)
- Generally, in common law, courts are bound by earlier judgements on any particular point of case law, known as a ‘precedent’
- Lower courts must follow the judgements of higher courts
- In health and safety, the legal definition of negligence, duty of care and terms such as ‘practicable’ and ‘as far as is reasonably practicable’ are all based on legal judgements and form part of the common law.
Explain the meaning of statute law
Statue law is based on
- Acts of Parliament imposed on the people for the protection of the people.
- The most important piece of statute law for health and safety is of course the HSWA
(REMEMBER)
The HSWA and regulations made under the act are (NEVER) used in bringing a claim for compensation in the civil courts…
This is one exception however: expectant and nursing mothers.
What role does Employment Tribunals play in health and safety
- Employment and conditions of service issues such as unfair dismissal
- Appeals over health and safety enforcement notices
- Disputes between recognised safety representatives and their employers
- Cases of unfair dismissal involving health and safety issues
An employee who is suing their employers for NEGLIGENCE needs to establish three criteria, what are they?
- A duty was owed to the employee by the employer and the incident took place during the course of their employment
- There was a breach of that duty because the event was foreseeable and all reasonable precautions had not been taken
- The breach resulted in the specific injury, disease, damage and/or loss suffered
Explain what an Approved Code of Practice (ACoP), is:
ACoP are brought in to supplement statutory legislation such as Acts and Regulations.
- They give guidance on the general requirements and explain how the requirements can best be adequately implemented.
- This effectively allows standards to be kept current by altering the ACOP rather than having to amend the legislation.
- Failure to comply with an ACOP is not in itself an offence, but failure is held to be proof of contravention unless the defender can show the compliance was achieved in some other way.
- ACoP give more details on how to comply with the duties contained within Acts and Regulations
- The HSE produce them in an attempt to explain the law and enable the control of more complex risks
- ACoPs, while not laws do have quasi-legal status
- If a duty holder follows the advice that can be reasonably assured they are complying with the law
Name some of the powers inspectors in Enforcement authorities have
- enter any premises
- take a police constable with them
- take any other person authorised by their enforcing authority
- order that areas be left undisturbed
- take measurements, photographs and
samples - carry out tests on, and/or confiscate articles and substances
- inspect and take copies of relevant documents
- seize any article or substance and have it made harmless, by destruction if necessary
- interview and take written statements
Name the two types of Enforcement notice available to inspectors
Improvement notice (section 21 HSWA) and Prohibition notice (section 22 HSWA)
Explain the role of an improvement notice and the five main grounds for an appeal
An Improvement notice identifies a specific breach of the law and specifies a date by which the situation is to be remedied
- An appeal can be made to an employment tribunal, within 21 days
- The notice is suspended until the appeal heard
Five main grounds for appeal are:
- The inspector interpreted the law incorrectly
- The inspector exceeded their powers
- The breach of the law is admitted but the proposed solution is not practicable or reasonably practicable
- The time allowed to comply is to short
- The breach of the law is admitted but the breach is so insignificant that the notice should be cancelled