1.3 The Legal Framework For The Regulation Of Health And Safety Including Sources And Types Of Law

Question 1

Name the two Sub-Divisions of the LAW that apply to issues of health and safety

Answer 1

Criminal law

Civil law

Question 2

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

Answer 2

• HSE
• Fire Authority
• the Environment Agency
• Trading Standards
• Customs and Excise
• Local Authority Environmental Health Officers

Question 3

What is criminal law and what is its role in society

Answer 3

• 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

Question 4

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

Answer 4

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.

Question 5

What is Civil Law and what its role in society

Answer 5

• 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.

Question 6

What is the influence and role of the European Union in harmonising health and safety standards?

Answer 6

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’

Question 7

Name two sources of Law?

Answer 7

• Statute law
  and
• Common law

Question 8

Explain what Common Law means

Answer 8

• 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.

Question 9

Explain the meaning of statute law

Answer 9

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.

Question 10

What role does Employment Tribunals play in health and safety

Answer 10

• 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

Question 11

An employee who is suing their employers for NEGLIGENCE needs to establish three criteria, what are they?

Answer 11

• 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

Question 12

Explain what an Approved Code of Practice (ACoP), is:

Answer 12

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

Question 13

Name some of the powers inspectors in Enforcement authorities have

Answer 13

• 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

Question 14

Name the two types of Enforcement notice available to inspectors

Answer 14

Improvement notice (section 21 HSWA)
and
Prohibition notice (section 22 HSWA)

Question 15

Explain the role of an improvement notice and the five main grounds for an appeal

Answer 15

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

Question 16

There are two forms of prohibition notices, name them,
and
Explain the role of a Prohibition notice

Answer 16

• An immediate prohibition notice stops the work activity immediately until the specific risk is reduced.
• A deferred prohibition notice stops the work activity within a specified time limit
• A prohibition notice is used to halt an activity which the inspector feels could lead to serious personal injury
• The notice will identify which legal requirement is being or is likely to be contravened
• The notice takes effect as soon as it is issued
• An appeal can be made but the notice remains in effect during the appeal process

Question 17

List the seven actions an inspector can take if they observe a potential health and safety violation.

Answer 17

• Take no action
• Give verbal advice
• Give written advice
• Issue a formal caution
• Issue an Improvement notice
• Issue a Prohibition notice
• Prosecute

Question 18

List the civil and criminal courts of Scotland

Answer 18

Civil Courts

• Supreme Court of the United Kingdom
• Court of Session
• Sheriff Appeal Court
• Sheriff Court

Criminal Courts

• High Court of Justiciary
• Sheriff Appeal Court
• Sheriff Court
• Justice of the Peace Courts

Question 19

Create a list the civil law liabilities, tests and defences needed for the syllabus

Answer 19

• Civil wrong (tort/delict)
• Tort/delict of negligence
• Duty of care (neighbour principle)

Tests and defences for tort/delict of negligence: duty owed / duty breached / injury or damage sustained

• Contributory negligence
• vicarious liability
• The employer’s civil common law duty to provide a safe place of work, safe plant and equipment, safe system of work, training and supervision and competent employees
• Breach of statutory duty in relation to new and expectant mothers

Question 20

What do employers’ have a Common law duty of care to provide and how was this precedent established ?

Answer 20

Established by case law Wilsons and clyde coal co. ltd. V English 1938
employer has a common law duty to provide:
- safe place of work including access and egress
- safe plant and equipment
- safe systems of work
- safe and competent workers
- appropriate supervision, training, information and instruction.

Question 21

Explain what a Guidance Note is and their function in health and safety:

Answer 21

• These are issued by the HSE as opinions of good practice.
• They have no legal force, but because of their origin would be ‘persuasive’ in practice with lower courts, and useful in civil cases to establish reasonable standards of care.

Question 22

Explain some of the circumstances that would warrant the issuing of an improvement notice?

Answer 22

• The inspector thinks that health and safety law is being breached or a breach has occurred and is likely to be repeated
• It will only be issued if the inspector does not think that there is a risk of serious injury
• The improvement notice will state that an improvement must be made to achieve minimum legal requirements and will impose a timescale that the inspector thinks is appropriate
• The timescale cannot be less than 21 days
• The inspector must state the specific action needed to achieve legal compliance and make reference any relevant ACoP or guidance
• Any appeal against the notice must be made within 21 days

Question 23

Explain some of the circumstances that would warrant the issuing of an prohibition notice?

Answer 23

• A prohibition notice is issued where the inspector thinks that there is a risk of serious personal injury
• The prohibition notice will state that the activity must stop
• No timescale is specified
• The inspector does not have to see a breach of health and safety law
• Any appeal against the notice must be made within 21 days

Question 24

Outline the general duties placed on employees under the:

Health And Safety at Work Act. etc 1974

And

The Management of Health and Safety Regulations 1999

Answer 24

Section 7 (employees)

• to look after the Health and Safety of themselves
• to look after the Health and Safety of others who may be affected by their acts or omissions
• to cooperate with employers to ensure they can fulfill their Health and Safety obligations

Section 8 (all persons)
- duty not to wilfully interfere or misuse anything provided in the interests of Health and Safety

Question 25

Outline the general duties placed on employees under the:

The Management of Health and Safety Regulations 1999

Answer 25

Regulation 14 MHSWR (employees duties)

• Use equipment, substance etc in accordance with training.

Report to the employer:

• serious and immediate danger
• shortcomings in Health And Safety arrangements