Element 1 Flashcards
Definition of Welfare
Access To Basic Facilities Such As Toilet Facilities
What is Common Law?
Made by Judges, through precedents that they set by decision making.
Eg: Wilsons and Clyde Coal Co. Ltd v English (1938)
What are the 3 main reasons why an organisation has to manage Health and Safety?
Moral, Economic & Legal
Definition of Safety
The Absence Of Risk Of Serious Personal Injury
Why have standards of Health & Safety improved over time?
A. Widespread access to knowledge, now ensures that anyone interested in Legal Standards or Best Practice, can find the relevant information.
B. Media coverage ensures that poor standards of Health & Safety are revealed.
C. People now take for granted, well designed and reliable equipment, a comfortable workplace, organised systems of work and high levels of training.
What are the 2 types of losses that an organisation may face?
A. Direct Costs
B. Indirect Costs
Give examples of Direct Costs?
First aid treatment
Employee sick pay
Repairs to, or replacement of, damaged equipment & buildings
Lost or damaged product
Lost production time whilst dealing with an injury
Overtime to make up for lost time
Costs associated with rehabilitating an employee
Fines in the criminal courts
Compensation payable to the victim….insurance premiums will go up
Give examples of Indirect Costs?
Loss of staff from productive duties due to investigate an incident, prepare reports, attend court proceedings, undertake hospital visits, deal with relatives, etc
Loss of staff morale - impacts on productivity & efficiency
Cost of remedial action - change of process or materials, introduction of further control measures
Compliance with any enforcement notice served
Cost of recruiting & training temporary or replacement labour
Loss of goodwill of customers - delays/fulfilling orders
Activation of Penalty Clauses for failing to meet delivery dates
Damage to public image & reputation
Damage to Industrial Relations - Industrial Action/Strikes
What 2 types of law create the framework for the regulation of Health & Safety?
Criminal Law
Civil Law
What is the maximum punishment that a Magistrates court can enforce?
£20,000 fine and/or 6 months imprisonment
What is the purpose of Criminal Law?
Punishing Companies or Individuals who have broken statute Health & Safety law
What is the purpose of Civil Law?
Compensating people who have been injured in work related accidents through no fault of their own
What are the 2 sources of law?
Statute & Common
What is the structure of the Criminal Courts?
Magistrates court, criminal division
Crown court, criminal division
Court of appeal
Supreme Court
What is Statute Law?
Made by parliament in the form of Acts & Regulations
What is the structure of the Civil courts?
County court, Civil division
High court, Civil division
Court of appeal
Supreme Court
What does Vicarious Liability mean?
The employer can be held liable for the negligent acts of his employees
How is “Harmonisation” achieved?
European Regulations
European Directives
What is the definition of European Regulations?
Statutory instruments that impose legal standards onto member states and take precedence over internal law
What is the definition of European Directives?
Statutory instruments that require member states to achieve a certain legal standard through their own internal legislation within a timescale
Who are the enforcing authorities in Criminal law?
The Health & Safety Executive (HSE) Local authorities Environmental Health Officers (EHOs) Environmental Protection Agency (EPA) Fire & Rescue authorities
What is the role of the HSE?
Enforcement of HWSA and associated law
Reviewing existing legislation and making recommendations for change
Providing information and guidance
Conducting research
Under section 20 of the HSWA 1974, what powers do inspectors have?
To enter premises at any reasonable time
To take along a police officer if they feel that they may be obstructed
To take along technical assistance or equipment if necessary
To carry out examinations and investigations
To take photographs, drawings and measurements
To take samples of articles, substances and the atmosphere
To take possession of articles/substances as evidence or testing
To take statements and interview persons
To inspect documents
To receive reasonable facilities & assistance in conducting investigations
Any other power necessary in or order to fulfil their duty
What is the definition of Negligence?
Simply defined as a failure to take reasonable care when a duty to do so existed
What are the key criteria with regard to an Improvement Notice?
Issued by an inspector when he thinks that Health & Safety law is being breached or a breach has occurred and is likely to be repeated
Only issued if the inspector feels that there is NO risk of serious personal injury
The notice will specify a timescale to achieve minimum legal standards
Timescale for improvement cannot be less than 21 days
The notice is served on the person in charge (normally the employer)
You have 21 data to appeal against the notice
What must ALL employers provide (what are his SPECIFIC duties)?
HSWA 1974:
2(2)(a) Safe plant & systems of work
2(2)(b) Safe use, handling, storage & transport of articles & substances
2(2)(c) Information, instruction, training & supervision
2(2)(d) A safe workplace & safe access to it & egress from it
2(2)(e) A safe working environment with adequate welfare facilities
What must a claimant show in order to demonstrate negligence?
A duty of care was owed to them by the person/organisation
The duty of care was breached
They suffered an injury or loss as a direct result of the breach of duty of care
What is Section 40 of HSWA 1974?
It reverses the normal burden of proof and puts the onus on the accused to demonstrate their innocence - innocence is based upon “the balance of probabilities”
Give an example of the concept of “duty of care”?
The common law case “Donogue v Stevenson (1932)” - Decomposed snail in woman’s drink….she was ill and sued…she hadn’t bought tge drink.
“Neighbour Principle”
What are the criteria with regard to a Prohibition Notice?
Issued when the inspector feels that there is a risk of serious personal injury
It will state the activity must stop until the problem has been remedied
No timescale is specified
Inspector does not need to see a breach of Health & Safety law
Served on person in control of activity - Usually employer
Any Appeal must be made within 21 days
Define the “Neighbour Principle”?
Reasonable care must be taken to avoid acts or omissions which, with reasonable foresight, you would know would be likely to injure your neighbour
What are the 3 proofs of negligence that might be used by a defendant?
No duty of care was owed to the claimant
Duty of care was not breached
No injury or loss sustained as a direct result of the breach
What is detailed under Section 6 of the HSWA 1974?
Details the duties on any person who DESIGNS, MANUFACTURES, IMPORTS or SUPPLIES any article or substance for use at work.
What is the maximum punishment that a Crown Court can enforce?
Unlimited fine and/or 2 years imprisonment
Other than the 3 proofs of negligence, what other defences are available to a defendant?
Volenti non fit injuria
Contributory negligence
The facts of the case are disputed
According to the HSWA 1974, what OTHER duties must an employer do, in order to ensure safety?
Section 2(3) requires an employer to prepare a WRITTEN H & S POLICY. Section 2(4) the appointment of safety representatives by recognised trade unions. Section 2(6) requires the employer to consult with safety representatives. Section 2(7) requires employers to establish a safety committee.
What are the 2 types of Enforcement Notice?
Improvement Notice
Prohibition Notice
Define Volenti non fit injuria?
The claimant was a willing volunteer and accepted the risk of personal injury when taking part in the activity.
An employer cannot use this to defend a claim from an employee
What must a claimant show in order to demonstrate a breach of statutory duty?
The statutory duty was placed on the defendant
The statutory duty was owed to the claimant
The defendant was in breach of the statutory duty
The breach of the statutory duty caused the injury
The injury was of a type that the statute existed to prevent
What is “Double Barrelled Action”
Using both the “tort of negligence” and the “tort of breach of statutory duty” at the same time
What is the main restriction on Vicarious Liability?
The employee has to be acting in the course of his employment when they commit the negligent act
What are the 2 types of compensation?
General damages
Special damages
Give the definition of “General Damages”
For pain, suffering, loss of amenity, loss of future earnings, etc.
These are for the Court to quantify.
Give the definition of “Special Damages”?
For loss of earning up to the trial date, travel expense to hospital, etc.
These amounts have to be quantified and proven by the claimant
What is Regulation 3 of the MHSWR 1999?
Risk Assessment
Give examples of disputes that an Employment a Tribunal may settle?
Unfair and constructive dismissal
Sex, race and age discrimination
In the context of Health & Safety law, why are Employment Tribunals important?
They hear appeals against enforcement notices
They hear appeals from Safety Representatives whose rights have been withheld
What does Section 8 of the HSWA 1974 refer to?
Interference & Misuse.
- No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of legal requirements.
What does Section 2(1) of the Health & Safety at Work Act 1974 relate to?
The employer owes a duty to his employees to ensure, so far as is reasonably practicable, their health, safety and welfare at work
How would describe “Reasonably Practicable”?
“Risk” v “Cost” (Trouble, Time & Money).
Consideration must be given to “Current Knowledge” & “Invention”
What MUST a written Health & Safety policy include?
A general Statement of policy.
The Organisation of the company.
The Arrangements for carrying out the policy.
When does a a Construction Project fall into the category of a “Notifiable” Project?
Where the Construction phase:
- Lasts over 30 days.
- Involves more 500 person days.
Under Section 4 of the HSWA 1974, give examples of who might be a “Controller of Premises”?
A Landlord.
Commercial property management company.
Under Section 6 of the HSWA 1974, what do Designers, Manufacturers, Importers & Suppliers have a duty to ensure?
Any article or substance will be safe to use.
Adequate TESTING takes place to ensure that it is safe.
The end user is provided with INFORMATION on safe use.
The end user is provided with revisions of that information as necessary.
What does Section 7 of the HSWA 1974 state?
It state that it shall be the duty of every EMPLOYEE:
- To take REASONABLE CARE for Health & Safety to HIMSELF and of OTHER PERSONS who may be affected by his ACTS or OMISSIONS at work.
- To CO-OPERATE with the employer to enable compliance with legal requirements.
Define Vicarious Liability?
An employer can be held liable for the negligent acts (or omissions) of his employees
What Section 2(2) of the HSWA 1974 relate to?
The employers duties to his employees
What does Section 3 of the HSWA 1974 relate to?
The employers DUTY TO OTHERS
What does Sections 2(3) - 2(7) under the HSWA 1974 relate to?
The employers OTHER DUTIES.
What does Section 9 of the HSWA 1974 refer to?
Free of Charge to Employees.
- The employer cannot charge his employee for things done to achieve legal compliance
What does Section 36 of the HSWA 1974 refer to?
Offences Due to Fault of Others.
- When an offence is committed by a company, and the offence is due to the act or default of some other person (consultancy advice, safety officer, etc), then that person may be charged & convicted of the offence.
What is Regulation 4 of the MHSWR 1999?
Principles of Prevention to be Applied
What does Section 37 of the HSWA 1974 refer to?
Personal Liability of Directors and Senior Managers.
- Directors & Senior Managers may be held “personally liable” for breaches of the law. They can be prosecuted for offences committed by the company if it can be shown that they “consented”, “connived” or were “negligent in their duties”, in allowing the offence to be committed.
Other than his employees, and under Section 3 of the HSWA 1974, who else does an employer have a duty to?
Clients
Visitors
Contractors
The Public
What is Regulation 5 of the MHSWR 1999?
Health and Safety Arrangements
For Notifiable Projects, who are the 5 duty holders that CDM Regulations identify as must ensure safety?
Client Designers CDM Co-ordinator Principal Contractor Contractors
According to CDM Regulations 2007, what should the Contractors ensure?
They work to the Site rules.
They co-operate with the Principal Contractor.
When notifying the HSE of a Construction Project, what must you fill in?
An F10
What does MHSWR 1999 stand for?
Management of Health and Safety at Work Regulations 1999
With regard to the “Management of Health and a Safety at Work Regulations 1999”, what must an employer ensure when conducting a Risk Assessment?
The Risk Assessment must be:
Suitable & Sufficient.
Recorded - If the employer has 5 or more employees.
Reviewed.
Definition of Health
The Absence Of Disease Or ill Health
According to CDM Regulations 2007, what should the CDM Co-ordinator ensure?
The Client is advised on the adequacy of the arrangements put in place by the other duty holders.
The HSE are notified of the Project.
The Client is advised on the appointment of competent contractors and designers.
Proper co-operation and co-ordination takes place during the design and planning process.
The Health & Safety file is prepared and passed to the Client at the end of the Project.
In Statute Law, what does “ Shall”, mean?
It means an “Absolute” duty.
This means that the requirement must be met, and there is no acceptable excuse for not doing so.
What does Section 33 of the HSWA 1974 refer to?
It is an offence to breach a prohibition notice
What is a regulation 6 of the MHSWA 1999 refer to?
Health Surveillance.
The employer MUST ENSURE that employees are provided with appropriate Health Surveillance.
Give examples of Health Surveillance?
RPS (Radiation Protection Supervisor) - If employees may come into contact with, or work in the vicinity of radioactive sources, then the RPS is an appropriate method of Health Surveillance.
A COMPETENT person is someone with sufficient:
Skills Knowledge Ability Training Experience
SKATE
What does Regulations 8 & 9 of the MHSWA 1999 refer to?
Procedures for Serious and Imminent Danger and Contact with External Services.
- Employer must develop the procedures
- He must nominate competent persons to implement procedures
- He must arrange contacts for external services (first aid, emergency medical care, rescue work).
What does Regulation 11 of the MHSWA 1999 refer to?
Co-operation and Co-ordination Where Two or More Employers Share A Workplace.
- They must CO-OPERATE & CO-ORDINATE
- They must INFORM each other of the risks to their employees
What does Regulation 10 of the MHSWA 1999 refer to?
Information for Employees.
What does Regulation 7 of the MHSWA 1999 refer to?
Health & Surveillance Assistance.
The employer MUST APPOINT one or more competent person/s to assist him in undertaking the measures he needs to take to comply with Health & Safety law.
Example: Fire Marshalls
What must the employer provide information on, for his employees?
RISKS to their Health & Safety
Preventative CONTROL MEASURES
EMERGENCY PROCEDURES
Wha do Regulations 16 - 18 of the MHSWA 1999 refer to?
Protection of New and Expectant Mothers
What does Regulations 12 & 15 refer to in the MHSWA 1999 refer to?
Information for Other Workers
What does Regulation 13 of the MHSWA 1999 refer to?
Capabilities and Training
According to CDM Regulations 2007, what should the Designers ensure?
The Client is aware of his duties under the CDM Regulations.
A CDM Co-ordinator has been appointed for Notifiable projects.
The design minimises Health & Safety risks to construction workers and other types of workers.
The design for the structure intended for use as a workplace complies with the WORKPLACE (HEALTH, SAFETY & WELFARE) REGULATIONS 1992.
When should an employer take particular account of his employees Capabilities and Training?
When ALLOCATING TASKS
When they are FIRST RECRUITED
When they are EXPOSED TO NEW OR INCREASED RISKS
What does Regulation 14 of the MHSWA 1999 refer to?
Employees duties
Define an “Expectant Mother”
A pregnant woman
What are key things that an employer must do in relation to a “New” or “Expectant” mother?
Conduct a Risk Assessment.
If risk cannot be avoided, employer must alter working conditions or hours.
If risk can still not be avoided, employer must suspend woman on full pay.
The employer may have to suspend a Night Shift worker if notified by a medical practitioner.
The employer does not have to do any of the above until notified in writing about the woman’s status.
According to CDM Regulations 2007, what should the Principal Contractor ensure?
A construction phase plan for the Project exists.
The construction phase of the Project is carried out safely.
The Site is secure.
All Contractors are working to the Site rules.
All Contractors receive site-specific induction training.
What are all Construction Projects subject to?
CDM Regulations.
Construction Design Management.
Define a “New Mother”
A woman who has just given birth, up to 6 months after birth, or while still breast feeding.
When selecting a Contractor you need to assess their Competence. What EVIDENCE OF COMPETENCE could you ask to see?
A copy of their Health & Safety Policy.
Examples of Risk Assessments.
Qualifications and Training Records of staff.
Membership of a professional organisation or certified body.
Records of maintenance and testing for a Plant and Equipment.
Names of previous or current clients.
Accident history records.
Proof of adequate Insurance.
According to CDM Regulations 2007, what should the Client ensure?
All other parties are competent.
Adequate information is passed to the other duty holders.
Work does not start until a construction phase plan for the project exists.
Adequate arrangements are made to ensure Health, Safety & Welfare during the construction phase.
Any structure intended for use as a workplace complies with the WORKPLACE (HEALTH, SAFETY & WELFARE) REGULATIONS 1992.
