Employment 7- UK Health and Safety Law Flashcards
intro health and safety law?
Clear focus ept2 = discrim law Harras v and also reme discri la Having comlete discrim law Topics cover bc requirements law that we cover them LESS CARENTRY BE IN EXAM B UTT POSSIBEL, Today = basic if uk
review of lec 6?
Review:
In lecture 6, we acquired the ability to:
(i) explain in detail and apply the law on remedies re a discrimination claim; and
(ii) explain in detail and apply the remaining 2 of the 4 main types of prohibited conduct (PCo), namely:
S 26: Harassment; and
S 27: Victimisation;
the other 2 main types being:
S 13: Direct discrimination; and
S 19: Indirect discrimination
preview of lec 7?
Preview:
Lecture 7:
In lecture 7, we’ll finally move away from discrimination law and consider the topic of health and safety law, with a particular focus on the general duties owed by an employer under the Health and Safety at Work Act (HASAWA) 1974 and the guidance provided by the Health and Safety Executive (HASE)
intro to lec 7?
Welcome to lecture 7 of our Employment Law 2 module, our only lecture on health and safety law
what about HAWASA?
The Health and Safety at Work Act (HASAWA) 1974 is not in our statute book, so there is less expectation on us to provide statutory authority in our answers should there be an exam question on Health and Safety (HAS)
WHAT IS IT BOTH?
It’s both an implied term and a specific statutory duty under the HASAWA that all employers have a duty to take reasonable care for the HAS of their employees
intro in other wors?
Key stat above
Hassle health and saf work- not in sta book but sitl refer to some stat
Basic helath safety in uk
Its both impleid terma nd stat duty hat all employr have duty to take rreaosnable care for health and safety employees- basic start point
Found speci s.2 health safte- says give employer sbeit leeway has to be reaosmable practicable – ptoetc health and safety of ppl in workplace
why is HAS a controversial area?
HAS is a controversial area because employers hugely resent the burden placed on them by:
(i) the wording of the HASAWA; and
(ii) the guidance from the Health and Safety Executive (HASE), places on them
the coservative party continues to?
The Conservative Party continues to promise to reduce these burdens to help small UK businesses
always been contro in other words?
Always been contro area bc much like discrim emloyers resentful of burdens imposed byr req of hasle and alwell been aware of act have to be aware of health safety execut= indepdnant watch dog
it kind of in a wa what in other words?
. Its kind of in away attached to deprment of trade and industry but supposed to be idnepdnant than gov. but is clear connected between health and safety exec and department for trade and industry.
now something else in other words?
Now soemthign else keep agreeing that as a general rule the labour aprty focuses its attention n protecting rght for workers wheras labour for employrs. So perhaps not surpisng whever conserve keep maing promises dow hat they can to reduce burden imposed by employers help uk business to thrive. Helath safety as disliked emplyes as will discrim law
HASAWA was passed when?
The HASAWA was passed in 1974 because the Robens Committee had decided that, rather like discrimination law before the Equality Act 2010, there were too many different statutes which needed to be consolidated
under the hawasa?
Under the HASAWA, 1 body, the HASE, is charged with overseeing HAS
what does hawas cover?
The HASAWA covers all employees and non-employees except domestic workers
what is the key?
The key is whether employers control them:
passed when in other words?>
Passed way abck 1974 bc commite above – unne complica leg at time.
Un ifed equal act 2010- various did acts unifed con in the health and safety work so as we agreed its that act that makes it job of health and safety exec to supervise and oversee the helathy and safety of workers around he uk. It cobvers pretty much everybody so s.2 looks at wording relates to employees but s.3 4 extend beyond employes to even sometimes visitors who dotn even work for them, why employers don’t like cos wide.
Employer lec 9/10 various test court apply – 1 test was control test, more conrrol that employer excercised over worked, the greater chance court consie worker to be employee. And similarly with h and s and liability for h and s the court will consider the bgretaer control employer has over worker, more likely considerd liable and repson for he and s of that worker
what is the case?
Biffa Waste Services Ltd (BWS) v Maschinenfabrik Ernst Hese GmbH (MEH) 2008:
biffa waste case in depth?
BWS sued MEH which had contracted to build a plant for BWS but had sub-contracted the work to an independent company which had caused a fire
The HC: MEH was responsible for the sub-contractor’s failure as MEH had imposed sufficient control over the way the plant had been built to have become responsible
The CA: allowed MEH’s appeal, ruling that BWS could not establish MEH’s liability as the sub-contractor’s workers had too much independence as MEH supervised but didn’t control them
biffa important point?
The important point re Biffa 2008 is that it was the case in which the CA established the control principle:
Where an employer controls an independent contractor, it is vicariously liable for the HAS of the independent contractor’s workers
Breach of the HASAWA leads to a criminal prosecution rather than civil liability
There are around 1,000 prosecutions per year
wasnt efficient in other words?
Wasnr effiencient but did establish trst
if found to have rbeached any sectios its actually crime so subject to cim prosecution than civl most go to fine b ut still a crime
s.20-22 in other words and normal?
Sections 20-22 HASAWA grant powers to HASE Inspectors
Detail alter sec – s.2 duty care where practicle
s.20- 22 cover pwers inspectors do to ensur safety of worke rin work place.
s.21 and 22 bas cover genral right sinspector has to try ensure h and s of workers in workplace
concepts of vic liability?
The concepts of vicarious liability, harassment and bullying, which we came across when considering discrimination law, all apply equally to HAS
s.20 1?
Section 20(1): If an Inspector believes an employer is in breach of a statutory provision, he can issue against the employer an Improvement Notice (IN) to remedy the breach
s.20 2?
Section 20(2): Inspectors can enter premises at reasonable or dangerous times, and can take away items for examination and investigation if they feel this is necessary
s.20 2 in other words?
s.20 2 has massive lsit of power grnated to inspector e.g enter premises, if ehard com heard by nutcase polic constable, take away items for exmainatio, they can bring with them equip, hey can conduct investi, many powers to enabele inspectgors of ha nd s exec to supervie and investigate the working practise of emplpyer to ensure no dodgy machines, that non workers lives at risk
A in must give what?
An IN must give the employer at least 21 days to remedy the breach
An IN may give details of how to remedy the situation in a schedule attached to the notice
An IN does not remain in force when an employer appeals against it
s/21 in other words?
s.21 improvement notice and s.22 is prohibition notice. Prohib most feared by emplpoyer but employer not hughely innumberd by improve notice.
Improve norice 21 days to ,make improve e.g machine needs improved month to replace or alter so no logner dang
And contained within notice mgith eb isntrutions provided by isnpectior to do to bring in line with h and s law.
1 reason employer appeals it seizies to be live until appeal heard that improvement notice put on stand stil meven where appeals
Prohibition notice continues to apply even where employer appeals
Impro – bad
Prohiv - badder
s.22 ?
Section 22: If an Inspector believes an employer is in breach of a statutory provision, and to carry on in this way will involve a risk of serious personal injury, they can issue against the employer a prohibition notice (PN)
an example of pn?
An example of a PN is a requirement that workers wear safety equipment such as safety goggles to use certain machines
pn usually has what?
A PN usually has immediate effect but may kick in after a certain period
as with in a pn what?
As with an IN, a PN may give details of how to remedy the situation in a schedule attached to the notice
unlike improvement employer what?
Unlike improvement employer no time to repair its immediate and if aston were to appeal wouldn’t tstop it being live,nto stp it beig valid prohib notice
Detila in notice before employee cnan continue to operate
Limtied to sit where feels SERIOUS PERSONA INJURY- vague risk = improve but serious= prohib
however unlike IN?
However, unlike an IN, a PN remains in force when an employer appeals against it
what will an et consider?
An ET will consider whether the duty the IN or PN imposes is:
(i) reasonably practicable - Associate Dairies Ltd v Hartley 1979; - or
(ii) absolute - South Surbiton Co-operative Society v Wilcox 1974
what is another thing to note?
Another thing to note duty is sometimes the notice provided = include wording where REASONABLY PROACTICABLE and sometimes absolute…
Gotta be reaombale aksing wmplyer to do.
1 standard h and safety law- ALAR – as low as reasonable possible. So sometimes zero tol but sometimes requirements risk of injry alr
the distinction is important bc what? and et
The distinction is important because, provided the duty the IN or PN imposes is reasonably practicable rather than absolute, there are 4 grounds on which an employer can appeal to the ET re an IN or PN
what can et confirm?
The ET can affirm, modify or cancel an IN or PN
The 4 grounds of appeal are:
(i) it did not breach a statutory duty;
why dis improtant in other words?
Why dis import?
4 grounds employer can appeal in repson IN ORP P
r.a.w
1- we think done everything supposed to do
time limit 2?
(ii) the time limit imposed by the IN or PN for remedying the defect is too tight;
Time limits may be extended provided there is no immediate risk of personal injury and there is a willingness to make modifications
time limit in other words?
- Right this second amend but improv notice req only kick in after 21 days ut maybe insoector say 21 gotta do this but need mre to do this like 2 onths. Sometimes appeal might not always be to be removed but in time period allowed to make that change being itnroudced
whats no.3?
(iii) there is in fact no risk or danger; and
what happeend in brewer?
In Brewer & Sons v Dunston 1978, the ET found there was no evidence to support the contention that there was an immediate risk of serious injury (there was no evidence of a previous accident on the machine in question) so the PN was discharged
the cost complying number 5? and case?
(iv) the cost of complying with the PN is too high for the employer to do so
In Nico Manufacturing v Hendry 1975 and TC Harrison Ltd v Ramsey 1976, the ET was very reluctant to uphold an appeal on this ground through fear of giving an unfair advantage to the employer who could then avoid the HASAWA obligations
in other wrods?
r.Aw not talking about bt were talking abot local corner shop e.g discirmlaw s.20 reasonable adjustment how can smallf irm do tnhat. So case nico
Cant afford but ppsinle found of appeal
a worker appealing an et dec?
A worker appealing an ET decision must do so in the Divisional Court rather than the EAT because the EAT can hear only civil matters whereas, as we have agreed, breach of an IN or PN is a criminal offence
s.42 ?
Section 42: Rather than punish an employer, a court may order the employer to remedy the breach
failure to do ?
Failure to do so would be contempt of court
the penalty for non compliance?
The penalty for non-compliance with a section 42 order can be:
6 months / £20,000 in the Magistrate’s Court; or
2 years / an unlimited fine in the Crown Court
bring in et in other words?
Bring it in et
Where does worker appealing dec after et made dec normally appeal heard et. But ha nd s held at dicisonal court main reason cos criminal offfence.
s.42 allows court rather than fine employer t insist remedy dang sit. If fail to remdy dang sit = normally find £20,00 r.aw
Extrely rare possible for ceo employer be imprisone rare but poss
what is unusaaly for employmenet law?
Unusually for Employment Law, the ET may make a costs order against the unsuccessful party, which it is likely to do if it feels the employer made a real effort to comply or the claim seemed trivial
Let’s now consider the duties sections 2-9 impose on employers and workers:
duties s.2?
Duties s.2 – 9
s.2 key sec h and s of emplpyees
All these duties contained
s.2 1?
Section 2(1): Duties which are not absolute but reasonably practicable are owed by all employers and extend to premises over which employers have actual control
what do the duties include?
Such duties include:
(a) the provision and maintenance of plant and systems of work;
(b) safety when using or storing items;
(c) the training and supervision of workers;
(d) keeping premises in a safe condition; and
(e) having adequate facilities for a worker’s welfare
duties in oher words?
6 pack set of reg
Summarise kind of duties imposed on employer h and s r.a.w
what have we agreed?
As we’ve agreed, if statute states that a duty is absolute, then the requirements must be complied with
hw if stat?
However, if statute states that a duty only applies where reasonably practicable, then an ET has leeway to consider what is reasonable, but this tends to apply more to an IN than to a PN as an PN often deals with a risk of personal injury
s.2 3? in other words?
s.2 3 r.aw WRITTEN SAFETY POL
Doesn’t really ofeer guidna
Reviewd r.a in line with not enough pol ened to be trainig a nd if worer no engliush then obs isnturitons English wont suffice could be pics orf could be ensure e.g gogole translare these days
s. 2 3 imposes?
Section 2(3) imposes on an employer a requirement to have a written safety policy, but this only applies to an employer with 5 or more workers
s. 2 3 offers?
Section 2(3) offers no guidance on content, recognising that each employer is different
s.2 3 states?
Section 2(3) states that the policy must be reviewed and requires that a written safety policy must be brought to the attention of all workers and should lay out their responsibilities
s.2 3 also states?
Section 2(3) also states that non-English speakers / readers should be informed in a different way
s. 3 ?
Section 3 covers duties ensuring lawful visitors and those outside the premises are not exposed to risks to their HAS ‘so far as is reasonably practicable’
If there is a potential hazard, information and a warning must be provided to visitors as well as employees
in other words to this?
r.Aw nto just workers who heal safety risk its people vising to VISITORS
s.7 imposes what and s.8 ?
Section 7 imposes duties on a worker while at work
For example, a worker must:
take reasonable care to ensure the HAS of him / herself and others; and
co-operate with their employer re HAS
Section 8 imposes further duties on a worker while at work, covering intentional and reckless interference / misuse
For example, a worker must not interfere with HAS provisions
if turns out worker in?
MUST COP- IF TURN S OUT WORKER IN DANGER AGAIN AGIN – employer sill end to prove it
the hasawa also grants what?
The HASAWA also grants rights to a worker
For example, section 44 gives a worker the right not to suffer a detriment in a HAS case
Again, section 100 gives a worker the right not to be dismissed unfairly in certain circumstances involving a HAS case
what are known as six pack regulations?
What are known as the ‘Six Pack’ Regulations (regulations which apply to people in the workplace) came into force in 1993
what are the 6 regulations?
The 6 sets of regulations are as follows:
(i) The Management of HAS At Work Regs 1999
These concern the supervision by an employer of young and / or pregnant workers
thesem reg in other words?
Came into for r.a.w
thse reg in partic rel to ALAR
In terms of risk man don’t need 0 risk but only loas as risk as poss
2nd reg?
(ii) The Workplace (Health, Safety and Welfare) Regs 1992
These concern the maintenance of the workplace (heating, washing facilities, lighting, rest facilities etc)
3rd reg?
(iii) The Provision and Use of Work Regs 1998
These concern the maintenance of equipment and preparation of warning signs which can easily be understood
4th reg?
(iv) The Personal Protective Equipment at Work Regs 1992:
These concern protective clothing and equipment (which must conform to EU standards), and how to use it
5th reg?
(v) The Manual Handling Operative Regs 1992:
These concern the handling of machinery
6th reg?
(vi) The HAS (Digital Screen Equipment) Regs 1992:
These concern the maintenance of laptops, PCs etc
s.33?
Section 33: an individual (such as a director where they were responsible) as well as an organisation can be charged or convicted for breach of the ‘Six Pack’ Regs
s.40?
Section 40: The burden of proof begins with the claimant but the civil ‘balance of probabilities’ standard is applied
the burdern then switches to?
The burden then switches to the accused to prove they did all that was reasonably practicable
we only need to be aware of what?
We need only be aware of, rather than know in any detail, the Corporate Manslaughter and Corporate Homicide Act (CMACHA) 2007
The key point is that conviction under this Act requires gross breach of the duty of care
act 1?
Lecture Activity 1:
Fred owns ‘Frying Tonight’, a small fish and chip shop.
An Inspector from the HASE arrives and tells Fred he wants to make a site visit because 1 of his employees has reported that the chip fat jumps up dangerously into her face.
The Inspector mentions an IN and a PN.
scenario in othet worsds?
Do as usal apply what we learn to imagin scenario
scenario a?
(a) Referring to HAS law, advise Fred what would be the impact on his business if the Inspector issues:
(i) an IN; and / or
(ii) a PN
(b) Would there be anything Fred could do if the Inspector did issue either notice?
scenario a in other words?
First in and or pn and then say would there be any r.a.w
1st have to explain what eah notice is
suggested answer?
Suggested Answer:
(a): We might begin by saying that the law on health and safety (HAS) is contained within the Health and Safety at Work Act (HASAWA) 1974, which imposes a duty on all employers to take reasonable care for the HAS of their employees
This is an implied term as well as a specific statutory duty under the HASAWA
HAS is overseen by the Health and Safety Executive (HSE), whose inspectors can enforce HAS requirements in the workplace
answer in other words?
r.Aw s.21 IN s.22 PN
Or before act hasaw
s.2 general duyt on employers ensure has of workers ND VISITORS
Also worth nothicing HAN D S , HSE INDPEDNANT WATCHDOG INSPECTORS ROUND COUTNRY PROTECT PEOPLE WORKPALCE ANY RISK HEALTH AND SAFETY
s.20 and s.22?
Section 20 of the HASAWA allows a HSE inspector to issue on an employer which has breached the HASAWA an Improvement Notice (IN) to remedy the breach
An IN must give the employer at least 21 days to remedy the breach
Section 22 of the HASAWA allows a HSE inspector to issue on an employer which has breached HASAWA a Prohibition Notice (PN) where they feel that any activities which are carried on, or are likely to be carried on, involve a risk of serious personal injury
s.20 lists what?
S.20 lists various rights inspector has its s.21 gives right inecotr to impose notice. Might sya if in imposed onfred he ahs atleast 21 days to comply.
Or could say don’t want o se pn cos that can have immed effect only relates sit insp saitoed not just risk but seriosur ris. So quite hard for inspectore improve need for pn
for an example what?
For example, a PN might require that all workers operating a specific machine wear safety equipment
A PN can take effect immediately or after a certain period of time, and it remains in force even when an employer appeals against it
If Fred does not comply with a PN and remedy the defect it identifies, he will be committing a criminal offence
(b) So what could Fred do if the Inspector did issue either notice?
e.g of prohib notice?
e.G prohib notice req specig gogole protect worker sparks, unfortantley immediate effect even if fred wer to applea against it it wouldn’t stop the pn being valid even during appeal notice valid, unlike IN. and even worse fred igmore = crime u have to comply or might end up with fine or doin time. Hes gonna say if imposes and if does hopeIN what can I do
freds predicametn would?
Fred’s predicament would be greatly enhanced if the HASAWA section he had allegedly breached was 1 which imposes an ‘if reasonably practicable’ duty rather than an absolute duty, as it would give the ET more leeway to consider what it reasonable
there are 4 grounds on wich fred could what?
There are 4 grounds on which Fred could appeal to the ET should a PN be issued:
(i) alleging there was no breach of HASAWA;
(ii) alleging the time limit imposed for remedying the defect was too brief;
(iii) alleging there was no such risk; and
(iv) cannot afford to comply with the PN
say well hwat in relationto answer?
Say well depends on woring of notice cos some impose abslute duty to do sometjing and other only do what reasonable practi- 1st hope rwoansbly proatcial req
Point ou 4 rights of appeal u could trya nd convince tribunal actualy haven’t pbreached ahsw , time lmit for u to remdy is too unreasonable, say that thee is acutlalt no riskto anyones health, why no wisus, ru fish and chip just cant afford to comply withr eq imposed ion u
whether there was a breach ?
Whether there was a (i) breach of HASAWA is a question of fact for the ET to determine
The ET may (ii) extend the time Fred would have to comply, provided there was no immediate risk of personal injury and a willingness to make modifications
Whether there was a (iii) risk of serious personal injury is, again, a question of fact for the ET to determine
The ET is very rarely prepared to accept an (iv) inability to pay argument because it would give an unfair advantage to the employer who could then avoid the HASAWA obligations
what does tribunal do?
Tribunal then decide whethe do deice breah, time lim grante dresoansoble, satfieid fred right nor isk personal inury, 4th see vidnece from fred if he said cant afford lets see ur recent set of accounts que fish and chip down street so don’t lie.
review of lec 7?
Review:
In lecture 7, we’ll finally move away from discrimination law and consider the topic of health and safety law, with a particular focus on the general duties owed by an employer under the Health and Safety at Work Act (HASAWA) 1974 and the guidance provided by the Health and Safety Executive (HASE)
preview of lec 8?
Preview:
Lecture 8: In lecture 8, we’ll consider the topic of trade union law
Seminar 4: We have 3 activities to prepare in advance of seminar 4, in which we’ll reinforce our understanding of:
(i) the last 2 of the 6 types of PCo, namely:
S 26: Harassment; and
S 27: Victimisation; and
(ii) health and safety law
by applying our knowledge of the relevant law to problem-style questions
