Health and Safety at Work etc. Act 1974

Question 1

How to remember the

Health and Safety at Work Act etc. 1974

Answer 1

General duty and PC Lord 247 chained all employees who misuse PPE

2. 1 -GENERAL DUTY
3. 2 - SPECIFIC DUTIES

a - A PLANT

b - BAGS

c - CLASS ROOM

d - DOORS

e - ENVIRONMENT

2. 3 - POLICY
3. 4 -7- CONSULTATION

4 - LANDLORDS

6 - SUPPLY CHAIN

7- EMPLOYEES

8- MISUSE

9- FREE PPE

Question 2

What is the

Aim of the act

Answer 2

1. Protect people
2. To protect the public form risks which may arise from work activities

An Act to make further provision for securing the health, safety and welfare of personsat work, for protecting others against risks to health or safety in connection with theactivities of persons at work, for controlling the keeping and use and preventing theunlawful acquisition, possession and use of dangerous substances, and for controllingcertain emissions into the atmosphere; to make further provision with respect to theemployment medical advisory service; to amend the law relating to building regulations,and the Building (Scotland) Act 1959; and for connected purposes

Question 3

Section 1

Answer 3

SECTION 1

The provisions of this Part shall have effect with a view to—

a) Securing the health, safety and welfare of people at work
b) Protecting other against risk arising from workplace activities
c) Controlling the obbtaining, keeping, and use of explosive and highly flamable substances
d) Controlling emission into the atmoshere of noxious or offensive substances

Duties are imposed on:

a) The employer
b) The self employed
c) Employees
d) Contractors and subcontractors
e) Designers, manufacturers, suppliers, importers and installers
f) Specialists - architects, suveyors, engineers, personal managers, health and safety practitioners, and many more

Question 4

Section 2 (1)

Answer 4

EMPLOYERS DUTIES - [TO EMPLOYEES]

• *2 (1) General duties of employers to their employees.**
  (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable,the health, safety and welfare at work of all his employees.

Question 5

Section 2 (2)

Answer 5

2 (2) Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular— ENSURING HEALTH ,SAFETY AND WELFARE AT WORK THROUGH:

a) A PLANT the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; e.g. provision of guards on machines

b) BAGS (think carrier bags with handles) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; e.g. good manual handling of boxs

c) CLASSROOM OR COMMUNICATE the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees; e.g. provision of induction training

d) DOORS so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and with out risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; e.g. walkways kept clear

e) ENVIRONMENT the provision and maintenance of a working environment for his employeesthat is, so far as is reasonably practicable, safe, without risks to health, andadequate as regards facilities and arrangements for their welfare at work. e.g. good lighting

Question 6

Section 2 (3)

Answer 6

2 (3) POLICY

(3) Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy,and to bring the statement and any revision of it to the notice of all of his employees.

PREPARE AND KEEP UP TO DATE A WRITTEN POLICY SUPPORTED BY INFORMATION ON THE ORGANISATION AND ARRANGEMENTS FOR CARRYING OUT THE POLICY. THE SAFETY POLICY HAS TO BE BROUGHT TO THE NOTICE OF EMPLOYEES. IF THERE ARE FEWER THAN FIVE EMPPLOYEES, THIS SECTION DOES NOT APPLY.

WHen five or more people are employed the empoyer must ensure:

• Prepare a written general health & safety policy
• Set down the arrangements for putting that policy into effect
• Revise & update the policy as necessary .
• Bring the policy and arrangements to the notice of all employees

Question 7

Section 2 (4)

Answer 7

2 (4) TRADE UNIONS

2 (4) Regulations made by the Secretary of State may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under subsection.

RECOGNISED TRADE UNIONS HAVE THE RIGHT TO APPOINT SAFETY REPRESENTATIVES TO REPRESENT THE EMPLOYEES IN CONSULTATIONS WITH THE EMPLOYER ABOUT HEALTH AND SAFETY MATTERS

Question 8

Section 2 (5)

Answer 8

Defunct - no longer used

Question 9

Section 2 (6)

Answer 9

2 (6) It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures.

EMPLOYERS MUST CONSULT WITH ANY SAFETY REPRESENTATIVES APPOINTED BY RECOGNISED TRADE UNIONS

Question 10

Section 2 (7)

Answer 10

2 (7) SAFETY COMMITTEE

(7) In such cases as may be prescribed it shall be the duty of every employer, if requested to do so by the safety representatives mentioned in (4) above, to establish, in accordance with regulations made by the Secretary of State, a safety committee having the function of keeping under review the measures taken to ensure the health and safety at work of his employees and such other functions as may be prescribed.

ESTABLISH A SAFETY COMMITTEE IF REQUESTED BY TWO OR MORE SAFETY REPRESENTATIVES

Question 11

Section 3 (1), (2) & (3)

Answer 11

3 TO EVERYBODY - EMPLOYER’S DUTIES [TO PERSONS NOT HIS EMPLOYEES]

General duties of employers and self-employed to persons other than their employees.
(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

(3) In such cases as may be prescribed, it shall be the duty of every employer and everyself-employed person, in the prescribed circumstances and in the prescribed manner,to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.

• NOT TO EXPOSE THEM TO RISK TO THEIR HEALTH AND SAFETY E.G. CONTRACTOR WORK BARRIERED OFF.
• TO GIVE INFORMATION ABOUT RISKS WHICH MAY AFFECT THEM E.G. LOCATION INDUCTION FOR CONTRACTORS.

Question 12

Section 4

Answer 12

4 LANDLOARDS/PREMISES - CONTROL OF PREMISES

General duties of persons concerned with premises to persons other than their employees.

(1) This section has effect for imposing on persons duties in relation to those who—

a) are not their employees; but
b) use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there,

and applies to premises so made available and other non-domestic premises used in connection with them.

(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access there to or egress there from or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access there to or egress there from available for use by persons using the premises, and any plant or substance in the premises or, as the case may be,provided for use there, is or are safe and without risks to health.

(3) Where a person has, by virtue of any contract or tenancy, an obligation of any extentin relation to—

a) the maintenance or repair of any premises to which this section applies or any means of access there to or egress there from; or
b) the safety of or the absence of risks to health arising from plant or substances in any such premises;

that person shall be treated, for the purposes of subsection (2) above, as being a person who has control of the matters to which his obligation extends.

(4) Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).

This section places duties on anyone who has control to any extent or non-domestic premises used by people who are not their employees. The duty extends to the provision of safe premises, plant and substances, e.g. maintenance of a boiler in rented out property.

Question 13

Section 5

Answer 13

Does not apply

Question 14

Section 6

Answer 14

6 SUPPLY CHAIN - MANUFACTURERS, DESIGNERS, SUPPLIERS, IMPORTERS, INSTALLERS

(6) General duties of manufacturers etc. as regards articles and substances for use at work.

This section places specific duties on those who can ensure that articles and substances are as safe and without risks as is reaonsably practicable. The section covers:

• safe design, installation and testing of equipment
• safe substances tested for risks
• provision of information on safe use and conditions essential to health and safety
• research to minimise risks

Question 15

Section 7

Answer 15

(7) EMPLOYEES’ DUTIES

It shall be the duty of every employee while at work—

a) to take resonable care for themselves and others that may be affected by their act/omissions e.g. wear eye protection, not obstruct a fire exit.
b) to co-operate with the employer or other to enable them to carry out their duty and/or statutory requirements e.g. report hazards or defects in controls, attend training, provide medical samples.

Question 16

Section 8

Answer 16

8 MISUSE

Duty not to interfere with or misuse things provided pursuant to certain provisions.

No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions.

eg wedge fire doors open,remove fist aid equipment without authority.

Question 17

Section 9

Answer 17

9-FREE PPE - Duty not to charge employees for things done or provided pursuant (to comply) to certain specific requirements.

No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions.

• eg PPE, health surveillance, welfare facilities.*
• EMPLOYEES CANNOT BE CHARGED FOR ANYTHING DONE OR PROVIDED TO COMPLY WITH SPECIFIC LEGAL OBLIGATION*

Question 18

Section 15, 16

Answer 18

15 Health and safety regulations.

(1) Subject to the provisions of section 50, the Secretary of State….. shall have power to make regulations under this section for any of the general purposes of this Part (and regulations so made are in this Part referred to as “health and safety regulations”).]

16 Approval of codes of practice by [the Executive]

(1) For the purpose of providing practical guidance with respect to the requirements of any provision of [any of the enactments or instruments mentioned in subsection (1A)below] , [the Executive] may, subject to the following subsection . . .

a) approve and issue such codes of practice (whether prepared by it or not) as in its opinion are suitable for that purpose;
b) approve such codes of practice issued or proposed to be issued otherwise than by [the Executive] as in its opinion are suitable for that purpose.

Question 19

Section 17

Answer 19

17-Use of approved codes of practice in criminal proceedings.

(1) A failure on the part of any person to observe any provision of an approved code of practice shall not of itself render him liable to any civil or criminal proceedings; but where in any criminal proceedings a party is alleged to have committed an offence by reason of a contravention of any requirement or prohibition imposed by or under any such provision as is mentioned in section 16(1) being a provision for which there was an approved code of practice at the time of the alleged contravention, the following subsection shall have effect with respect to that code in relation to those proceedings.

(2) Any provision of the code of practice which appears to the court to be relevant to the requirement or prohibition alleged to have been contravened shall be admissible in evidence in the proceedings; and if it is proved that there was at any material time a failure to observe any provision of the code which appears to the court to be relevant to any matter which it is necessary for the prosecution to prove in order to establish a contravention of that requirement or prohibition, that matter shall be taken as proved unless the court is satisfied that the requirement or prohibition was in respect of that matter complied with otherwise than by way of observance of that provision of the code.

(3) In any criminal proceedings—

a) a document purporting to be a notice issued by [the Executive] under section 16 shall be taken to be such a notice unless the contrary is proved; and
b) a code of practice which appears to the court to be the subject of such a notice shall be taken to be the subject of that notice unless the contrary is proved.

Question 20

Section 20

Answer 20

20-Powers of inspectors.

(1) Subject to the provisions of section 19 and this section, an inspector may, for the purpose of carrying into effect any of the relevant statutory provisions within the field of responsibility of the enforcing authority which appointed him, exercise the powers set out in subsection (2) below.

(2) The powers of an inspector referred to in the preceding subsection are the following,namely—

a) at any reasonable time (or, in a situation which in his opinion is or may bedangerous, at any time) to enter any premises which he has reason to believeit is necessary for him to enter for the purpose mentioned in subsection (1)above;
b) to take with him a constable if he has reasonable cause to apprehend any serious obstruction in the execution of his duty;
c) without prejudice to the preceding paragraph, on entering any premises by virtue of paragraph (a) above to take with him—
i) any other person duly authorised by his (the inspector’s) enforcing authority; and
ii) any equipment or materials required for any purpose for which the power of entry is being exercised;
d) to make such examination and investigation as may in any circumstances be necessary for the purpose mentioned in subsection (1) above;
e) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything therein, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (d) above;
f) to take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (d) above;
g) to take samples of any articles or substances found in any premises which he has power to enter, and of the atmosphere in or in the vicinity of any such premises;
h) in the case of any article or substance found in any premises which he has power to enter, being an article or substance which appears to him to have caused or to be likely to cause danger to health or safety, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is in the circumstances necessary for the purpose mentioned in subsection (1) above);
i) in the case of any such article or substance as is mentioned in the preceding paragraph, to take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely—
i) to examine it and do to it anything which he has power to do underthat paragraph;
ii) to ensure that it is not tampered with before his examination of it is completed;
iii) to ensure that it is available for use as evidence in any proceedings for an offence under any of the relevant statutory provisions or any proceedings relating to a notice under section 21 or 22;
j) able to give any information relevant to any examination or investigation under paragraph (d) above to answer (in the absence of persons other than a person nominated by him to be present and any persons whom the inspector may allow to be present) such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers;
k) to require the production of, inspect, and take copies of or of any entry in—
i) any books or documents which by virtue of any of the relevant statutory provisions are required to be kept; and
ii) any other books or documents which it is necessary for him to see for the purposes of any examination or investigation under paragraph (d)above;
l) to require any person to afford him such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the inspector to exercise any of the powers conferred on him by this section;
m) any other power which is necessary for the purpose mentioned in subsection (1) above.
(3) The Secretary of State may by regulations make provision as to the procedure tobe followed in connection with the taking of samples under subsection (2)(g) above (including provision as to the way in which samples that have been so taken are to be dealt with).
4) Where an inspector proposes to exercise the power conferred by subsection (2)(h) above in the case of an article or substance found in any premises, he shall, if so requested by a person who at the time is present in and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person unless the inspector considers that its being done in that person’s presence would be prejudicial to the safety of the State.
5) Before exercising the power conferred by subsection (2)(h) above in the case ofany article or substance, an inspector shall consult such persons as appear to him appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under that power.
6) Where under the power conferred by subsection (2)(i) above an inspector takes possession of any article or substance found in any premises, he shall leave there, either with a responsible person or, if that is impracticable, fixed in a conspicuous position, a notice giving particulars of that article or substance sufficient to identify it and stating that he has taken possession of it under that power; and before taking possession of any such substance under that power an inspector shall, if it is practicable for him to do so, take a sample thereof and give to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it.
7) No answer given by a person in pursuance of a requirement imposed under subsection (2)(j) above shall be admissible in evidence against that person or the[spouse or civil partner] of that person in any proceedings.
8) Nothing in this section shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court or,as the case may be, on an order for the production of documents in an action in the Court of Session.

Question 21

Section 21

Answer 21

21-IMPROVEMENT NOTICES

If an inspector is of the opinion that a person—

a) is contravening one or more of the relevant statutory provisions; or
b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated,

he may serve on him a notice (in this Part referred to as “an improvement notice”) stating that he is of that opinion, specifying the provision or provisions as to which he is of that opinion, giving particulars of the reasons why he is of that opinion, and requiring that person to remedy the contravention or, as the case may be, the matters occasioning it within such period (ending not earlier than the period within which an appeal against the notice can be brought under section 24) as may be specified in the notice.

Question 22

Section 22

Answer 22

22-PROHIBITION NOTICES

(1) This section applies to any activities which are being or are [likely] to be carried on by or under the control of any person, being activities to or in relation to which any ofthe relevant statutory provisions apply or will, if the activities are so carried on, apply.

(2) If as regards any activities to which this section applies an inspector is of the opinion that, as carried on or [likely] to be carried on by or under the control of the person in question, the activities involve or, as the case may be, will involve a risk of serious personal injury, the inspector may serve on that person a notice (in this Part referredto as “a prohibition notice”).

3) A prohibition notice shall—

a) state that the inspector is of the said opinion;
b) specify the matters which in his opinion give or, as the case may be, will give rise to the said risk;
c) where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, state tha the is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and
d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of paragraph (b) above and any associated contraventions of provisions so specified in pursuance of paragraph (c) above have been remedied.

4) A direction contained in a prohibition notice in pursuance of subsection (3)(d) above shall take effect—

a) at the end of the period specified in the notice; or
b) if the notice so declares, immediately.]

Question 23

Section 24

Answer 23

24 Appeal against improvement or prohibition notice.

(1) In this section “a notice” means an improvement notice or a prohibition notice.

(2) A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an [employment tribunal]; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.

(3) Where an appeal under this section is brough against a notice within the period allowed under the preceding subsection, then—

(a) in the case of an improvement notice, the bringing of the appeal shall have the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal;
(b) in the case of a prohibition notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant the tribunal so directs (and then only from the giving of the direction).

(4) One or more assessors may be appointed for the purposes of any proceedings brought before an [employment tribunal] under this section.

Question 24

Section 25

Answer 24

• *25-Power to deal with cause of imminent danger.**
• *(1)** Where, in the case of any article or substance found by him in any premises which he has power to enter, an inspector has reasonable cause to believe that, in the circumstances in which he finds it, the article or substance is a cause of imminent danger of serious personal injury, he may seize it and cause it to be rendered harmless (whether by destruction or otherwise).

Question 25

Section 33

Answer 25

33 OFFENCES

1) It is an offence for a person—

a) to fail to discharge a duty to which he is subject by virtue of sections 2 to 7;
b) to contravene section 8 or 9; (9=no imprisonment)
c) to contravene any health and safety regulations. . . or any requirement or prohibition imposed under any such regulations (including any requirement or prohibition to which he is subject by virtue of the terms of or any conditionor restriction attached to any licence, approval, exemption or other authority issued, given or granted under the regulations);
d) to contravene any requirement imposed by or under regulations undersection 14 or intentionally to obstruct any person in the exercise of his powers under that section;
e) to contravene any requirement imposed by an inspector under section 20 or25;
f) to prevent or attempt to prevent any other person from appearing before an inspector or from answering any question to which an inspector may by virtue of section 20(2) require an answer;
g) to contravene any requirement or prohibition imposed by an improvement notice or a prohibition notice (including any such notice as modified on appeal);
h) intentionally to obstruct an inspector in the exercise or performance of his powers or duties [or to obstruct a customs officer in the exercise of his powers undersection 25A];
i) to contravene any requirement imposed by a notice under section 27(1);
j) to use or disclose any information in contravention of section 27(4) or 28;
k) to make a statement which he knows to be false or recklessly to make a statement which is false where the statement is made—
i) in purported compliance with a requirement to furnish any information imposed by or under any of the relevant statutory provisions; or
ii) for the purpose of obtaining the issue of a document under any of therelevant statutory provisions to himself or another person;
(l) intentionally to make a false entry in any register, book, notice or other documentrequired by or under any of the relevant statutory provisions to be kept, served or given or, with intent to deceive, to make use of any such entry which he knows to be false;
m) with intent to deceive, to [forge or] use a document issued or authorised to be issued under any of the relevant statutory provisions or required for any purpose there under or to make or have in his possession a document so closely resembling any such document as to be calculated to deceive;
n) falsely to pretend to be an inspector;
o) to fail to comply with an order made by a court under section 42.

Offence: under section 33

Mode Of Trail: Summarily or on indictment

Penalty on Summary Conviction: imprisonment for a term not exceeding 12 months or a fine not exceeding £20,000

Penalty on Conviction on indictment:imprisonment for a term not exceeding two years, or a fine, or both

Question 26

Section 36

Answer 26

36-OFFENCES COMMITTED BY OTHER PERSONS - OFFENCES DUE TO FAULT OF OTHER PERSON

(1) Where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.

(2) Where there would be or have been the commission of an offence under section 33 by the Crown but for the circumstance that that section does not bind the Crown, and that fact is due to the act or default of a person other than the Crown, that person shall be guilty of the offence which, but for that circumstance, the Crown would be committing or would have committed, and may be charged with and convicted of that offence accordingly.

(3) The preceding provisions of this section are subject to any provision made by virtue of section 15(6).

CASE LAW INDICATES THAT ‘OTHER PERSON’ REFERS TO PERSONS LOWER DOWN THE CORPORATE TREE THAN MENTIONED IN SECTION 37 E.G. MIDDLE MANAGERS, SAFETY ADVISORS, TRAINING OFFICERS; AND MAY EXTEND TO PEOPLE WORKING ON CONTRACT E.G. ARCHITECTS, CONSULTANTS OR A PLANNING SUPERVISOR.

Question 27

Section 37

Answer 27

37-OFFENCES COMMITTED BY THE BODY CORPORATE - OFFENCES BY BODIES CORPORATE

(1) Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, the preceding subsection shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

WHERE THERE HAS BEEN A BREACH OF LEGISLATION ON THE PART OF A BODY CORPORATE AND THE OFFENCE CAN BE PROOVED TO HAVE BEEN COMMITTED WITH THE CONSENT OR CONNIVANCE OF OR TO BE ATTRIBUTABLE TO ANY NEGLECT ON THE PART OF ANY DIRECTOR, MANAGER, SECRETATY OR SIMILAR OFFICER OF THEBODY CORPORATE, HE, AS WELL AS THE BODY CORPORATE, CAN BE FOUND GUILTY AND PUNISHED ACCORDINGLY.

Question 28

Section 40

Answer 28

40-ONUS OF PROOF - Onus of proving limits of what is practicable etc.

In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.

ONUS ON THE ACCUSED TO PROVE

Question 29

Section 47

Answer 29

47 Civil liability.

(1) Nothing in this Part shall be construed—

(a) as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty imposed by sections 2 to 7 or any contravention of section 8; or
(b) as affecting the extent (if any) to which breach of a duty imposed by any of the existing statutory provisions is actionable; or
(c) as affecting the operation of section 12 of the Nuclear Installations Act 1965 (right to compensation by virtue of certain provisions of that Act).

(2) Breach of a duty imposed by health and safety regulations . . . shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise.

(3) No provision made by virtue of section 15(6)(b) shall afford a defence in any civil proceedings, whether brought by virtue of subsection (2) above or not; but as regards any duty imposed as mentioned in subsection (2) above health and safety regulations . . . may provide for any defence specified in the regulations to be available in any action for breach of that duty.

(4) Subsections (1)(a) and (2) above are without prejudice to any right of action which exists apart from the provisions of this Act, and subsection (3) above is without prejudice to any defence which may be available apart from the provisions of the regulations there mentioned.

(5) Any term of an agreement which purports to exclude or restrict the operation of subsection (2) above, or any liability arising by virtue of that subsection shall be void, except in so far as health and safety regulations . . . provide otherwise.

(6) In this section “damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition).

Question 30

What are the 2 main enforcement agencies for H&S under HSWA in the UK?

Answer 30

1. The H&S Executive and
2. the local authoritires.

Question 31

Define an absolute duty.

Answer 31

Those which have to be complied with at all times and in all circumstances.
Whoever has the responbsibility of compliance has no choice about it.
The word SHALL is used to impose an absolute duty.

Question 32

Define a qualified duty.

Answer 32

Only have to be complied with under certain conditions

1) where practicable means where it is technically possible
2) where reasonably practicable means where the level of risk justifies the cost measured in time, trouble and money of reducing the risk.

Question 33

What should be in a Health & Safety Policy?

What are the key features of a H&S policy?

Answer 33

Think WHAT, WHO & HOW

• *Statement of Intent** - Details the overall aims of the organisation in terms of H&S performance and sets objectives and quantifiable targets. Signed by the person at the top of the organisation, dated towhich will set the revieww period
• *Organisational responsibilities** - outlines the chain of command for H&S mgmt, Roles and responsibilities - accountability, communication
• *Arrangements for implementation** - general arrangements to manage H&S and specific arrangements to deal with particular risks examples - Risk assessments, Training, Monitoring performance, SSOW, First aid, Welfare facilities,PPE

Specific H&S arrangements may include:

• lone working
• housekeeping
• noise exposure control
• vibration exposure control
• control of exposure to toxic materials
• fire safety and prevention
• control of contractors
• control of transport risks

Question 34

When should you review a H&S policy?

Answer 34

H&S policy should be subject to regular review, circumstances when a review might be required include:

• changes to key personnel
• changes to mgmt structure or organisation structure
• mgmt take-over
• changes to type of work, new technolofy or new processes are introduced
• change in buildings, workplace or worksite
• recommendation in a safety audit
• following enforcement action or as result of accident investigation
• request from a 3rd party
• change in legislation
• if consultation with employees highlights deficiencies

think MEEP