HSWA Flashcards
Facts ref H&S legislation before HSWA
first legislation in 1833
four inspectors for whole of UK
reaction to Industrial Revolution - mining, manufacturing, new machines, child labour
Facts about early H&S legislation
selective
prescriptive
hardware based
difficult to interpret
Robens committee
1970 - 72
Task of Robens committee
review the provision made for H&S in relation to work
consider if changes needed in scope or nature of enactments
the nature and extent of voluntary action in relation to enactments
any further steps needed to safeguard public
Robens conclusions
needed radical overhaul
outdated, duplicated laws
too much law
should be simplified
needed to move more to goal setting rather than prescriptive - say what needs to be achieved, not how to achieve it
prescriptive where appropriate, e.g. HSE licensing (Ionising Radiation Regs 2017)
framework law supported by regs, ACOPs
guidance to assist interpretation & complinace
form an H&S inspectorate
Robens outcomes
replace existing law with one enabling act
apply to all at work and others who may be affected
create HSC and HSE
replace details with basic principles of general application
more emphasis on software - ssws, training, supervision
new methods of enforcement, not just prosecution
Pre 1974 legislation
Factories Act 1961
Offices Shops & Railway Premises ACt 1963
Other acts
Section 2(1)
ensure so far as is reasonably practicable the health safety and welfare at work of all employees
Section 2(2) a
provide and maintain plant & systems that are so far as reasonably practicable without risks to H&S
Section 2(2)b
have arrangements sfarp for ensuring safety and absence of risks to health in connection with the ujse, handling, storage and transportation of articles & substances
Section 2(2)C
provide such information instruction & training and supervision as is necessary sfarp to ensure the H&S and welfare at work of employees
Section 2(2)d
sfarp maintain place of work in a condition that is afe and without risks to H&S
provide and maintain safe access & egress
Section 2(2)E
provide and maintain a working environ that is sfarp without risks to health and adequate as regards facilities and arrangements for employee welfare at work
section 2(3)
prepare written general H&S policy
organisation & arrangements for carrying out the policy
revise when appropriate
bring statement and any revision to notice of employees
when to revise H&S policy
regular intervals
accident
significant change - in process, equipment, personnel
section 2(4)
appointment of safety reps from trade unions
section 2(5)
election of safety reps
section 2(6)
requirement to consult with trade union safety reps
section 2(7)
establish a safety committee if requested by trade union safety reps
section 3(1)
duty to conduct undertaking in a way to ensure sfarp that persons not in his employment who may be affected by his work are not exposed to risks to their H&S
Case law ref section 2(c) and 3(1)
R v Swan Hunter 1982
Fire on HMS Glasgow when contractors failed to disconnect hose from oxygen supply at end of shift
8 killed, 2 firemen in hospital
No training given ref oxygen enrichment to contractor, had been given to employees
guilty under 2(2) - endangering employees by not providing info to contractor
reasonably practicable to inform contractor
Case law ref 3(1)
R v Associated OctEL 1996
chemical plant closed for maintenance
repair of tank lining done by contractors
acetone vapour ignited when bulb of lamp shattered
Octel guilty under section 3(1)
Section 3(2)
self employed to look after himself and others who may be affected by his work sfarp
Section 3(3)
provide information on risks from employers undertaking to others who may be affected
e.g. neighbours
Section 4
persons in control of premises
ensure safety of people who work in the premises
ensure safer access & egress
ensure plant or substances in the premises or provided for use are safe
Section 5
control of harmful emissions into the atmosphere
use best practicable means to prevent noxious or offensive substances being emitted into the air
render such substances harmless
Section 6
designers, manufacturers, importers, suppliers
ensure that articles sfarp are designed and constructed so as to be safe when being set, cleaned, used and maintained by a person at work
must be tested and info provided
Section 7
duties of employees
take reasonable care for the health and safety of himself and others who may be affected by his acts or omissions
cooperate with employer to enable him to meet his statutory obligations
Section 8
no person shall intentionally or recklessly interfere with or misuse anything provided in the interests of H&S and welfare
have to prove intent (guilty mend = mens rea)
Section 9
no employer shall levy any charge in respect of anything done or provided in pursuance of any specific requirement of the statutory provisions
Section 15
power to make regulations
proposal submitted by HSE after consultation with anyone affected (unions, CBI, trade assocs)
power to make, repeal or modify
Section 16
hse power to approve and issue ACOPs giving guidance on how to comply
HSE approved but HSE must consult first and requires consent of minister
quasi legal status of ACOPs - defendant to show complied with or did something equal or better
HSE must give written notice to approve, revise or withdraw
Section 18
enforcement
local authority = shops, offices, catering, entertainment
HSE - all other areas, e.g. factories, quarries, mines, construction sites
Section 19
Inspector appointment
inspector issued a warrant which specifies the powers they have been given
Section 20
Powers of inspectors enter premises with or without warrant investigate leave premises / areas undisturbed take measurements, photos, samples, tests inspect / take copies of documents confiscate or dismantle interview anyone take written statements may be under caution facilities must be provided for the HSE inspector
Section 21
improvement notices
where H&S legislation is breached and will continue
inspector’s opinion
must specify what has been breached and why
may state what action is needed
Section 22
prohibition notices risk of serious personal injury stops the work activity can be immediate or deferred doesn't have to be breach of law, but must say so if there has been must state what gives rise to the risk
Section 24
right to appeal against a notice to employment tribunal
appeal within 21 days
improvement notice suspended
prohibition notice stays in place
Section 33
offences, penalties, prosecution
summary or indictment
fines
imprisonment
Health & Safety offences Act 2009
designed to provide more deterrent
penalties did not reflect gain from failing to comply
magistrates - unlimited fine, 12 mths prison
crown court - unlimited fine, 2 yrs prison
sections 2,3,4,6,7,37
Implications of Health & Safety offences Act 2009 for directors
prison even if no death
may be reluctant to take on H&S responsibility, be H&S champions
Section 36
offences due to fault of other person
if person A commits offence because of person B
person B guilty (section 7) even if person A not prosecuted
first person may be corporate body, contractor, health and safety consultant and 2nd person an employee
Section 37
if offence committed with consent / connivance of director, manager, secretary or other officer, then they can be prosecuted
Case law ref Section 37
R v Port of Tilbury 2007
child fell from forklift
unclamped reel of paper fell off
prosecution claimed it was common practice
MD prosecuted as he had ultimate responsibility
crown court said needed specific knowledge
court of appeal - MD was guilty if he knew the facts or he ought to have known
Section 39
HSE inspector may prosecute at a magistrates court
Section 40
onus of proving limits of what’s practicable
accused to prove why not practicable / reasonably practicable, or that there was no better practicable means
Section 47
no right to civil action under section 2-8 if there’s been a successful prosecution
exception = pregnant workers so that pregnant workers directive implemented = right of pregnant worker to enforce their rights
Case law - section 36
R v Hooper 2004
Hooper safety consultant
wood working company got him to do risk assessments
did these poorly
as a result accident happened where worker lost part of finger
wood working company in breach because no suitable & sufficient RA due to Hooper.
Hooper also prosecuted
Section 28
HSE inspectors required to provide info to employees
Section 23
enforcement notice can be withdrawn or extended by inspector
