ND Unit A - Element A8: Principles of Health and Safety Law Flashcards
- What is meant by the ratio decidendi in a law judgment?
This terms translates to ‘the reason for the decision” and is the statement the judge will say in a case when charging the defendant. This contains the actual binding precendent
- What are the differences between criminal law and civil law?
Criminal law is when a crime is committed against the state and therefore liable to prison sentence or a fine.
Civil law is when an individual, person or company, is making a claim against another individual, person or company, to resolve an issue.
- What standard of proof must be achieved by (a) the prosecution in a criminal case, and (b) the claimant in a civil case?
The prosecution in a criminal case must prove beyond any reasonable doubt that the accused is guilty. This does not mean without any shadow of doubt.
The prosecution in a civil case must prove the accused guilty in the balance of probabilities. Meaning the evidence offered must sway the balance over 50% in favour.
- Explain the meaning of the terms “absolute”,“practicable” and “reasonably practicable” as used in health and safety legislation.
With reference to criminal law the term “absolute” refers to something a company ‘shall’ do and have no option to avoid this, at any cost. For example a car manufacturer “shall” fit safety seat belts to all vehicles
The term “practicable” means that if it’s feasible to comply, irrespective of cost, then it should be done
The term “reasonably practicable” means that if it is technically possible then it should be done. A risk versus cost analysis can be completed to evaluate if this action is reasonably practicable. If the reduction in risk significant at a small cost then it should be done. If the reduction in risk is insignificant at a high cost then that can be deemed not “reasonable practicable”.
- Outline the possible role of the European Court of Justice in a case between a member state and a citizen of that member state.
The role of the European Court of Justice in a case between a member state and a citizen of that member state is to ensure that EU law is interpreted and applied the same way in each member state. The ECJ has the power to settle disputes between EU institutions, member states, individuals, etc
The ECJ mainly deals with the interpretation or application of EU legal instruments (treaties, regulations, etc.) as they affect individual rights. The ECJ acts as a court of appeal on points of law from the Court of First Instance.
- With respect to European Community law, distinguish between Regulations, Directives and Decisions.
With respect to European Community law the differences between Regulations, Directives and Decisions. Regulations apply directly to the intended target (normally member states). There is no requirement to assimilate them into national laws;
Directives are binding on member states with respect to the objectives to be achieved, but the method for achieving this is left open. Framework Directives lay down general objectives and Daughter Directives specify how these results can be obtained.
Directives are normally implemented by modifying existing laws or introducing new laws in each member state. They must be implemented by a defined date given in the directive. For example, the Management of Health and Safety at Work Regulations were implemented in UK national law as a result of the 1989 Framework Directive.
Decisions are specific in their application and are binding in their entirety upon those that they address, e.g. Commission Decision 2007/53/ EC was addressed specifically to Microsoft Corporation.
- What is the difference between a Green Paper and a White Paper (apart from the colour!)?
A green paper A Green Paper is a statement of government intent. It is printed on green paper and is different from a White Paper because its contents are of a more tentative nature and its object is to seek opinion and feedback on proposals rather than to announce firm policy.
It is circulated to interested bodies such as the CBI (Confederation of British Industry) and TUC (Trades Union Congress) to sound out public opinion and reaction while official policy is still not fully formed.
A government White Paper is a statement of government policy presented to Parliament, indicating the broad lines of the legislation the government intends to introduce. Printed on white paper, its contents provide the factual basis for parliamentary debate. It allows the Opposition the opportunity to study the proposals and to express their views. White Papers are on sale to the general public.
- How do regulations made in the UK differ from Acts of Parliament?
Regulations are a form of delegated legislation and, with regard to health and safety, are created by the Secretary of State for Work and Pensions. Health and safety regulations are created under the Health and Safety at Work, etc. Act 1974.
Acts of Parliament involve the House of Commons, House of Lords and the Monarch. Acts of parliament involve the application of green and white papers submitted and considered prior to the application of a Bill. The application of a Bill involves a number of readings via various parties and committees before ultimately becoming a legal document.
- Which division of the High Court deals with personal injury cases?
It is the Queens Bench division of the High Court that deals with personal injury cases
- Most health and safety offences are said to be “triable either way”. What does this mean?
With regards health and safety offences that are said to be ‘triable either way’ the defendant can elect for either trial in a Magistrates’ Court or by ‘judge and jury’ in a Crown Court
- What health and safety issues does an Employment Tribunal decide?
Employment tribunals are basically for dispute resolution between employer and employee. They have the power to hear and adjudicate on matters relating to sex discrimination, race relations, trade unions, equal pay, employment protection, industrial relations issues and certain areas of health and safety.
With regard to health and safety, employment tribunals have authority in the following main areas:
- Time off for the training of safety representatives.
- Failure to pay a safety representative for time off for carrying out his/her functions and training.
- Failure of an employer to make a medical suspension payment.
- Dismissal, actual or constructive, following a breach of health and safety law and/or a term of an employment contract.
- Appeals against Improvement and Prohibition Notices.
- What is a contract and what are the essential elements of a valid contract?
A contract involves two or more parties making an agreement, which may have legal consequences. The essential elements of a valid contract are agreement, consideration, legal arrangements, legal capacity and no illegal circumstances.
What is ‘unfair dismissal’ and what are the remedies for unfair dismissal?
The concept of ‘unfair dismissal’ can affect many cases in which no question arises as to whether or not the employee’s rights to notice have been honoured. Unfair dismissal is concerned with whether or not the decision to dismiss can be justified by the reasons given for the decision, and the manner in which the dismissal is handled.
The remedies for unfair dismissal are: reinstatement, re-engagement or compensation.
Under what legislation is an employee protected from victimisation for having brought to his or her employer’s attention problems connected with his/her work that the employee reasonably believes to be harmful or potentially harmful to health and safety?
The Public Interest Disclosure Act 1998.
