Unit 2 Flashcards
What are the reasons for an employer to consider Health & Safety?
Moral, legal & financial
What are the 3 elements that must be satisfied to prove negligence?
A duty of care must be owed
There must be a breach of duty
A personal loss must have occurred as a direct result
Outline the defences against a TORT of negligence cilvil claim
3 proofs of negligence give rise to defences:
No duty of care was owed
The duty of care was not breached
No injury or loss as a direct result of the accident occurred
Outline OTHER defences against a TORT of negligence cilvil claim
VOLENTI NON FIT INJURIA- Willing participant
Contributory negligence
Facts of the case are disputed
Describe the term DUTY OF CARE
A duty of care is defined as:
Reasonable care must be taken to avoid acts or omissions which with reasonable foresight you would know would be likely to incur your neighbour
NEIGHBOUR PRINCIPLE
Outline Civil Law TORT OF NEGLIGENCE
&
To demonstrate negligence a claimant must show:
A TORT is a civil wrong
Negligence is defined as:
A failure to take reasonable care where a duty to do so existed
A claimant must show:
A duty of care existed
The duty of care was breached
Injury or loss was suffered as a direct result
Outline the court structure for England, Ireland & Wales
Criminal Civil
Supreme Court
Court of Appeal
Crown Court High Court
Magistrates Court County Court
Give examples of INDIRECT COSTS associated with an accident
Loss of staff from productive duties
Poor morale
Remedial actions/ compliance with enforcement notices
Recruitment, training, retraining, retraining labour
Loss of customer goodwill/ damaged reputation
Penalty clauses
Damaged industrial relations
Give examples of DIRECT COSTS associated with an accident
First aid Sick pay/ rehabilitation costs Repairs/ replacement to equipment/ buildings etc. Lost production time Overtime making up for lost time Fines in criminal courts Increased insurance premiums
What are the reasons for managing health & safety in the workplace?
Moral- Responsibility to others
Financial- Bad safety is expensive
Legal- Laws that require compliance
Define:
HEALTH
SAFEY
WELFARE
HEALTH- An absence of illness or disease (chronic or acute)
SAFETY- An absence of risk that may cause serious personal injury
WELFARE- Access to basic facilities, e.g. toilets, hand washing, food prep etc.
What are the PQA’s that an HSE inspector should possess?
Technical knowledge & skills
Professional qualifications in the field
Knowledge of relevant standards, laws, regs etc.
Knowledge of strengths & weakness of measures used to solve problems
Outline the barriers to good standards of health & safety in the workplace
Complexity of workplace
Conflicting demands- profitability
Behavioural issues/ safety culture
Outline the EMPLOYERS DUTIES under common law
All employers MUST provide:
Safe place of work with safe access/ egress
Safe plant & equipment
Safe systems of work
Safe, competent workers
Appropriate supervision, information, training & instruction
Describe STATUTE LAW
Statute law is made by PARLIAMENT- ACTS, REGS & ORDERS
HSWA = Enabling act (primary leg)
REGS= delegated law (secondary)
Never used for claiming compensation in civil court
State can prosecute under ACTS, REGS & ORDERS
Outline:
ACOP
Guidelines
ACOPS’s describe HOW to COMPLY with the requirements of an ACT, REGULATION or ORDER
Guidelines give practical information- Best practice
Outline:
ACOP
Guidelines
ACOPS’s describe HOW to COMPLY with the requirements of an ACT, REGULATION or ORDER
Guidelines give practical information- Best practice
Employers must demonstrate that they followed the ACOP/ guideline or a more robust process
Outline the difference between CIVIL & CRIMINAL law
CIVIL: Used for claiming compensation
Brought by an individual
Must be brought within 3 years of accident
Heard in county/ high court
CRIMINAL: Used to punish
Brought by the state to right a wrong against society
No specified time limit
Heard in magistrates/ crown court
Outline the options available to an EMPLOYMENT TRIBUNAL when considering an ENFORCEMENT NOTICE APPEAL
The employment tribunal may:
Cancel the notice
Affirm the notice
Affirm and modify the notice
Emphasis is place upon SIMPLICITY & SPEED- Prelim hearing may be had to try to resolve dispute before full hearing
Outline the main grounds for an appeal against an enforcement notice
Wrong interpretation of law by HS inspector
HSE have exceeded their powers
Breach of law is admitted but remedy or timescale is not practicable or reasonably practicable
IMPROVEMENT- SUSPENDS the notice
PROHIBITION- REMAINS in place
Describe:
PROHIBITION notice
PROHIBITION
HSE thinks that a serious risk of injury exists
States that activity MUST stop until fixed
No timescale specified
HSE do not need to see a breach of H+S law
Served on person in control of the activity- often the employer
Appeal must be made within 21 days
Describe:
IMPROVEMENT notice
IMPROVEMENT
HSE thinks that law is breached/ will be breached/ repeated
No risk of serious personal injury exists
States what must be done to achieve minimum legal requirement
Not less than 21 days for improvements to be made
May reference ACOP
Served on person in charge of work activity or who is in breach
Appeals must be made within 21 days
What additional power is afforded under Section 25 of the HSWA1974?
To seize & render harmless (by destruction if necessary) any article or substance that gives rise to imminent danger or serious personal injury
(links to REG 8+( MHSWR 1999 regs)
Give the powers that HSE inspectors have under the HSWA 1974
Enter premises at a reasonable time
Take police if belief they will be obstructed
Take technical assistance/ equipment
Carry out examinations/ investigations
Direct items/ premises to be left undisturbed
Take photos/ measurements
Take sample/ articles/ atmospheric tests
Dismantle & test items/ take possession of substances, articles they think dangerous
Take witness statements. Interviewees MUST sign as true record
Inspect document & record documents considered relevant
Have access to reasonable facilities to assist in conducting investigation
ANY OHER POWER DEEMED NECESSARY in discharging their duties
Outline REG.6 of the MHSWR 1999 regs
Give examples of methods to be used to comply
Health Surveillance
Audiometry testing
Lung function
Eye tests
Exposure limits
What are REG’s. 8+( of the MHSWR 1999 regs?
Outline the main points
Procedures for Serious & Imminent Danger & Contact with External Services
Employer must:
Develop procedures to be implemented
Nominate sufficient COMPETENT PERSONS (first aiders, fire Marshalls, response teams etc.)
Ensure necessary contacts with emergency services are arranged
Employees are prevented form entering dangerous areas
What is REG. 11 of the MHSWR regs
Outline the factors to be considered to comply with the regulations
Co operation & Co ordination where 2 or more employers share a workplace. Each employer MUST:
Co operate & co ordinate with other employer to ensure H+S of all persons
Inform the other employer of hazards & risks
Specific hazards
Security & site access
Site speed limits & traffic rules & standards
Maintenance of shared areas
Emergency procedures
First aid/ fire/ emergency arrangements
Heating, lighting, ventilation maintenance
What is REG. 13 of the MHSWR 1999?
Outline the key elements that must be observed to comply
Capabilities & Training
Employer MUST:
Take into account the capabilities of the employee when allocating tasks
Provide adequate H+S training when first recruited/ exposed to new/ increased risks
Refresh raining periodically during workplace hours
What are REG’s 12 & 15 of the MHSWR regs?
Outline the key elements to be considered to comply
Information for other workers
The employer MUST:
Provide other workers (who are not their employees, e.g. sub-contractors, partners, clients etc.) with information relating to the risks & control measures
Workers on TEMPORARY CONTRACT MUST be informed of Health surveillance
What is REG. 14 of the MHSWR 1999?
Explain the scope of the regulation & principle requirements
Employees duties
This expands upon the duties placed in the HSWA 1974
EMPLOYEES MUST:
Use equipment & materials in accordance with any instructions/ training given
Inform employer of any work situation that represent serious or imminent danger (links to regs 8+9) &/ or employers shortcomings in H+S
What are REG’s 16+18 of the MHSWR 1999?
What provisions must be made to comply
Protection of New & Expectant mothers
Employer MUST:
Make a risk assessment-Where risk cannot be avoided:
Alter work times/conditions to avoid risk
Suspend worker on full pay
Suspend worker if advised by medical Practioner
Does not have to take measures until notified in writing
What is REG. 19 of the MHSWR 1999?
Outline the key elements to be considered to comply
Young Workers <18 years Employer MUST: Ensure that young workers are protected Higher risk because: Lack of experience Poor risk perception Immature physically/ mentally
What is REG.10 of the MHSWR 1999?
Outline the key elements of the regulation
Information for employees The employer MUST: provide comprehensive & relevant information to employees on: RISKS to their H+S Protective/ control measures employed Emergency procedures
What is REG.3 of the MHSWR 1999?
Outline the 3 elements that must be observed
Risk assessment
Employe SHALL:
Make suitable & sufficient risk assessment of risk to employees/ no-employees
Record the assessment if more than 5 employees
Periodically review the risk assessment
What is REG.7 of the MHSWR 1999?
Describe the requirements of the regulation
Health & Safety Assistance
The employer MUST:
Appoint at least 1 or more COMPETENT persons to assist employer in complying with H+S law, e.g. first aiders/ fire Marshalls etc.
COMPETENT = sufficient knowledge, training, experience, skills, capabilities etc.
What is REG.5 of the MHSWR 1999?
Outline the principle concepts
Health & Safety Arrangements
The employer MUST:
Make effective arrangements for the planning, organisation, control, monitoring & review of preventative & protective control measures employed
Must record the arrangements where 5 or more employees
Define the word:
SHALL
PRACTICABLE
REASONABLY PRACTICABLE
SHALL: An absolute duty. No excuse exists for failure to comply
Practicable: Must be observed if within the technical means of knowledge &/ or invention to do so.
Reasonably practicable: Depends upon the SACRIFICE to comply balanced against the TIME, COST & EFFORT to do so. Example- Paper cuts
What is the scope of Section 2 of the HSWA 1974?
Section 2 (1) states?
General duties to employees
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.
What does Section 2 (2) of the HSWA 1974 state?
List sub sections 2 (2) (a-e)
Specific duties of the employer to employees
Provision & maintenance of safe plant & equipment & safe systems of work
Safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances
Information, instruction, training and supervision
Provision and maintenance of means of access to and egress
Working environment that is safe without risks to health, and adequate as regards facilities and arrangements for their welfare at work.
In the context of H+S why are employment tribunals important?
Employment tribunals her appeals against enforcement notices.
Hear cases where a safety representatives rights have been withheld
(Safety rep is appointed by a recognised trade union)
Describe the 2 types of compensation that may be awarded to a successful claimant
Compensation: Designed to return a worker back to conditions prior to an accident
Special damages: Designed to cover loss of earnings up to trail date, travel expenses to hospital etc. MUST BE PROVEN BY THE CLAIMANT!
