Unit A 2 Principles of Health and Safety Law

Question 1

Sources of Law

Answer 1

Common law:
Nature and development
Judicial precedent

Statute law:
European Directives and Regulations
UK Acts of Parliament and Regulations Prescriptive and goal-setting legislation

Question 2

European Directives and Regulations

Answer 2

Directives:
Need to be adopted by member states
Regulations:
Directly applicable law of the EU

Question 3

Absolute duties

Answer 3

Impose a strict duty:
Shall
Will
Must
Statute MHSWR:
Regulation 3-Risk Assessment Case of interest:
Summers v Frost (grinding wheel)

Question 4

Practicable

Answer 4

Within current knowledge and invention Cost does not come in to it
Statute:
PUWER Regulation 11 Machinery Guarding Case of interest:
Marshall v Gotham (comparison of practicable and
reasonably practicable - mine roof collapse)

Question 5

Reasonably Practicable

Answer 5

Cost versus risk
Cost includes :
Time
Trouble
Financial
Statute
PUWER Regulation 11:
Machinery Guarding
Case of interest:
Edwards v NCB (quantum of risk - travelling road in mine gave way)

Question 6

European Commission

Answer 6

Created in 1974
Discussion forum between national Governments Fixes goals and sets the course for achieving them Formal status in the 1992 Treaty of Maastricht: Defined its function as ‘providing the impetus ’ General political guidelines for development

Question 7

European Council

Answer 7

On 1 December 2009, with the entry into force of the Treaty of Lisbon, it became one of the recognised
institutions of the Union
The European Council defines the general political direction and priorities of the European Union
The guiding mind

Question 8

QMV

Answer 8

Requires the following two conditions to be met:
A majority of Member States approve
A minimum of 255votes in favour (out of 345)
In addition, a Member State may as k for confirmation that the votes in favour represent at least 62% of the total population of the Union
If this is not the case, the decision will not be adopted.

Question 9

European Parliament

Answer 9

The only directly-elected body of the European Union
736 Members of the European Parliament Repres ent the electorate – the ‘heart’or ‘soul’
Elected once every five years
Joint power with the Council over the annual EU budget

Question 10

Instruments in EU law

Answer 10

Treaties
Regulations
Directives
Decisions

Question 11

Treaties - Article 95

Answer 11

Such as the Treaty of Rome 95
Made up by various Articles (may be amended by later Treaties ) Article 95now100 of the Treaty of Rome:
Remove barriers to trade
Ensure unrestricted movement and sale
Harmonised product standards
Example: Machinery Directive

Question 12

Treaties - Article 137

Answer 12

Article 137 now153 of the Treaty of Rome:
Concerned with setting minimum standards of H&S Harmonisation of workplace H&S standards Example: Framework Directive

Question 13

Regulations

Answer 13

Adopted by Council in conjunction with European Parliament or by the Commission alone
A general measure that is binding in all its parts
Unlike directives , which are addressed to the Member States
Unlike decisions , which are for specified recipients Address ed to everyone and are directly applicable Creates law - takes immediate effect in all Member States

Question 14

Directives

Answer 14

Adopted by Council in conjunction with European Parliament or by the Commission alone
Addressed to the Member States
Main purpose is to align national legislation
Allows choice of form and method adopted by national law Not universally applicable or binding

Question 15

Decisions

Answer 15

Adopted either by:
The Council
The Council in conjunction with European Parliament
Or by the Commission
The ins trument by which the Community gives a ruling on a particular matter
EU can require a Member State or citizen to take or refrain from taking a particular action

Question 16

Co-decision Procedure

Answer 16

Introduced by Maastricht Treaty in 1993
Aims to achieve cons ens us between Council and Parliament
Parliament does not merely give its opinion - it s hares legislative power equally with the Council
If Council and Parliament cannot agree on a piece of proposed legislation, it is put before a conciliation committee
Committee compos ed of equal numbers of Council and Parliament repres entatives
Laws usually adopted at the first or second reading

Question 17

Enforcing European law

Answer 17

Commission acts as ‘guardian of the Treaties ’
Together with the Court of Justice it is responsible for making sure EU law is properly applied in all the member states
First it launches a process called the ‘infringement procedure’
If this procedure fails the matter is referred to the Court of Justice
The Court has the power to impos e penalties
The Court’s judgments are binding on all member states

Question 18

The European Court of Justice

Answer 18

Composed of 27 Judges and eight Advocates
General Appointed by the governments of Member States for six years Judges elect one of themselves as President for three years
The President directs the work of the Court
Also presides at deliberations of the full Court or the Grand Chamber Advocates General as s is t the Court

Question 19

European Court of Justice - make up

Answer 19

May s i t as
A full court:
Cases of exceptional importance (e.g. to dismiss a Member of the European Commission)
A Grand Chamber of 13 Judges:
When a Member State so requests , and in particularly complex or important cases
In Chambers of three or five Judges:
Most cases are heard by Chambers of three or five Judges

Question 20

Statute law

Answer 20

PRIMARY LEGISLATION
Acts of Parliament

Secondary or Delegated legislation:
Regulations
Orders
Rules and Bye-laws

Question 21

Green Papers and White Papers

Answer 21

Green Paper is a consultation document:
Contains policy proposals for debate and discussion
Before a final decision is taken on the best policy option
Will often contain s everal alternative policy options .
Following this consultation the government will normally publish firmer recommendations in a White Paper

Question 22

Law Making Process – Primary Legislation

Answer 22

3 readings either houses commons and lords, committee reading and amendments before approval and forward for Royal assent

Question 23

Making Regulations

Answer 23

Laid before Parliament by the Minister
Do not require majority consent
Negative veto
Expand the basic requirements of an Act: S15 HASWA
Relevant to a specific area of H&S

Question 24

Functions , jurisdiction and powers of courts

Answer 24

Employment Tribunals 
Magistrates ' Courts 
County Courts
High Court
Crown Court
Court of Appeal
Courts in Scotland Supreme Court
European Court of Justice

Question 25

Judgements

Answer 25

Statement of relevant facts 
Review precedents
Reasoning:
Stare decis is - let the decision stand
Ratio decidendi - binding part - authoritative 
Orbiter dicta-persuasivepart

Question 26

Criminal Courts

Answer 26

Magistrates:
Justice of the Peace (JP) or Stipendiary
Summary offences
Triable either way offences - firs t ins tance
Defendant may elect for trial by jury Court may elevate to next court if too complex or serious

Crown:
Judge and jury
Indictable offences
Higher penalties
Will rule on status of possible appeal routes

Question 27

Divisional (High) Court – Queen’s Bench Division

Answer 27

Appeals by way of case stated from Magistrates and Crown courts Appeals from Employment Tribunals
Chaired by Lord Chief Justice & 2 other judges

Question 28

Civil Courts

Answer 28

County Court:
Judge presides
Contract law and Tort
Monetary limits - personal injury claims

Question 29

Employment Tribunals

Answer 29

Informal, cheap and quick Employment disputes
Chairperson + 2 others
Appeals against notices
Representatives time off for training Representatives pay
Medical suspension payments
Dismissal for breach of Health and Safety rules

Question 30

Employment Tribunals - Appeals

Answer 30

To EAT within 42 days
Points of law
Appeals agains t Notices go to Divis ional Court QBD

Question 31

Court of Appeal

Answer 31

Sits in London at the Royal Courts of Justice
Civil Division:
Hears appeals from:
High Court
The County Courts
Certain Tribunals including EAT Criminal Division:
Which hears appeals from The Crown Court

Question 32

European Courts

Answer 32

The Supreme Court must:
Give effect to directly applicable European Union law Interpret domestic law in line with EU law
Give effect to the European Convention on
Human Rights
Refers to the European Court of Jus tice (ECJ) in Luxembourg any ques tion of European Union law, where the ans wer is not clear and is neces s ary for it to give judgment
Must take account of any decision of the European Court of Human Rights in Strasbourg

Question 33

Contracts – A Definition

Answer 33

An agreement between two parties which is intended to be legally binding – need not be in writing”

Question 34

Contracts - Essential Elements

Answer 34

Offer/acceptance Intention

Consent Consideration Legality Possibility

Question 35

Law of contract

Answer 35

Meaning of contract:
Written 
Verbal 
Express 
Implied

Question 36

Unfair Contract Terms Act 1977 (UCTA)

Answer 36

Covers ‘trans actions between businesses ’
Places some restrictions onterms businesses canagree to:
Restricts vendors us ing exclusion clauses to limit liability
Excluding liability for death/injury is not permitted
Excluding liability for los s es caus ed by negligence is permitted only if itis reasonable
Excluding liability for defective or poor-quality goods is also permitted only if it is reasonable

Question 37

UCTA

Answer 37

The test of reasonableness -courts will usally take into account:
Information available to both parties
Whether the contract was negotiated or in standard form Whether the purchaser had power to negotiate better terms
A cons umer contract excluding liability for defective goods would be automatically invalid
As a business purchaser it’s up to you to check in advance what terms and conditions you’re agreeing to

Question 38

Public Interes t (Disclosure) Act 1998

Answer 38

his tle Blowers ’
Remedies fordismissal/detrimentaltreatmentifdisclosure concerns:
Criminal Offences
Breaches of Law
Miscarriage of Justice Health & Safety Dangers Environmental Risk

Question 39

Equality Act 2010 - Protected Characteritics

Answer 39

Age 
Disability
Gender reas s ignment Marriage and civil partners hip Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation

Question 40

Equality Act 2010 - Terms of discrimination

Answer 40

Direct
Indirect
Harassment
Victimisation

Question 41

Employment Rights Act (ERA) 1999

Answer 41

Fair & Unfair Dismissal: 
H&S dis mis s al & detriments
Dismissal in connection with TU's
Dismissal for asserting statutory rights
Unfair s election for redundancy
Transfer of business
Dismissal in connection with child birth or pregnancy Pressure on employer to dis mis s unfairly
Dismissal for making a protected dis closure