Unit A 2 Principles of Health and Safety Law Flashcards
Sources of Law
Common law:
Nature and development
Judicial precedent
Statute law:
European Directives and Regulations
UK Acts of Parliament and Regulations Prescriptive and goal-setting legislation
European Directives and Regulations
Directives:
Need to be adopted by member states
Regulations:
Directly applicable law of the EU
Absolute duties
Impose a strict duty: Shall Will Must Statute MHSWR: Regulation 3-Risk Assessment Case of interest: Summers v Frost (grinding wheel)
Practicable
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)
Reasonably Practicable
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)
European Commission
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
European Council
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
QMV
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.
European Parliament
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
Instruments in EU law
Treaties
Regulations
Directives
Decisions
Treaties - Article 95
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
Treaties - Article 137
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
Regulations
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
Directives
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
Decisions
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
Co-decision Procedure
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
Enforcing European law
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
The European Court of Justice
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
European Court of Justice - make up
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
Statute law
PRIMARY LEGISLATION
Acts of Parliament
Secondary or Delegated legislation:
Regulations
Orders
Rules and Bye-laws
Green Papers and White Papers
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
Law Making Process – Primary Legislation
3 readings either houses commons and lords, committee reading and amendments before approval and forward for Royal assent
Making Regulations
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
Functions , jurisdiction and powers of courts
Employment Tribunals Magistrates ' Courts County Courts High Court Crown Court Court of Appeal Courts in Scotland Supreme Court European Court of Justice
Judgements
Statement of relevant facts Review precedents Reasoning: Stare decis is - let the decision stand Ratio decidendi - binding part - authoritative Orbiter dicta-persuasivepart
Criminal Courts
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
Divisional (High) Court – Queen’s Bench Division
Appeals by way of case stated from Magistrates and Crown courts Appeals from Employment Tribunals
Chaired by Lord Chief Justice & 2 other judges
Civil Courts
County Court:
Judge presides
Contract law and Tort
Monetary limits - personal injury claims
Employment Tribunals
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
Employment Tribunals - Appeals
To EAT within 42 days
Points of law
Appeals agains t Notices go to Divis ional Court QBD
Court of Appeal
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
European Courts
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
Contracts – A Definition
An agreement between two parties which is intended to be legally binding – need not be in writing”
Contracts - Essential Elements
Offer/acceptance Intention
Consent Consideration Legality Possibility
Law of contract
Meaning of contract: Written Verbal Express Implied
Unfair Contract Terms Act 1977 (UCTA)
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
UCTA
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
Public Interes t (Disclosure) Act 1998
his tle Blowers ’
Remedies fordismissal/detrimentaltreatmentifdisclosure concerns:
Criminal Offences
Breaches of Law
Miscarriage of Justice Health & Safety Dangers Environmental Risk
Equality Act 2010 - Protected Characteritics
Age Disability Gender reas s ignment Marriage and civil partners hip Pregnancy and maternity Race Religion or belief Sex Sexual orientation
Equality Act 2010 - Terms of discrimination
Direct
Indirect
Harassment
Victimisation
Employment Rights Act (ERA) 1999
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
