Employers risk huge fines and even imprisonment if they fail to implement the correct health and safety duties, however the effective enforcement of this law has recently been questioned. Charles Price explains.
An employer's duties
The Health and Safety at Work etc Act 1974 (HSWA 1974) sets out the basic health and safety duties of a company, its directors, managers and employees. It also acts as the framework for other health and safety regulations, including the Management of Health and Safety at Work Regulations 1999 (the regulations). The range of legal obligations placed on employers with respect to health and safety is extensive. The particular obligations which apply in any given case will depend on the activities carried out by the company, the extent of the risks posed by these activities and other factors such as the number of employees. The main obligations imposed by the HWSA 1974 and the regulations include the following:
- Employers are responsible for ensuring the health and safety of their employees and those that are affected by their activities so far as reasonably practicable (sections 2 and 3, HSWA 1974)
- An employer must assess and review the work-related risks faced by its employees and by others affected by the company's activities. This risk assessment must be "sufficient and suitable" (regulation 3, the regulations)
- An employer must make and give effect to appropriate arrangements for the effective planning, organisation, control, monitoring and review of the preventive and protective measures (regulation 5, the regulations)
- An employer must audit the adequacy of these procedures (regulation 3, the regulations)
- One or more competent persons must be appointed to implement the measures needed to comply with health and safety law (regulation 7, the regulations)
- An employer must provide its employees with understandable and relevant information and training on the risks they face and the preventive and protective measures to control those risks (regulations 10 and 13 of the Regulations and the Health and Safety (Consultation with Employees) Regulations 1996)
Employers with over five employees must also:
- Produce a written health and safety policy
- Describe the arrangements for putting the policy into practice
- Bring the policy and any revision of it to the attention of employees
- Revise the policy whenever appropriate (section 2 and section 3, HSWA 1974; regulation 2, Employers' Health and Safety Policy Statements (Exception) Regulations 1975)
- Record appropriate arrangements for the effective planning, organisation, control, monitoring and review of the preventive and protective measures (regulation 5, the regulations)
- Record the significant findings of risk assessments and any group of employees identified by it as especially at risk (regulation 3, the regulations)
I know from talking to personal injury barristers that the strict Health and Safety laws we have in this country mean less work for the lawyers when it comes to deaths and personal injury claims. Further, it makes sense that a safe workforce is happier and thus more productive. Clearly, however, such a system requires an effective enforcement policy.
The effective enforcement of health and safety legislation has been questioned by Hazards magazine, which suggests employees lives are at risk by government cut backs. It reports that, after the weak strategy launched by the Health and Safety Executive (HSE) in 2004, (which aimed to persuade rather than punish errant employers), its January 2009 rethink 'The Health and Safety of Great Britain – Be Part of the Solution' sends out a more robust message. The report notes that: "The process of health and safety improvement began in 1974 and continued unabated until around 2003. Since then it has stalled." The strategy identifies the cause as plummeting prosecutions, convictions and notices, mirroring HSE’s year-on-year loss of frontline enforcement staff. Last year it had over 16% fewer frontline inspectors than in 2004. Hazard magazine last month condemned the loss of inspectors: "The new strategy proposals are a great improvement, and the deregulatory, soft-touch tone of its predecessor has all but gone. It sets a better context for making work safer and healthier….But HSE is still hobbled by too few bodies and too little cash. The April 2008 Regulators' Compliance Code means HSE, like other regulators, has to take a softer line whatever its new strategy says." Despite the moans and groans of those employers who bemoan the health and safety red tape, it is clear that a safer working environment is better for everyone including those with an eye on company profits. Not only are the prescribed fines for breach a real deterrent, but employees can pursue a claim in a tribunal if they think that their employer has not provided them with a safe place of work. Whether or not there is a reduced number of inspectors enforcing the rules, recalcitrant employers are vulnerable in constructive dismissal claims for breach of the fundamental breach of contract mentioned above. Employers should check with their insurance providers if they are worried about whether they comply with health and safety legislation. Charles Price is a barrister at No5 Chambers. Click here for more information
Charles Price is a barrister and runs www.charlesprice.net and www.lawnewsuk.co.uk which contains a blog on UK employment law and regular news.
Charles has enjoyed stints as the employment lawyer at Bristol and Sheffield City Councils and now works as a barrister at No5 Chambers.
An expert in employment law Charles has been instructed in cases of sex, race and disability discrimination. He has extensive experience in unfair dismissal, redundancy, contracts of employment, pregnancy related dismissal, constructive dismissal, minimum wage claims, compromise agreements, post termination covenants, holiday pay disputes, parental leave, deductions from wages, variation of contractual terms, whistleblowing, business transfers, harassment and breach of contract claims.
As well as advocacy work, Charles has considerable experience of advisory and drafting work, preparing pleadings for the County Court, Employment Tribunals and The Employment Appeals Tribunal. Charles has acted as a disciplinary officer in various tribunals and has appeared in the Employment Appeals Tribunal.