Health and Safety Law

Health and Safety law is very extensive. The basis of UK health and safety law is the Health and Safety at Work Act 1974. This sets out the general principles of health and safety compliance and is supplemented by various Regulations, some of which apply to all industries and some of which apply to specific industries, types of premises or specific health and safety issues.

Approved Codes of Practice (ACOPs) are published from time to time containing guidance, examples of good practice and explanations of the law.

The Health and Safety Commission (HSC) is the body responsible for health and safety policy and its executive arm, the Health and Safety Executive (HSE) is responsible for enforcement of health and safety law.In recent years the European Union has been influential in adopting health and safety measures which are implemented by member states, including, of course, the UK.

Health and safety law creates rights and obligations on employers and workers and protection extends beyond an employer's own employees to other workers and visitors the employer's premises.

The employer's duties are to ensure, "so far as is reasonably practicable" the health, safety and welfare of workers, including stress at work. This has to be done by carrying out a risk assessment , consulting safety representative and safety committees, providing information, instruction and training to workers and others who are in a contractual relationship. Compliance with some Regulations is absolute and not constrained by the "practicability" provision.

Failure by an employer to comply with health and safety law is an offence and may lead to prosecution by the HSE.

Workers who exercise their health and safety statutory rights are protected from detrimental action by their employer.

The following, non exhaustive list gives some examples of areas of work and matters which come within the scope of health and safety law:

· ventilation

· temperature

· lighting

· cleanliness and waste materials

· floor space

· seating

· sanitation

· washing facilities

· smoking

· visual Display Units (VDUs)

Workers have responsibilities and duties too and may be liable to prosecution as well if they interfere with anything provided in the interests of health and safety.

Rights and Responsibilities

What are the legal duties on my employer to ensure my health, safety and welfare at work?

All employers have a common law duty of care to their employees . In addition, under the Health and Safety at Work Act 1974 every employer has a duty to ensure that, so far as is reasonably practicable, the health, safety and welfare of employees are protected. They must also conduct a risk assessment to identify the measures necessary to comply with the Act and other Regulations.

The matters to which this duty extends include:

· plant and systems of work

· use, handling, storage and transportation of articles and substances

· provision of information, instruction, training and supervision necessary for the health and safety of employees

· maintenance of the place of work, including access and exit, in a safe condition

· provision and maintenance of a safe working environment with adequate facilities and welfare facilities

All employers employing five or more employees must have a written health and safety policy, which must be brought to the notice of all employees.

The Health and Safety at Work Act 1974 provides for the appointment of safety representative , (where there is a recognised trade union), or ' representatives of employee safety, (where there is no recognised union), and, where they request it, the setting up of a safety committee.

There is a further duty on the employer to ensure that the health and safety of persons other than employees who use the premises are protected.

What requirement is there for my employer to consult me and other employees on health and safety matters?

There are Regulations requiring employers to provide general information to employees and to consult representatives on health and safety matters.

Employers must display a poster or distribute leaflets giving general information about the requirements of health and safety law. Information must be provided on risks to which employees are exposed and the procedures to be taken in the event of danger.

Employers have the choice of consulting their employees either directly, that is individually, or collectively through safety representative . These will be trade union representatives, or for groups not covered by trade unions, other representatives.

The employer must provide the necessary information to enable the employees' safety representatives, or representatives of employee safety , to participate fully and effectively in the consultation . In the case of safety representatives, the information must also be sufficient to enable them to carry out their functions under the Regulations. These include:

· investigation of potential hazards and dangerous occurrences and examine the causes of accidents

· investigation of members' complaints

· making representations to the employer

· carrying out inspections at least every three months and after a notifiable accident, dangerous occurrence or after a notifiable disease has been contracted

· consulting and receiving information from HSE inspectors and other enforcement officers on behalf of members

· attending meetings of the safety committee

The employer must ensure that each safety representative is provided with reasonable training, in respect of that representative's functions under the Regulations, for which the employer must pay.

The employer must also allow each representative such time off with pay during working hours as is necessary to enable them to undergo such training or to perform their functions and must allow similar time off to a candidate for election as a representative in order to perform their functions as a candidate.

A representative or candidate has a right to complain to an employment tribunal if the employer fails to provide such paid time off.

What legal duties are placed on me as an employee in respect of health and safety?

You have a common law duty of care as an employee. This means that you must exercise reasonable skill and care in your relationship with your employer and colleagues.

In addition the Health and Safety at Work Act 1974 requires you to take reasonable care for the health and safety of yourself and other people at work. This extends to co-operating to enable the employer to fulfil a legal duty.

You must not interfere with or obstruct anything provided in the interests of health and safety at work.

An employee who is in breach of his or her duties under the Health and Safety at Work Act 1974 may be liable to pay a fine on conviction. He or she may also be dismissed from employment for being in breach of a contractual duty to carry out work with proper care and skill, provided the employee was properly instructed about the safety measures and had been made aware that the interference could lead to dismissal.

What rights do health and safety inspectors have to question me or my employer?

The Health and Safety Executive is the operational arm of the Health and Safety Commission and has the day to day responsibility for the enforcement of health and safety law.

HSE inspectors have the power to:

· enter premises

· inspect and investigate

· take measurements, samples and photographs

· require an area or machine to be left undisturbed

· seize, render harmless or destroy dangerous items

· obtain information and take statements

They also have the power to issue improvement and prohibition notices and can bring prosecutions against any person contravening a relevant statutory provision.

I have heard about a " duty of care " on my employer. What is it?

Both the employer and employee have a common law duty of care to each other and to other employees. This means exercising reasonable skill and care in the employment relationship.

In addition the Health and Safety at Work Act 1974 requires employers and employees to take reasonable care for the health and safety of everyone at work, including visitors and other non employees who use the premises.

A breach of this duty of care, by either the employer or the employee could result in a civil case, or a criminal prosecution by the HSE inspector through the appropriate enforcement procedure.

Workplace safety

How do Regulations (like 'six pack') and Codes of Practice work?

The Health and Safety at Work Act 1974 sets out the general principles and duties for the protection of the health and safety of employees. As it is written in general terms only, the more detailed specific requirements are to be found in various other Regulations and often an associated Approved Code of Practice (ACOP).

Regulations are approved by Parliament and have the force of law. The Management of Health and Safety at Work Regulations 1992, (Management Regulations), require employers to make risk assessment but leave them with considerable freedom on how to control risks. But some risks are so great that other Regulations are needed to ensure that specific action is taken to protect health and safety.

Some of these other Regulations apply to all employers, such as the Manual Handling Regulations and the Display Screen Equipment Regulations, others apply to specific businesses and premises, such as mining and nuclear power stations.

ACOPs offer practical advice and contain examples of good practice. Hey give advice on how to comply with the law. ACOPs do not have the same legal force as the Regulations themselves, but they are considered 'admissible evidence' in criminal proceedings for contravention of a provision for which an associated ACOP is in force. They often set out requirements in more detail than the Regulations themselves.

What are risk assessment and how are they used?

A central requirement of the Management of Health and Safety Regulations (Management Regulations) is the carrying out of a 'suitable and sufficient' risk assessment in order to determine what risks exist and what measures are needed to combat health and safety risks.

The risk assessment must be recorded where there are five or more people employed. The Approved Code of Practice (ACOP) states that, where appropriate, the document should be linked to other health and safety records or documents, such as the record of health and safety arrangements and the written health and safety policy statement.

The employer must appoint one or more 'competent persons' to assist in implementing measures to needed to combat risks. A competent person is someone who has sufficient training and experience or knowledge. Preference should be given to a competent person within the employer's organization over one from outside.

The employer must establish appropriate procedures to be followed in the event of serious and imminent danger and must nominate a sufficient number of competent persons to implement these procedures when necessary.

What should I do if I see something unsafe in the workplace?

As you have a duty of care to yourself and your work colleagues you should bring the matter to the attention of your employer and your safety representative.

Trade union safety representatives have the right to investigate potential hazards and dangerous occurrences at the workplace and to investigate complaints by any employees they represent.

Employees have the right not to be dismissed, selected for redundancy (when others in similar circumstances are not selected), or subject to any detrimental action short of dismissal for taking certain specified action on health and safety grounds.

Asserting the right of complaining about an unsafe situation at work would qualify for this type of protection.

We do not have a safety representative on this site. What should I do?

The Health and Safety at Work Act 1974 provides for the appointment of safety representatives, (where there is a recognised trade union), or 'representative of employee safety’ (where there is no recognised union), and, where they request it, the setting up of a safety committee.

If there is a union, you should meet to choose a safety rep and then inform the employer of your choice.

If there is no union, then you should approach your employer and ask for arrangements for the appointment or election of representatives to take place. However union backed safety reps will be more effective as they will be able to draw on the advice and help of their union.

What information and training about safety matters should I receive?

The Health and Safety Information for Employees (Modification and Repeals) Regulations require employers to provide general information to employees and to consult representatives on health and safety matters.

This information must be kept up to date and, where a poster is displayed, it must be in an accessible place and positioned so it can easily be read.

Representatives of employees must also be given information to enable them to carry out their functions.

HSE Inspectors must give information to representatives in respect of any action which they have taken or propose to take in connection with the employer's premises.

Employers have a duty to ensure that employees are provided with adequate health and safety training, during working time, when recruited or if they are exposed to new or increased risks.

The employer must ensure that each safety representative is provided with reasonable training in respect of that representative's functions, for which the employer must pay.

What should I do if my employer ignores an unsafe practice or situation which I have reported?

You should ask the safety committee or a safety representative to contact the HSE. The HSE inspectors have the power to:

· enter premises

· inspect and investigate

· take measurements, samples and photographs

· require an area or machine to be left undisturbed

· seize, render harmless or destroy dangerous items

· obtain information and take statements

They also have the power to issue improvement and prohibition notices and can bring prosecutions against any person contravening a relevant statutory provision.

Hazards At Work

How should hazardous substances be labelled and packaged?

The Control of Substances Hazardous to Health Regulations 1999, (the COSHH Regulations), cover almost every workplace, from offices to factories, where hazardous substances may be used or produced.

These Regulations also specify the duties of employers and workers and explain the law on labelling and packaging of hazardous substances Hazardous substances should be clearly labelled as such.

The advice given by the HSE is to read and obey the label. The label gives information, advice, precautions required and first aid instructions.

Follow the instructions, it's your first line of protection

I think I have been exposed to asbestos during my work. What should I do?

The HSE guidance states that any asbestos materials on site should have been identified before work. If you uncover any hidden materials or dust, which you suspect may contain asbestos, stop work immediately and get advice.

Inform your employer immediately and contact your safety representative.

The law requires your employer to provide special protective equipment, such as a face mask and clothing, special washing facilities and a safe disposal procedure.

The stripping out of asbestos insulation must, by law, be done by specialist contractors.

Are risk assessment needed for the use and control of hazardous substances?

The Control of Substances Hazardous to Health Regulations 1999 (the COSHH Regulations) cover almost every workplace, from offices to factories, where hazardous substances may be used or produced.

The Regulations state that an employer shall not carry on any work which is liable to expose employees or other persons on the premises to any substance hazardous to health unless an assessment of the risks to health and of the steps which need to be taken has been carried out.

I have heard about COSHH Regulations. What are they?

The Control of Substances Hazardous to Health Regulations 1999 (the COSHH Regulations) cover almost every workplace from offices, where hazardous substances such as solvents in correcting fluids and chemicals used in photocopier toner are used, to factories where any number of substances covered by the Regulations may be used or produced.

The Regulations require employers to conduct a risk assessment and stipulate what measures of control and maximum time of exposure is permitted for employees. They also require employers to monitor employees' health, use of hazardous substances and ensure training of employees.

These Regulations replaced earlier 1994 Regulations. They define substances hazardous to health as:

· substances classified as 'very toxic, 'toxic', 'harmful', 'corrosive' or 'irritant'

· substances with a maximum exposure limit

· substances for which the HSC has approved an occupational exposure standard

· micro-organisms arising from the work activity which create a hazard to health

· dust of any kind when present at a substantial concentration in the air

· substances which create a hazard comparable with that created by the categories of substance listed above

The Approved Code of Practice, (ACOP), stipulates the hierarchy of measures of prevention and control of exposure, as follows:

· elimination; or where this is not practicable

· substitution with a less hazardous substance, or the same substance in a less hazardous form

· control measures, e.g. local exhaust ventilation; and, if no other method of control is practicable

· by the provision of personal protective clothing

This Regulation requires that in all cases prevention or adequate control of exposure should be achieved by means other than personal protective clothing, so far as is reasonably practicable.

The Regulations also specify controls on certain fumigations, and require that exposure to carcinogens (cancer-causing substances) must be prevented or controlled by using alternative substances or processes and enclosed work systems, safe warning signs and least number of people exposed.

There are separate Regulations covering asbestos, lead and ionising radiations . The COSHH Regulations do, however, apply to some fumigations.

Accidents, Incidents and Injuries

I have been called in to an internal enquiry following an accident to a colleague. What should I do?

Employees have a common law duty of care which includes co-operating with the employer. In health and safety matters there is a statutory duty of care to yourself and work colleagues.

You must therefore co-operate and respond to the enquiry's request for any information you have.

The HSE Inspector wants to ask me questions about a recent 'near miss' incident. What should I do?

HSE inspectors have the power to:

· enter premises

· inspect and investigate

· take measurements, samples and photographs

· require an area or machine to be left undisturbed

· seize, render harmless or destroy dangerous items

· obtain information and take statements

You should therefore co-operate with the Inspector and provide any relevant information to him or her.

A recent panel of inquiry has recommended that disciplinary action be taken against me and others for endangering health and safety. What should I do?

As with any other disciplinary hearing you are entitled to know, in advance of the hearing, what you and your colleagues are being accused of and be given the opportunity to give your version of events.

You also have a statutory right to be accompanied by a union official or a work colleague.

If disciplinary action is taken as a result of the hearing you are entitled to appeal.

Under the Health and Safety at Work Act 1974 it is an offence for anyone to interfere with anything provided in the interests of health and safety at work. If it is found that you and your colleagues have endangered health and safety you may well be dismissed by your employer.

I am off work after a recent injury at work, but the company wants to question me about it? Can they do this?

If you suffer an injury at work you should report it to your line manager and the safety representative. If you are a union member you should tell them as well.

There could be several reasons why your employer might wish to interview you. There are certain injuries and work-related illnesses, which the employer must report to the HSE and there might be an HSE enquiry as a result. If that were the case you would have a duty to co-operate.

You might be eligible for industrial injury benefit or compensation from your employer, depending on the circumstances.

Whatever the circumstances it would be better involve your union, if you are a member and your safety representative.

I have heard that workplace stress is like an industrial injury. Is this true?

There have been a number of recent cases where employees have successfully pursued a civil case against their employer on the basis that the employer has breached the duty of care.

Some of these cases have been the result of excessive workloads. Stress can also result from working long hours. The Working Time Regulations were brought into effect after the European Union adopted a Directive as a health and safety measure. If the hours exceed the limits laid down in the Working Time Regulations the safety representative should be informed.

If stress is work-related, the safety representative, relevant trade union official, GP and employer should all be informed. A claim for industrial injury benefit might also be considered by the Department of Social Security.