Health and Safety

by Pete Fisher

Health and safety law

The Health and Safety at Work etc Act 1974

The Health and Safety at Work etc. Act 1974 (HSWA), is the primary legislation covering occupational health and safety in the United Kingdom. There are numerous regulations covering specific work activities, but not all apply to every business.

The act states that if an employer has five or more employees there must be a documented Health and Safety Policy. For small companies employing less than five employees, or for self-employed persons, the general duties of the act still apply, but there is no requirement to have a written version of the policy.

Many of the requirements of the act are prefixed with the phrase ‘so far as is reasonably practicable’. This term is taken to mean that the degree of risk of injury can be balanced against the time, trouble, cost and physical difficulty of taking measures to avoid the risk. If the work involved in implementing such controls is so disproportionate to the risk that it would be unreasonable to expect an employer to introduce them, then the employer is not obliged to do so.

To put it another way: the greater the risk, the more reasonable it is to go to very substantial expense, trouble and invention to reduce it. However, if the consequences and extent of a risk are small, it would not be considered reasonable to go to great expense. It is important to remember that the judgement is an objective one and should be made before any incident has occurred.

If a particular requirement of the act is prefixed by ‘shall’, that particular requirement must be met, regardless of cost or effort.

The Management of Health and Safety at Work Regulations 1999

The Management of Health and Safety at Work Regulations 1999 (MHSW) implement most of the European Framework Directive relating to the health and safety of employed persons. They effectively extend the employer’s general duties under HASAW by requiring additional actions and controls.

One of the key duties these regulations place upon management is the requirement to make a ‘suitable and sufficient’ risk assessment of the health and safety risks to employees and others as a result of work activities. This will be covered in more depth under Managing health and safety.

In particular, the regulations also cover

  • The appointment of competent persons to assist the employer in complying with health and safety legislation
  • Establishing procedures to be followed in the event of serious and imminent danger.
  • Providing relevant and easily-understood health and safety information
  • The sharing of information where two or more employers occupy a premises
  • Health and safety training.

Other regulations

As mentioned previously, there are numerous other sets of regulations, made under HASAW, that are specific to certain work activities: for example, The Manual Handling Operations Regulations 1992 or The Electricity at Work Regulations 1989. Depending on the nature of the work being undertaken, these may or may not be directly applicable to your business.

Invariably there is some overlap between the general duties of MHSW and the more specific regulations; the legal requirement is to comply with both in terms of risk assessment and the management of risk. However, by complying with the more specific regulations the employer will, in most circumstances, satisfy the general duty.

The Health and Safety Commission publishes guidance and practical advice with each set of regulations, usually in the format listed below.

Approved Code of Practice

A code of this type has special legal status; if you do not follow the relevant provisions of the code you must show that you have complied in some other, equally as good, way.

Guidance

Following the guidance is not compulsory and other actions may be taken; however, if the guidance is followed, it will usually ensure compliance with the regulations.

Leaflets and publications

These provide a summary and interpretation of regulations and, in some cases, more detailed guidance on complying with specific aspects, but they hold no legal status.

Enforcement officers

The Health and Safety Executive (HSE) is the enforcement body in relation to health and safety and the powers of inspectors are contained in HASAW. These powers have been delegated to Local Authorities’ Environmental Health Departments for lower-risk areas, such as office and retail premises.

An inspector will hold a warrant card proving his or her identity, but you should note that they have the right to

  • Gain access without a warrant to any place of work
  • Take equipment or materials onto premises to assist with an investigation
  • Carry out any examination or investigation as they see fit and in doing so direct that locations remain undisturbed
  • Take articles away for examination
  • Take statements and so on.

If an inspector discovers a contravention, they may issue one or other of the notices explained below.

Prohibition Notice

This prohibits the work as detailed in the notice until the required steps have been taken to remedy the situation.

Improvement Notice

This will specify a time period for remedial action to be taken that will rectify the contravention.

Penalties

HASAW is an act of parliament and any breaches will be dealt with in the Magistrates’ or Crown Courts.

For breaches of the general duties of HASAW (Sections 2-6) the maximum penalty in the magistrates’ court is an unlimited fine or imprisonment for a term not exceeding 6 months or both. In the Crown Court, the maximum penalty is an unlimited fine or imprisonment not exceeding two years or both.

New sentencing guidelines for health and safety and corporate manslaughter prosecutions came into force on 1 February 2016, under the new guidelines fines will be calculated in a staged process having regard to the level of harm, culpability and an organisation’s turnover.

An organisation's turnover will be the starting point for the level of fine and for the most serious health and safety offences, fines of up to £10 million are envisaged for large organisations (those with a turnover greater than £50 million), up to £4 million for medium-sized organisations (turnover between £10 million and £50 million), up to £1.6 million for small organisations (£2 million to £10 million) and up to £450,000 for micro-businesses (less than £2 million). For corporate manslaughter the penalty for a large organisation may be up to £20 million.

The courts are able to adjust the level of fine after taking into consideration any aggravating factors, such as relevant past convictions, cost cutting at the expense of safety and a poor health and safety record, along with any mitigating factors, such as high level of co-operation with the investigation, self-reporting and acceptance of responsibility.