Health & Safety An employers responsibilities Laura McMillan, - - PowerPoint PPT Presentation

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Health & Safety – An employer’s responsibilities

Laura McMillan, Brodies 8 May 2018

Health & Safety Responsibilities

Leading health and safety at work

• “Failure to include health and safety as a key business risk in

board decisions can have catastrophic results. Many high profile safety cases over the years have been rooted in failures of leadership.”

• “Health and safety law places duties on organisations and

employers, and directors can be personally liable when these duties are breached: members of the board have both collective and individual responsibility for health and safety.”

• Essential principles:
• Strong and active leadership from the top
• Worker involvement
• Assessment and review

Health &Safety at Work Act 1974

The Management

• f Health and

Safety at Work Regulations 1999 The Workplace (Health, Safety and Welfare) Regulations 1992 The Health and Safety (Display Screen Equipment) Regulations 1992 The Personal Protective Equipment at Work Regulations 1992 The Manual Handling Operations Regulations 1992 The Provision and Use of Work Equipment Regulations 1998 Work at Height Regulations 2005 Lifting Operations and Lifting Equipment Regulations 1998

Question 1: If an organisation is guilty of committing an offence under the 1974 Act can an individual be found guilty of that offence as well?

The Health & Safety at Work Act 1974

HSWA 1974 Key duties of an employer…

S 2 (employer) Ensure (SFARP) safety of employees (maintain equipment, training, written H&S policy, consultation) S 3 (employer) Ensure (SFARP) safety of public affected by operations S 4 (employer) Ensure (SFARP) that the premises are safe and without risk to health to persons using the premises other than employees. S 7 (employee) Take reasonable care for the health and safety of himself and other persons who may be affected by his acts or omissions at work and cooperate with employer S 37 Where offence committed with the consent or connivance of, or to have been attributable to neglect on the part of, any director, manager, secretary or other similar officer, he as well as the body corporate shall be guilty of that offence.

The Management of Health and Safety at Work Regulations 1999

• Main employer duties under the Regulations include:

– making 'assessments of risk' to the health and safety of its workforce, and to act upon risks they identify, so as to reduce them (Regulation 3); – appointing competent persons to oversee workplace health and safety; – providing workers with information and training on

• ccupational health and safety; and

– operating a written health and safety policy.

The Workplace (Health, Safety and Welfare) Regulations 1992

• The main provisions of these Regulations require

employers to provide: – adequate lighting, heating, ventilation and workspace (and keep them in a clean condition); – staff facilities, including toilets, washing facilities and refreshment; and – safe passageways, i.e. to prevent slipping and tripping hazards.

The Manual Handling Operations Regulations 1992

• The main provisions of these Regulations require

employers to: – avoid (so far as is reasonably practicable) the need for employees to undertake any manual handling activities involving risk of injury; – make assessments of manual handling risks, and try to reduce the risk of injury. The assessment should consider the task, the load and the individual's personal characteristics (physical strength, etc.); and – provide workers with information on the load.

The Provision and Use of Work Equipment Regulations 1998

• The main provisions require employers to:

– ensure the safety and suitability of work equipment for the purpose for which it is provided; – properly maintain the equipment, irrespective of how

• ld it is;

– provide information, instruction and training on the use of equipment; and – protect employees from dangerous parts of machinery.

The Work at Height Regulations 2005

• The purpose of regulations is to prevent death and injury

caused by a fall from height.

• Employers and those in control of any work at height

activity must make sure work;

• is properly planned,
• supervised; and
• carried out by competent people.
• This includes using the right type of equipment for

working at height. Low-risk, relatively straightforward tasks will require less effort when it comes to planning.

Other Legislation to be aware of:

• The Reporting of Injuries, Diseases and Dangerous

Occurrences Regulations 2013

• Fire (Scotland) Act 2005
• Corporate Manslaughter & Corporate Homicide Act 2007

… and remember ACOPs and HSE Guidance

• Question 2:
• Can an injured person sue your
• rganisation for damages as a result of a

breach of these regulations or the HSWA?

The Corporate Manslaughter and Corporate Homicide Act 2007

• An organisation will be guilty of corporate

manslaughter/homicide if the way in which its activities are managed or organised caused a person’s death and amount to a gross breach of a relevant duty of care owed by the organisation to the deceased.

• An organisation can be convicted if it is proven there has

been a gross breach of care by senior management.

• The offence does not apply to individuals.

• Question 3:
• Has a company or organisation yet been

prosecuted for corporate homicide under the Corporate Manslaughter and Corporate Homicide Act 2007?

Breach Accused Penalty

Section 7 HSWA Employee Unlimited fine and/or up to 2 years imprisonment Section 37 HSWA Director or Manager Unlimited fine and/or up to 2 year imprisonment and/or director disqualification Section 2-6 HSWA Company Unlimited fine CMCHA Company Unlimited fine/Publicity

• rder

Culpable homicide Individual Imprisonment

Criminal penalties

Common Law Duties - Negligence

• Duty to take reasonable care for health, safety and

wellbeing of employees (and non-employees) - relevant to civil claims for damages by injured person/their family

• Enterprise and Regulatory Reform Act 2013 (exclusion –

expectant and new mothers) – no civil liability for accidents BUT health & safety legislation continues to influence courts when determining whether an organisation has been negligent.

• Key question – was incident reasonably foreseeable?

Question 4:

• Can an organisation or individual be found

liable for the negligent acts of non- employees?

Common Law Duties – Negligence

• Vicarious Liability

– Fundamental principle in recent cases is “the

• rganisation who benefits from the services being

provided should bear the cost of harm which is wrongfully caused” – Two stage test for determining vicarious liability:

• considering relationship between defender and

wrongdoer (five key characteristics)

• is the act of the wrongdoer so closely connected

with the field of activities trusted to them by the defender to justify the imposition of vicarious liability?

PROACTIVE – Be SUBLIME at management level

• Set H&S objectives - and make sure they are implemented
• Understand the main health & safety risks faced by the business
• Be sure the health & safety policy is fit for purpose and review it
• Lead by example to show the organisation’s commitment to H&S
• Include H&S on the agenda
• Maintain a “paper trail”
• Engage with employees, with regulators, with advisors

INCIDENT

Damages Claim Regulator involved Improv/t Notice Prohib/n notice Enforc/t Notice appeal HSE FFI invoice Criminal charges FAI Media interest HR issues Internal H&S review

Question 5:

• Can there be an FAI and a H&S

prosecution from the same incident?

REACTIVE – Incident Management

• Accident/Near miss protocol
• Ensure each person knows their role
• Investigation
• “privileged” documents
• Regulator and insurer notification and engagement

REACTIVE - The Paper Trail

Includes:

• Accident reports
• Internal investigations /

incident reviews

• Witness statements
• Method statements and

risk assessments

• Photographs, CCTV
• Personnel and training

records Who will see them?

• The injured person/their

solicitor

• Your solicitor
• HSE/EHO/police/COPFS/

CPS

• Your insurer
• Auditors
• Senior management
• Most importantly of all…

Sheriff or Judge

Some + examples…