Legislation For Health And Safety Managers Law Essay

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The purpose of this report is to highlight the importance of Health and Safety in the workplace to the senior management of City Building (Glasgow) LLP and of the considerations to be kept in mind during our own operations, which if not managed correctly can result in non-compliance of legislation or adhering to commands detailing best practice. This can have impact on employee's health, safety, welfare, corporate objectives and significant costs from fines and liability claims.

This report consists of information from a case study and lessons to be learned from a fatal accident inquiry, which occurred the 29th of May 2008 in Dundee on a construction site which resulted in the tragic loss of ones life.

There was a duty of care owed, which was not given in this case study and the report gives details of employers' duty of care. There are also implications arising from litigation, fines, imprisonment and liability settlements which our organisation may face, if there is non-compliance with civil and statute law which will also be found in the main body of this report.

The conclusions suggest reviewing our organisations work practices for possible development and improvement, which may require to be addressed within our own organisation. The recommendations section of the report give methods of best practice and methods of alleviation to avoid the disruptive implications which as detailed within the fatal accident inquiry.

The references and appendices contain useful information and guidance for management, which will ensure compliance with up to date legislation. Also found will be examples of case studies highlighting the effects on employees and the costly expenses resulting from fines and delay in production due to improvement and prohibition notices being served on employers.

2.0 Background

On the 29th of May 2008 a tragic accident occurred at a construction site within Dundee, The old Tay Spinners Factory. A polish man known as Andrezej Freitag, left his loving family that morning around nine o'clock never to return. Andrezej fell 2.91 metres from the top floor of the building, down the smoke extraction shaft onto concrete onto the middle floor. There was several factors which may have prevented this loss of life which relate to poor health and safety management and several breaches in legislation.

After the fall Mr Freitag was transferred to the intensive care unit of Ninewells Hospital by the director Mr Richard Pratt and Mr Beyger one of the employees of Discovery Homes (Scotland) who accompanied Mr Pratt as an interpreter for the nurses and doctors at Ninewells Hospital, Mr Freitag died on the 30th May 2008 at 13.00 hours. Mr Freitag's death was a result of sustaining multiple injuries caused by blunt force trauma caused by the fall.

Discovery Homes (Scotland) Ltd, the (first respondents) was Mr Freitag's employers who breached numerous counts of common and statutory law. There were fines imposed resulting from breaches in Health and Safety Legislation. The company Director Mr Richard Pratt was fined £5,000 under section 37 of the Health and Safety at Work etc Act 1974 (HASAWA 1974) this part of the Act deals with personal liability of directors. This is where an offence is committed by a corporate body with the consent, collusion or neglect by any director or senior officer of the corporate body. In total DHSL were fined £40,000 for breaches in legislation.

This case study sets an example for CBG's senior management, that as individuals with responsibilities and obligations regarding the health, safety and welfare of the employees of the organisation, they are open to prosecution for offences under the HASAWA 1974.

Accidents occur every day. They can happen whether health and safety legislation is being followed or not. Although when the appropriate procedures are being followed there's more of a chance that accidents will not occur and as an employer you have a duty of care which must be taken seriously at all times. If your legal obligations are not followed it could lead to prosecution to both you and your organisation which could severely damage your business and reputation.

3.0 Main Findings

3.1 The Duty of Care

General Duties

There are many different people throughout an organisation that have a responsibility and a duty of care. Common and Statute Law, state that employers owe a duty of care to each of their employees in so far as is reasonably practicable.

The employer also owes a duty of care to "their neighbour" who could be a person or a building, anyone or any thing which may be affected by their acts or omissions from the course of their work or by the actions of their employees during the normal course of their employment (vicarious liability). An example case of vicarious liability is Poland v John Parr & Sons, 1927.

Absolute duties are where risks to employees or 'neighbours' is inevitable and there is no defence by an employer if they ignore duties to provide safety precautions.

Contractors, delivery personnel, customers' maintenance personnel, young people and trespassers are some examples of persons who can be classed as the employer's neighbour, along with another's property which may have been damaged or affected.

Occupier's liability places obligations on the occupier being a landlord, owner or person in control of the premises, with reference to an employer in this case, responsible for their workplace, to provide a duty of care as in the general duties listed below.

Employers cannot delegate or contract out of their legal obligations. General duties are both common law and statutory duties.

Employer's General Duties -

To provide safe plant and safe systems of work to his employees or anyone who may be harmed by their business and also to ensure that manufacturer's instructions are followed and any personal protective equipment needed is provided

To provide suitable and sufficient information, instruction, training and supervision to all employees on the tasks they carry out

Ensure that the workplace is safe at all times including clear access and egress to the workplace

Provide a safe, clean and comfortable working environment and welfare facilities for all staff

To train all staff in the usage, storage and disposal of hazardous substances and materials

To inform employees of any potential hazards from the tasks they carry out or area they work

Have emergency plans in place

Ensure that ventilation, temperature, lighting, and toilet, washing and rest facilities all meet health, safety and welfare requirements

To take precautions against the risks caused by flammable or explosive hazards, electrical equipment, noise and radiation

To avoid potentially dangerous work involving manual handling and if it can't be avoided, take precautions to reduce the risk of injury

To report certain accidents, injuries, diseases and dangerous occurrences to either the Health and Safety Executive (HSE) or the local authority, depending on the type of business

For an employee or neighbor to claim negligence (Delict) by an employer they must prove the three main factors Damnun Injuria Datum.

A duty of care was owed by the employer and the incident took place during the course of their employment

There was a breach of that duty and the incident was foreseeable and all reasonable precautions were not taken

Loss or damage was suffered including injury and disease as a result of an employers breach of duty

The HASAWA 1974 also places general duties on others with regard to their health and safety. Sections 3-7 implies obligations to the self employed (3), landlords, owners and those in control of premises (4) suppliers, designers, importers and manufacturers (6) and section 7 are the duties of employees to take responsibility for their own health and safety and of their colleagues H&S.

Employee duties under section 7 also require employees to assist and co operate with the employers, to fulfil their legal H&S obligations.

Occupier's General Duty -

To take care in all circumstances so far as is reasonably practical to any visitor who may come onto the premises for the purpose which he was invited or permitted to be there

The occupier must also be aware that children entering their premises will be less careful than adults therefore they must take extra precautions

If an occupier is aware that trespassers are on his/her land and that those trespassers may be at serious risk, then that occupier would owe a duty to inform the trespassers that they are in danger

Selwyn, N (1999/00) Law of Health and Safety at Work (Page 348)

The Consumer Protection Act provides a supplementary incentive for businesses to ensure that their products provide the safety that people using them or affected by them are reasonably entitled to expect. To ensure that the consumers are protected against products that they are purchasing from the producer, the producer must ensure -

To check all stages of production (design, manufacture, presentation and marketing) to help ensure that only safe products reach their customers

To check whether there are any specific regulations setting mandatory requirements for the company's products: also check whether there are any published or proposed safety standards for its products and to what extent they meet or could be made to meet the standard

To consider introducing quality assurance at each stage of the production process

To assess whether the company's insurance cover is adequate, including product liability insurance. The amount of insurance cover obtained is a matter for commercial judgement, but the organisation's should seek advice from their own insurance advisors

To review any contractual arrangements with suppliers, customers or others with whom the business has relevant contracts (a business cannot contract out of any liability under the Act, but might, for example, seek an indemnity from others in the event of liability under the Act);

decide whether the records kept by the business are adequate, bearing in mind the working life of the product, the 10 year potential liability for product liability claims, and the possible need to identify

suppliers of defective products to the business in defending a product liability action (particularly relevant for "own branders") Many of these preventative measures form part of quality systems such as those specified in BS EN ISO 9000 family of standards.

http://www.berr.gov.uk/files/file22866.pdf

Employees Duty of Care

Every employee has a duty under section 7 of the Health and Safety at Work Act etc 1974 -

To take care for their own health and safety and that of others who may be affected by their acts or omissions at work

To co-operate with the employer so far as is necessary to enable the employer or any other person to comply with a duty or requirement imposed by health and safety law (Section 7).

Contractors Duty of Care

Every contractor has a legal obligation to -

Co-operate with the main contractor, as it is necessary to enable each of them to comply with the various statutory provisions

Provide the main contractor with any information in his possession which might effect the health and safety of any person at work or any other person effected by such work

To comply with any instructions given by the main contractor including health and safety rules

To ensure that notification of the project given under section 7 is displayed where it can be read by any person at work on the site

To comply with any rules applicable to him in the health and safety plan

To provide the main contractor with and information in relation to any death, injury, condition or dangerous occurrence which the contractor is required to report under RIDDOR 1995

Selwyn, N (1999/00) Law of Health and Safety at Work Page 274/275

Designers Duty of Care

The construction design co-coordinators have a legal obligation -

To give advice and assistance to the clients to help them comply with their duties

The duty to appoint competent designers and contractors

To ensure that adequate arrangements are in place for managing the projects

To inform the Health and Safety Executive of new projects (any project which is going to last more than 30 days and involve more than 500 person working days i.e.50 persons working more than 10 days

Co-ordinate the design work and any other preparation for construction where relevant to health and safety

Identify and gather the pre-construction information and advise the client if surveys need be commissioned to fill significant gaps

Manage the flow of health and safety information between clients, contractors and designers

To advise the client on the suitability of the initial construction phase plan and the arrangements made to ensure that the welfare facilities are there from the start

To create or update a suitable and sufficient health and safety file for future use at the end of the construction phase

Selwyn, N (1999/00) Law of Health and Safety at Work PAGE 275

Importers, Manufacturer's and Suppliers Duty of Care

Anyone who manufactures, imports or supplies any article for use in the workplace must ensure, so far as is reasonably practical that the article is safe and exclusive of risks to anyone working with or nearby and also to ensure it is used properly and it complies with all legal requirements.

Any person who erects or installs any article for use at work or in any premises must ensure that so far as is reasonably practical that nothing about the way in which it is erected or installed makes it unsafe or creates a risk to health when properly used.

They must also take such steps as necessary to ensure that all information is available with regards to the use of substance at work, the risk to health and safety associated with such substance, the conditions necessary to ensure that the substance will be safe and without risks to health when properly used and the procedures to be followed in the case of an accident involving such substance.

Where a person designs, manufactures, imports, sells or supplies an article or substance for or to another person and that other person undertakes in writing to take specified steps sufficient to ensure, as far as is reasonably practicable, that the article or substance will comply with all prescribed requirements and will be safe and without risks to health when properly used, the undertaking shall have the effect of relieving the first-mentioned person from the duty imposed upon him by this section to such an extent as may be reasonable having regard to the terms of the undertaking.

Selwyn, N (1999/00) Law of Health and Safety at Work Page 109

3.2 Specific Duties

A European Framework Directive on Health & Safety gave rise to the Management of Health & Safety at Work Regulations 1999 (MHSAW) which was later amended in 2003 to include regulation 22, Civil Liability.

MHSAW 1999 provided more specific duties owed by employers and employees, the regulations reinforced and amended general duties and some requirements of the HSAWA 1974.

Duties specified are as follows:

Suitable and sufficient risk assessments (Section (3) MHSAW 1999)

Framework for H&S management (HSG 65)

Employ competent persons to assist with compliance of H&S duties

Emergency procedures developed

Provide H&S information with regards to premises sharing

Premises sharing- Employers to share and co operate H&S issues

H&S training for employees

H&S info to temporary workers & their agency

Expectant mothers and young persons protected from particular risks

Health surveillance for employees working under certain conditions.

For further information and guidance of employer and employee duties refer to the (Management of Health & Safety at Work Regs., 1999).

There were duties breached by DHSL in the case study. One of the main duties for an employer is to carry out risk assessments for activities undertaken by their employees particularly involving high risk activities.

DHSL were reported to have a poor health and safety framework in the inquiry, which is a very important feature for the successful health and safety management.

The health and safety framework known as the (HSG 65) involves six different areas which should be given a high level of consideration -

Policy writing and setting objectives for H&S

Organising control, co-operation, communication and competency of management (known as the 4 C's)

Planning & Implementing workplace precautions and risk control systems (RCS's)

Measuring performance by active and reactive means on the effectiveness of (RCS's) and precautions

Reviewing performance by learning from experience, improving performance, developing your H&S management system and responding by improving when needed

Auditing your management system

3.3 Non Compliance Implications

As an employer failure to comply with legislation (their general and specific duties) can result in criminal and civil proceedings against the managing directors, employees, anyone representing the organisation and the organisation itself.

The managing director of DHSL was fined a sum of £5,000 and the organisation itself was fined a further £40,000 for breaching legislation.

The Health and Safety Executive (HSE) issued a prohibition notice after visiting the site for further dangerous conditions and there was a joint investigation carried out by the HSE and the Police.

The outcome of breaches in health and safety legislation, particularly resulting in serious injury or fatalities of employees in the workplace can result in more substantial costs than what was incurred in this instance.

Failure to ensure the health, safety and welfare of your employees can have diverse impacts -

Low morale- lower production & process (Uninsured)

High staff turnover

Sick pay costs (Uninsured)

Costs for replacement employees (training PPE etc.) (Uninsured)

Advertising cost of recruitment to replace lost staff (Uninsured)

Higher insurance premiums due to claims (Uninsured)

Forced costs through improvement and prohibition notices (Uninsured)

Poor business reputation - Loss of business (Uninsured)

Fines (Uninsured)

Additional administration costs

Accident investigation Costs (Uninsured)

This list is endless and there is many more implications and impact on your organisation resulting from poor health and safety management and failure to comply with health and safety legislation. Many of the implications you will see from the list above, are NOT insured and your organisation will have to make payment to such additional costs from service budgets, impacting further on the possible non achievement of corporate objectives.

Outcomes from prosecution and civil claims could result in corporate risks to CBG, by having strong effects against their service delivery and failure to perform and achieve.

3.4 Duties and Responsibilities HSE Inspectors

Health and Safety Inspectors work for both the HSE and local authorities, they have various powers to assist and enforce compliance with health and safety regulations. Inspectors should be consulted for guidance on any H&S matters and to assist your organisation on developing and maintaining a positive H&S culture.

Below are duties and responsibilities of CBG's health and safety inspectors -

Develop, monitor and review the companies health and safety policy, procedures and programmes

Assist management in complying with legislation and regulations with the objective of ensuring that all reasonable and proper measures are taken to protect the safety of employees, visitors, clients, young persons at work, trespassers and members of the public

Set up budget proposals for health and safety training and operation of the company

Increase health and safety awareness throughout the organisation and promote a positive health and safety culture and ethos

Investigate and report on all serious/critical personal injury accidents occurring to anyone within CBG whom they owe a duty to

Investigate and report on complaints of hazardous working conditions to the appropriate senior staff

Respond to employees safety concerns

Arrange for external agencies to carry out inspections

Develop, review and update emergency plan were necessary

Liaise with the emergency services (fire department) regarding the organisations emergency procedures

Carry out thorough examinations of the workplace when necessary

Assume other duties as may be assigned

Powers of HSE Inspectors -

Enter premises with a police Officer if necessary at any reasonable time

Order premises to be left undisturbed for examination and investigation

Destroy, remove or render harmless any article or substance

Take photos, samples, dismantle and remove any substance or equipment

Require the production of information and books (accident books, risk assessments)

Initiate prosecutions and issue improvement & prohibition notices

There was a prohibition notice issued after Mr Freitag's death, due to serious risks to employees working on the construction site. The prohibition notice was then removed by the HSE without carrying out an inspection of the site to ensure it was safe for them to go back to work, which was identified as being unacceptable by the inquiry.

The managing director interfered with the evidence on the scene, by placing a barrier at the area where Mr Freitag fell (down the extraction shaft). The consequences of this action could have resulted in criminal prosecution of the director.

3.5 Breaches of Legislation

As mentioned previously DHSL breached several regulations for which the received total fines of £40,000. The breaches included Section (2)4 of the Health and Safety at Work etc Act 1974, for failure to provide a safe place of work for their employees.

The company Director, Mr Richard Pratt received a fine of £5,000 for breaching Section 37 of the HASAWA 1974, Personal liability of Directors for consent or convenience contributing to neglect resulting in harm or loss was also breached.

http://www.hse.gov.uk/press/2009/coisco12009.htm

City Building (Glasgow) LLP

City Building has specific duties for each and every employee but their legal obligation with regards to construction work being carried out is -

To ensure any construction work carried out by City Building (Glasgow) LLP is done without risks to the health and safety of its employees and others

Managers involved in construction work will ensure that such work is planned in accordance with all relevant standards or statutory provisions

To ensure that employees are provided with the necessary information relating to any risks arising out of the work

To ensure all of the preventative and protective measures have been taken

City Building (Glasgow) LLP Health, Safety & Welfare Policy (May '07)

3.6 Potential Breaches

Here you will find more regulations which were breached by Discovery Homes Scotland Limited and what we 'City Building (Glasgow) LLP' (CBG) have in place to ensure we are on the right side of the law -

Under Section 2 (1) of the Health and Safety at Work etc Act 1974 CBG ensures that all of their employees have a safe and clean working environment and welfare facilities, plant and safe systems of work, safe access and egress to their workplace, provide information instruction training and supervision, safe usage, storage, transporting and disposal of hazardous substances.

Section 37(1) of the Health and Safety at Work etc Act 1974 and The Construction (Design and Management) Regulations 2007 CBG have a competent person to carry out such duties under these regulations.

The Construction (Health, Safety & Welfare) Regulations 1996, CBG ensure that all personnel are safe whilst carrying out their duties at work and receive no ill health whilst doing so and they must also provide adequate welfare facilities for all employees.

ACTION TO PREVENT PERSONS FALLING -

CBG take whatever steps needed as to prevent persons from falling at work.

The term "working platform" means any platform used as a place of work or as means for access to (or egress from) that place.

Chandler, P (1997) an A-Z of Health and Safety Law (Second Edition) Page 128

CBG ensure that the "The Construction (ifting Operations) Regulations 1961" are followed by carrying out careful inspections on and mechanical/lifting equipment use by their employees and providing information instruction training supervision and personal and protective equipment where needed.

CBG take The Management of Health and Safety at Work Regulations 1992 very seriously, with regards to risk assessment they have a competent person carry out risk assessments of the risks to the health and safety of his employees to which they are exposed whilst they are at work.

CBG follow The Personal Protective Equipment Regulations 1992 which requires employers to assess the PPE before use to ensure it is suitable for the task, to keep PPE maintained and stored properly also provide information, instruction, training on PPE and supervision where needed to ensure it is getting used properly.

City Building (Glasgow) LLP follow regulation 3 of the Management of Health and Safety at Work Regulations 1992 which imposes a duty on every employer to make a "suitable and sufficient risk assessment" of the risks to which he/she or any of their employees are exposed to whilst at their work and of any risks to members of the public (customers, visitors, guests, clients or passers-by) who could be effected by the way he/she conducts their business.

4.0 Conclusion

Overall this report should give management an insight of what could go wrong if they fail to comply with health and safety legislation, and how easy it is for something to go wrong. They should also have a better indication of the impact a fatal incidents could have on the individual's family, co-workers of the decease and not to mention the massive impacts it could have on their organisation.

City Building (Glasgow) LLP have a good health and safety culture and ethos there are always ways in which to continually improve and develop our reputation and maintain a positive H&S culture.

Any concerns which CBG's employees have they can either raise with their managers, CBG's health and safety section or their health and safety representative. CBG ensure that any health and safety issues are resolved as soon as possible. They comply with all relevant health and safety legislation which allows their employees to come to work safely and get home to their loved ones safely, and long may this continue.

Details within the report express the problems encountered and implications faced by any organisation as a result of an accident or injury sustained by an employee or a 'neighbour' as a result of breaches of H&S common and statutory law.

5.0 Recommendations

From the details in this report and from the findings in the fatal accident inquiry it is clear that there were many contributions to the tragic loss of Mr Feitag's life which could have been avoided, and the suffering it caused his family. For an employee at work to lose their life, regardless of the type of work and risk factors involved, is highly unacceptable.

The duty of care to employees and our neighbours is not just a statutory duty that should be complied with it is also a common duty we owe to everyone.

The results for failing to comply with legislation will result in public and or private prosecution and civil action against us, collectively as an organisation or as individuals, being held accountable for culpa or delict.

From this report and the inquiry findings it's obvious the need for a proactive approach is very important with senior managers down to employees on the shop floor taking health and safety responsibilities very seriously.

A positive health and safety culture will only work with inclusion of all employees through consultation and integration in health and safety decision making and awareness. A framework for health and safety as suggested in the management of health and safety regulations will greatly assist in positive culture building within your organisation. City Building should continue with their successful system. You should ensure to continue with training of employees, carrying out toolbox talks and always have up-to-date risk assessments available and an idea is to keep employees involved with health and safety.

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