The Area Of Business And Employment Law

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This assignment will, within the area of business and employment law, identify the key features relating to the Health and Safety at Work Act 1974 and will then evaluate the Acts' significance in protecting the rights and interests of the workforce.

The Health and Safety at Work Act 1974 (HSWA) brought in a new approach to dealing with the risks to people at work. Prior to HSWA there were approximately 30 Acts and over 500 regulations dealing with health and safety in the work place. The situation was confusing and unfair in that it afforded some employees greater protection than others. The primary legislation covers all people at work, except domestic workers in private employment. The main objectives of the Act are to secure the health, safety and welfare of all persons at work; to protect others against the risks arising from workplace activities; to control the obtaining, keeping and use of explosive or highly flammable substances and to control emissions into the atmosphere of noxious or offensive substances. The primary legislation includes Offices, Shops and Railway Premises Act 1963, Environment and Safety Information Act 1988. There are also secondary regulations within the HSWA including Control of Substances Hazardous to Health Regulation (1994) COSHHR and Health and Safety (Display Screen Equipment) Regulation 1992.

Every employer has a duty; so far as is reasonably practicable, to ensure the health, safety and welfare at work of all their employees. This duty includes the provision and maintenance of machines and systems of work that are safe and without risk to health; ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; provision of information, instruction, training and supervision as is necessary to ensure the health and safety at work of employees; and the maintenance of the place of work in a condition that is safe and the provision of a working environment for all employees that is safe, without risks to health and adequate with regards to facilities and arrangements for their welfare at work.

Employees also have a duty while at work to ensure that they take reasonable care for the health and safety of themselves and of other employees who may be affected by their acts or omissions at work and to cooperate so far as is necessary to enable the duty or requirement imposed on them to be performed or complied with.

Under the HSWA directors, managers, company secretaries and similar officers of the corporate body have both general and specific duties. Breaches of these duties can result in individuals being prosecuted. The enforcing authorities under the HSWA are; the Health and Safety Executive (HSE) which is divided into specific inspectorates including agricultural, factories and nuclear installations; Local Authorities, through their environmental health departments; and the fire authority. Enforcement is undertaken by inspectors appointed under the Act and authorised by a written warrant from the enforcing authority.

Employers have a responsibility to make workplaces as safe as possible. Safe work practice can only take place when the law is adhered to. Health and Safety regulations require that employers appoint competent persons to help them carry out risk assessments. HSE v Bournemouth Borough Council (2005), an agency worker was injured after being crushed between moving land train carriage and seafront railings whilst helping to remove the train from the garage and set up and start of day. They had not received any health and safety information or instruction prior to or during this work. Bournemouth BC were found to be in breach of the Provision and Use of Work Equipment Regs 1998 (No 9) para 2, Provision and Use of Work Equip Regs 1998 (No 8) para 1 and Provision and Use of Work Equip Regs 1998 (No 9) para 1. These regulations state that;

  • Every employer shall ensure that any of his employees who supervises or manages the use of work equipment has received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken.
  • Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment.
  • Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. (HSWA 1974)

The Magistrates court found that if Bournemouth BC had adhered to the regulations then this accident and subsequent injury could have been avoided, therefore Bournemouth BC were fined £10,500.00.

Another similar case is that of HSE v Timbmet Rochdale Ltd (2006), an employee suffered fatal injuries after falling 10 metres through a roof light / asbestos cement sheet whilst working to clear a blockage in guttering. The Magistrates Court found that the company had failed to make a suitable and sufficient assessment of the risks to the health and safety of their employee whilst they were at work. Timbmet were found to be in breach of the Health and Safety At Work Act 1974, Section 2, Sub Section 1 and Management of Health & Safety at Work Regulations 1999 (No 3) para 1. These breaches were in relation to interpretation and application of the Health and Safety at Work Regulations. The Magistrates Court fined the company £25,000.00.

If we use these examples in evaluating the significance of the HSWA in protecting the rights and interests of the workforce we could argue that if the HSWA had been adhered to neither accident would have occurred, therefore it was not failure on the part of the Act, but that both employers failed in their duty to provide adequate training. Where a person suffers damage caused by a breach of a duty imposed by regulations, they have a cause of action in tort against the offender. The fundamental requirement of the HSWA is that of planning the safest way to combine machinery, equipment and people to do the work in a specified area, which involves;

  • layouts that allow for safe means of getting to and from the workplace and machinery;
  • Correct sequence of operations;
  • Analysis of tasks;
  • Provision of a safe and healthy work environment.

It is therefore paramount that all employers adhere to these regulations not only to avoid accidents and even fatalities, but also to avoid prosecution and fines.

Most of the legislation was not introduced to solve all problems in society but to try to make it easier to solve them. There is divided opinion about the HSWA. The Act does however cite many negative responses in that it is often thought to be restrictive. In light of these responses it is important to remember that health and safety issues can often be taken out of context, especially by the media. This has been recognised recently by the Health and Safety Executive (HSE) which has set about dispersing myths about issues such as workers not being allowed to use stepladders, teachers not being allowed to apply plasters. It is the misunderstandings about the Act that have been developed in places, out of which these myths are born and they bear no resemblance to the original intention.

We have to live with risks every day, some apparent and some not, and certainly the intention of the HSWA is not that we need to carry out a risk assessment every time we make a cup of tea. Many companies have a cautious approach to circumstances when it is really not required under legislation. This is caused by lack of experience and all that is needed to comply with the legal requirements is to think about the risks involved with a certain action or process and do what would be logically expected to protect their workforce. With hundreds of regulatory requirements and codes of practice, it is not surprising that companies can be confused about HSWA and its legislation. This in turn has led to the many consultants, advisors, trainers, auditors and training bodies needed to support confused companies.

In recent years we have seen developments within OHS (Occupational Health Service) become more effective. The best example of this is Occupational Health and Safety Specification (OHSAS) 18001, which delineate the structure of management systems that can help companies to put together checks in their company, this can then assist them with an overwhelming amount of legislation branching from the HSWA. In many cases there are discrepancies as to the way in which the HSWA is interpreted, but it is the context in which the Act is taken that is most important. It is adversative that so often the HSWA, created with nothing but good intentions, can be misunderstood and maligned.

The HSWA represents a landmark in health and safety legislation assembling various parts of legislation to pave the way for the secondary legislation that we see today. Whether the Act is now a help or hindrance to companies, and to the people it was created to protect, is an issue that spark many debates. The HSWA was formed as result of the Robens Report on Safety and Health at Work published in June 1972. One method of evaluating the success of HSWA is to reflect on whether the problems recognised by the Robens Report have been dealt with by the HSWA. (Lingard, H. Rowlinson, S, 2005: online)

The Robens Report itself ran to over 80,000 words but at its key focus was the need to see reduction in the number of work related fatalities. The report also identified two other principal issues:

  • too much health and safety law;
  • the health and safety law was too complicated;

The number of employees killed at work has fallen from 651 in 1974 to approximately 180 in 2009 (The Health and Safety Executive, 2009: online), This reduction shows that the HSWA has brought about an improvement in work place safety. The HSWA was a significant departure from what had come previously in creating overriding and universal responsibilities for both employers and employees. The employer's duties under section 2 and 3 of HSWA embraced the concept distilled in the Robens Report that “those who create the risk are best placed to manage it”.

In conclusion the HSWA has been successful in reducing and simplifying health and safety law and to some extent especially given the multitude of statutes which it replaced. However, the Robens Report had always visualised that the new Act should provide a framework for managing health and safety which would then need to be supplemented by more specific regulations. However, the Robens committee could not have anticipated the substantial influence that European legislation would eventually have. From the first set of European inspired regulations in 1978 through to the introduction of the European Regulations in 1992, and continuing today EC requirements have added complexity to UK health and safety law.

These regulations have also been supplemented by a confusing array of Approved Codes of Practice (ACoPs) and other guidance. These supplementary regulations have allowed for more flexibility but have also made adherence with the law more difficult. In many respects the move from various health and safety rules to the HSWA with its collective duties has reduced and simplified the law. Therefore in my opinion the HSWA has been valuable in simplifying the health and safety law in order to protect the rights and interests of the workforce but that adherence to the law has become progressively more difficult.