Responsibilities Under the Health and Safety at Work Act

STUDENT NAME: IP OGOLO

1. INTRODUCTION

The purpose of this assignment is to compare and contrast the responsibilities imposed by the duties under sections 2,3,4,7 and 8 of the Health and Safety at Work Act 1974. This would be achieved by critically analysing different case law, the Health and Safety at Work Act and other relevant literature. In this assignment, the interpretation of various words and phrases in the above mentioned sections of the Health and Safety at Work Act 1974 would be looked at and the elements of convictions would also be analysed.

2. OVERVIEW OF SECTIONS 2,3 AND 4
   1. SECTION 2 OF THE HASAWA 1974

Section 2 of the Health and Safety at Work Act (HASAWA) 1974, imposes duties on the employer towards his employees. Section 2(1), states that ‘‘it shall be the duty of every employer to ensure so far as is reasonably practicable the health, safety and welfare at work of all its employees”. The words health, safety and welfare are not clearly defined (Moore and Selwyn 2015) in the HASAWA 1974 but health includes both mental and physical health. Safety refers to the absence of foreseeable injury while welfare refers to water, lighting, toilet facilities, cloakroom, canteen etc.

This duty is imposed on every employer irrespective of the size of the business or organisation, to ensure that such workplace is safe provided it is reasonably practicable for such employer to make it safe. The duties imposed by the HASAWA 1974 do not exempt employers of small businesses and the only defence from employers would be ‘reasonable practicability’. For example, an off-license shop employer who only has two part-time employees must also comply with the duties of the employer to ensure the health, safety and welfare of its part-time employees. Section 2(1) also included welfare unlike other sections of the HASAWA 1974 which only focus on health and safety. This means that employers have a duty to provide welfare facilities such as toilets, change room, eating area, adequate ventilation, adequate lighting, etc.

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The only defence for small business employers or any other employer who is non-compliant with these duties is the reasonably practicability of such health and safety measures. Reasonably practicability is one of those issues of debate. Reasonable practicable depends on a number of factors which are used to test if it was reasonably practicable for the workplace to be safe or not. These factors are weighed on a scale which measures the risks versus the sacrifices which the employer has to make in order to comply with the duties. These sacrifices could be ( Matthews and Ageros 2016) time, money, man-power or the effort/knowledge available to eliminate or mitigate those health and safety risks.

An example of a case law where ‘so far as is reasonably practicable’ played a significant role in the judgement is in Edwards v National Coal Board [1949] 1 ALL ER 743, where a timberman who worked in a coalmine was killed by the collapse of the side walls of the road in the course of his work. The National Coal Board was taken to court and they argued that it was not reasonably practicable for them to have prevented the accident. They contended that it was not possible for them to predict where and when a collapse would occur, and the cost; labour and effort in propping and lining all their mines outweigh the risk.

Reasonably practicability ( Moore and Selwyn 2015) varies in each prosecution and it is a question of fact and evidence; this depends on the employer having sufficient evidence to show that everything reasonably practicable was done to make the workplace safe . Therefore, what might be reasonably practicable for ‘company A’ may not necessarily be reasonably practicable for ‘company B’

Figure 1 (Reasonably practicable)  

Subsection 2(2) of the HASAWA 1974 states that it is the duty of the employer to ensure that plants are well maintained and safe systems of work are available so far as is reasonably practicable.

Safe systems of work (Moore and Selwyn 2015) for plants can only be provided by an employer if the plant is located in a place where the employer has control over it and can give clear directions and procedures on how it should be used. Plants should be regularly maintained and efficient at all times in order to comply with the duties under subsection 2(2)(a). The maintenance (Moore and Selwyn 2015) of plants is a matter of foresight. The employer could have planned routine checks by competent persons or monitoring program in place to meet the requirements of this section.

In section 2(2) the employer also has a duty to provide information, training, instruction and supervision to its employees. The information (Moore and Selwyn 2015) which is provided must be accurate and meaningful and also extends to contractors where necessary to ensure safety. In most cases, employers use induction training as one of the ways to provide information to its employees. Some employers use toolbox talks and organised in-house training as means of conveying health and safety related information to their employees. Any employer who does not provide adequate supervision to its employees would be in breach of this section.

Section 2 (3)-(7) imposes duties on the employer to provide and revise health and safety policy and also have safety representatives and safety committees depending on the size of the organisation.

An example of a prosecution under section 2(3) is Osborne v Bill Taylor of Huyton Ltd [1982] ICR 168. This breach was (Barret and Howells 1995) a failure to prepare an adequate written health and safety policy. The company carried out betting business in thirty-one separate betting shops connected by a central accounting system, management training program etc. The judge’s decision in this case was that the company was not in breach of section 2(3) because it had less than five employees for the time being. In my opinion, I would disagree with the Judge’s decision because the fact that the betting shops are centrally controlled means that it is one single undertaking, taking place in several locations and the total number of employees should be about ninety-three (93), see below for details;

Ã- = 93 employees

Figure 2

And therefore, should have been found guilty for a breach of section 2(3) because more than five employees were conducting a single undertaking in various locations.

2.2. SECTION 3 OF THE HASAWA 1974

Section 3 of the HASAWA 1974 covers the general duties of employers and self-employed to the public/ other people not employed by them. It states that ”it is the duty of every employer to conduct its undertaking in such a way to ensure so far as is reasonably practicable that persons not in his employment are not exposed to health and safety risks”.

(The Health and Safety at Work etc. Act, 1974) Lays emphasis in subsection 3(3) that the employer and self employed persons must give information about the hazards and risks associated with the conduct of its undertaking to those who may be affected by the conduct of his undertaking in a prescribed manner. This basically means that in some cases, it would be necessary for the employer or self employed persons to provide information which could be in the form of mailed newsletters, letter or formal visits to those who may be affected by the conduct of their undertaking to provide the necessary information about the areas in which these people may be affected and ways to reduce exposure for the benefit of their health and safety. For example, before a construction project commences, the neighbouring community needs to be aware of the health and safety risks such as noise, moving plants and heavy duty vehicles, etc in order for both parties to agree on ways to reduce their exposure.

In section 3, the phrase ‘reasonably practicable’ has been used which means that the employer or self employed persons need to weigh the risks versus the cost to determine if it is reasonably practicable for these safety measures to be in place. Additionally, this section refers to the word ‘ prescribed’ which to my understanding means a specified manner in which the information has to be presented to those who may be affected by the conduct of the employer’s or self-employed person’s undertaking. One of the most common prescribed ways in which such information may be conveyed is through induction training for visitors.

In this section, the word ‘risk’ has been used which means (Moore and Selwyn 2015) the possibility of danger and not actual danger. The HASAWA 1974 does not state that an employer needs to wait for an accident to occur before measures and procedures would be in place. It states that provided there is a possibility of danger or injury, then it is the duty of the employer to either eliminate or mitigate such hazards.

Another important word used in section 3 is ‘undertaking’ which means (Moore and Selwyn 2015) business, work activities, enterprise etc. For instance, if ‘company A’ gives a contract to ‘company B (Brick-layer)’ who lays bricks in company A’s site, then the layering of bricks forms part of company A’s undertaking. However, the question of how much control the employer has (Moore and Selwyn 2015) over the operation as part of his undertaking could make it difficult in any criminal conviction. For example, if ‘Company B’ decides to lay the bricks outside company A’s construction site, then company A may not have much control over how the bricklayers decide to lay those bricks with regards to health and safety. Some case law examples referring to ‘undertaking’ are R v Swan hunter Shipbuilders Ltd [1981] ICR 831 and R v Mara [1986] IRLR 154, which would be discussed later in the assignment.

It is important to note that an employer (Moore and Selwyn 2015) may still be conducting his undertaking even though the business is closed. For example, a food factory may be closed but the cleaning and maintenance of machinery may still be taking place which would still form part of the employer’s undertaking.

2.3. SECTION 4

This section states the general duties of persons concerned with premises to persons other than their employees. It imposes duties on people such as landlords, security officers, estate agents etc. who have (Moore and Selwyn 2015) control over non-domestic premises or the means of access (such as doors, stairs, lift etc) or exit or any plant or substances which are used by non-employees as a place of work, to ensure that such areas or plants are safe so far as is reasonably practicable.

It is important to note that residential premises are clearly domestic premises except the communal areas such as lifts, stairs, main door etc. which could be used as access for persons such as handyman, repairers, plumber, electricians, etc. as a place of work.

The phrase ‘reasonably practicable’ has also been used in this section of the Act. When a person makes (Moore and Selwyn 2015) available premises for the use of others, the reasonableness of the measures taken to ensure safety must be determined in the light of the controller’s knowledge of the anticipated use of those premises and his knowledge of the actual use. For example, if a Landlord rents out offices to businesses, the landlord needs to know the scope of these businesses in order to put certain safety measures in place.

This means that the reasonableness of such safety measures (Moore and Selwyn 2015) would be weighed against the controller’s knowledge, the finances and effort it would take for such hazard to be eliminated or mitigated. For instance, an uneducated landlord who owns business premises may have the finances but may not have the knowledge or effort in ensuring that such premises is safe however evidence is needed to this defence of reasonably practicability.

It is important to note that the duties (Moore and Selwyn 2015) under section 4 are not limited to persons who are at work. Section 4(1)(a) states that these duties are in relation to non-employees, which would protect the general public including children. For example, a person who controls children’s play centres, libraries, schools etc would still have a duty to ensure that such premises are safe and without risks to those who may be affected by the conduct of their undertaking.

A case law example under a breach of section 4 is Mailer v Austin Rover Group Plc [1989] 2 ALL ER 1087, where an employee of a contractor was killed while working for Austin Rover. Austin Rover was charged for a breach of section 4 because it had total control of the premises and could have taken measures to prevent such fatality.

Another example of a prosecution under section 4 is the case of Westminster City Council versus Select Management Ltd [1984] 1 ALL ER 994. This company managed blocks of flats in London and had control of the common areas such as lifts, staircase, and landings etc and failed to ensure that the lifts and electrical installations were safe and without risk to health and safety.

4. SIMILARITIES AND DIFFERENCE BETWEEN SECTIONS 2, 3 AND 4

2.4.1 Sections 2 and 3 refer to the duties of the employer either towards their employees or non-employees. The employer has an obligation to ensure that the workplace is safe. Non-employers would be exempted from the duties under sections 2 and 3. Additionally, sections 2 and 3 create criminal offences for the employer if not complied with (R v Tangerine confectionery Ltd [2011] EWCA Crim 2015).

A case law example is R versus Swan Hunter Shipbuilders [1981] ICR 831, where these companies were charged for breaching sections 2 and 3 of the HASAWA 1974. On the 25^th of September 1976, a welder (an employee of Telemeter) went into a small compartment in the deck where a fire started the moment he started welding. The question that was raised (Barrett and Howells 1995) was whether the duties imposed on Swan hunter under sections 2 and 3 include to provide the employees of sub-contractors with information about the dangers of oxygen enriched atmosphere and secondly with instructions to ensure that safety of the workers on board, including the employees of Swan hunters and Telemeter.

Figure 3

From the above diagram the relationship between Swan hunter and Telemeters is wide and the jury made emphasis that the duties under section 2 and 3 are wide enough to cover providing information and instruction to contractors and subcontractors as well.

The precedent that was established in the above case law is the meaning of the phrase ‘conduct of its undertaking’ in relation to the duties imposed on the employer in section 3 of the HASAWA 1974. With regards to undertaking, the welding job done by Telemeter was part of Swan hunter’s undertaking and therefore, failed to ensure the health and safety of persons not in its employment.

2. Furthermore, section 2 is concerned with ensuring safety and section 3 is concerned with ensuring an absence of safety (Matthews and Ageros 2016) which mean the same thing.

The level of safety in the workplace would be determined by what is reasonably foreseeable by the employer. Reasonably foreseeability is an important element in managing risks in the workplace.

An example of a case law where foreseeability of risks played an important role in the judgement is R versus Tangerine Confectionery Ltd [2011] EWCA Crim 2015. In this case, the defendant was charged in breach of section 2 of HASAWA 1974 because an operator of machinery was crushed to death by a ‘WD machine’ used in manufacturing sweets. The judge in R v Tangerine Confectionery Ltd [2011] EWCA Crim 2015 stated, “Safety must be judged by what might be reasonably foreseen by a reasonable and prudent employer”.

The defendant stated that the accident was not foreseeable. The foreseeability of risk (R v Tangerine Confectionery Ltd [2011] EWCA Crim 2015) is only reasonably practicable if a reasonable person can foresee a material risk which is created by a plant, machinery or work-related activity. In this case, the foreseeability of an injury occurring with the use of the WD machine was obvious. However, the jury had no evidence that (R v Tangerine Confectionery Ltd [2011] EWCA Crim 2015) the foreseeability of the risks of this machine caused the accident because the machine had been used for thousands of hours without any accidents. Irrespective of the lack of evidence on foreseeability, the jury concluded that “there was a foreseeable possibility that someone might get entangled in the arms of this machine” (R v Tangerine Confectionery Ltd [2011 ] EWCA Crim 2015).

The precedent that was established in the above case is the meaning of foreseeable risk. The risk has to be a material risk which a reasonable person can foresee to be a source of danger. Foreseeability of risks is relevant to the question whether a material risk to safety exists. That is why a risk assessment is an exercise in foresight. Sections 2 and 3 impose a duty on employers to ensure an absence of safety (R v Tangerine Confectionery Ltd [2011] EWCA Crim 2015) which makes them think deliberately about risks which are both obvious and not obvious. If an employer does not have the knowledge to enable him/her foresee risks, then it is his/her responsibility to employ a competent person such as a health and safety advisor to assist him in conducting an adequate risk assessment.

Another example of a prosecution where foreseeability influenced the judgement is Regina v Pyranha Mouldings Ltd [2014] EWCA Crim 533. Pyranha Mouldings Ltd was prosecuted for a breach of section 2(1) of the HASAWA 1974 due to an incident which occurred on the 2^nd of March 2011. This company manufactured plastic Kayaks and canoes which were shipped in shipping containers. On this particular day, the loader/ banksman’ Mark Malcom’ was crushed against the roof of container because the forklift driver could not see him.

This company was prosecuted because the unsafe system of work had existed for over eighteen years without any risk assessment and lack of supervision of work. The jury stated that (R v Pyranha Mouldings Ltd [2014] EWCA Crim 533) the risk of serious injury or death was substantial and foreseeable but the company did nothing about it. The foreseeability in this case played an important role in the judgement and the elements of conviction for a breach of section 2(1) are that Pyranha mouldings was the employer of Mr Malcom (the injured worker) and the employer also failed to ensure the health, safety and welfare of Mr Malcom and other employees including the forklift driver ‘Mr Kevin’.

The burden of proof rests on Pyranha Mouldings to show the Jury that it took all reasonably practicable steps to keep the workplace safe, which it failed to do therefore was guilty of the offence under section 2(1) of the HASAWA 1974 .

3. Another similarity between sections 2 and 3 is that the duties (Matthews and Ageros 2016) imposed are personal and cannot be delegated. The employer and self-employed have full responsibility to ensure health and safety and have no defence that the duties were delegated to a member of staff who failed to ensure compliance.

4. The difference between sections 2 and 3 (R v Tangerine Confectionery [2011] EWCA Crim 2015) is on the person to whom the obligation is owed. Section 2 creates an obligation towards employees while section 3 is towards non-employees or the general public who may be affected by that employer’s undertaking/ job activities.

An example of a case law is Veola ES v The Queen [2011] EWCA Crim 2015), a refuse collection company that was sentenced for a breach of sections 2 and 3 of the HASAWA 1974. In this case, an employee ‘ Mr Griffiths’ was killed on a fast dual carriage way while collecting litter. The defendant argued that the accident had nothing to do with the operation of the defendant’s undertaking. The appeal was dismissed because the court did not have to prove causation of the accident. Causation of the accident (R v Tangerine Confectionery [2011] EWCA Crim 2015) was a matter of evidence but not an essential ingredient of the offence. An accident is enough evidence that a material risk existed and his employee’s health, safety and welfare were not ensured. Under sections 3 of the HASAWA 1974, it was the conduct of the defendant’s undertaking of litter collection which exposed the defendant’s non-employees to the accident (R v Tangerine Confectionery [2011] EWCA Crim 2015).

5. Another similarity between sections 2, 3 and 4 is that the phrase ‘ so far as is reasonably practicable’ is being used, which means that these duties are not absolute. This phrase gives those obliged to fulfil their duties the freedom to weigh the risks versus the cost, in order to ensure that the workplace or premises is safe. What is reasonably practicable depends (R v Tangerine Confectionery [2011] EWCA Crim 2015) on degree of foreseeable risk of injury, the gravity of the injury if it occurs and the implications of the measures/ methods in avoiding it. An offence is committed under section 2 if the defendant cannot prove that all reasonably practicable steps have been taken to ensure that its employees are safe in the workplace.

While under section 3, an offence is committed if there is a material risk to the health and safety of non-employees (R v Tangerine Confectionery [2011] EWCA Crim 2015) who may be affected by the employer’s undertaking and the defendant has not taken such steps as are reasonably practicable to avoid those risks.

Under section 4, an offence is committed if the person in control of premises so far as is reasonably practicable has not ensured that such premises is safe and without risks to the health and safety of those who might be affected.

6. Another similarity between sections 2 and 3 is that they both refer to the phrase ‘ in such cases as may be prescribed and in a prescribed circumstance and prescribed manner’ which gives an indication that the responsible person based on the situation would fulfil these duties in a particular way.

7. Section 3 and 4 refer to the word ‘undertaking’. In section 3 the employer needs to ensure the health and safety of non-employees who may be affected by any risks arising from his work activities. Subsections 4(4) refers to the controller’s business activities or undertaking which means that any work activity connected with such controller of premises need to be done in a safe manner.

8. Sections 2(2)(d) and 4 have similarities, in that they both refer to the provision of safe access and exit from work premises, provided it is reasonably practicable to do it. These sections also refer to the extent of control which the employer or controller of such premises has. For example in the Swan Hunter Shipbuilders [1981 ICR 831] case, the issue of control was also raised. Another case example (Barret and Howells 1995) is that of Westminster City Council v Select Management Ltd [1985], where the appellant was in breach of section 4 of the HASAWA 1974 because it failed to ensure that the communal areas of a block of flats were safe.

9. Subsection 2(2)(a) imposes duties on the employer to ensure that plants are safe and without risks to (Barret and Howells 1995) employees, which is similar to those duties under sections 4(2).

4. ELEMENTS OF AN OFFENCE OF BREACHING THE DUTIES UNDER SECTION 2

In order for the jury to convict an employer for a breach of sections 2(1) the following elements would need to be proven; (Matthews and Ageros 2016)

• That the defendant was at the material time an employer
• That the defendant failed to ensure the health, safety and welfare of its employees at work. A failure to ensure health and safety occurs when there is an exposure to a material risk to health and safety. The employee (Matthews and Ageros 2016) has to be at work for this to be applicable. This means that when the business is shut or closed for the day and there is no one at work then it is not applicable because no employees are exposed (Matthews and Ageros 2016).

The employer would be guilty of a breach of section 2(1) unless it can prove that it was not reasonably practicable to minimise or eliminate the risk to the health, safety and welfare of its employees. Satisfying the test of reasonably practicability (Barret and Howells 1995) involves placing the risk on one scale and the sacrifices involved in taking the necessary measures for eliminating or mitigating the risk ( time, money, effort etc) being placed on the other scale.

5. ELEMENTS OF AN OFFENCE OF BREACHING THE DUTIES UNDER SECTION 3

In order for an employer to be convicted for a breach of section 3(1) the burden of proof rests on the prosecutor to show the following; (Barret and Howells 1995)

• That the defendant at the material time was an employer
• That the defendant failed to conduct its undertaking in such a way as to ensure (Barret and Howells 1995) that persons not employed by the defendant who might be affected thereby were not exposed to material risks to their health and safety.

6. AREAS OF CONTROVERSIES AND DIFFERENT INTERPRETATIONS OF THE DUTIES

Some words and phrases relating to the duties under sections 2, 3 and 4 have been interpreted differently by different judges and have also created controversies in the court of law.

1. Firstly, the HASAWA 1974 does not directly define the word ’employer’ but defines an employee to be someone who works under a contract of employment. Thus, an employer is a person who employs an employee. Therefore, if a person has no employees he/she is not an employer and does not owe a duty under section 3(1) but could be prosecuted under section 3(2) as a self-employed person. The fact that the act does not clearly define the word ’employer’ creates ambiguity in the court where someone may be regarded as an employer but no written contract of employment exists between such employer and the employee. This also creates another issue between the contract of employment and contract of service. For example, a small business may have a contract of service with a self-employed cleaner to clean their premises on a daily basis, but there is no contract of employment between them. Would the jury regard such a cleaner as an employee or a contractor? And would the employer still owe a duty under section 2? These questions could only be answered based on the situation and evidence.

Moreover, there are companies which employ nobody under a written contract of service but engage a significant number of self-employed workers. In this case, a prosecution of such a company may be undertaken for a breach of sections 2(1) or sections 3(1) with the company alleged to be an employer (Matthews and Ageros 2016) through the extent of its control over those performing the work .For example, R versus Swan Hunter shipbuilder [1981] ICR 831 case.

2. Another area of controversy under these duties is with the phrase ‘exposed to risks to health and safety’. It is important to note that an exposure to health and safety risks (Matthews and Ageros 2016) occurs where there is a possibility of danger and this does not require the danger to have occurred or any dangerous occurrence to have come to pass. In some prosecutions, the prosecutors argued that an accident or injury is sufficient evidence to prove that a material risk exists in the workplace.

An example of a prosecution relating to this phrase (Barret and Howells 1995) is the case of R v Board of Trustees of the Science Museum[1993] 3 All ER 853 ,where the museum was in breach of section 3(1) because two of its cooling towers could possibly be containing legionella Pneumophila bacteria. The prosecutor stated (Barret and Howells 1995) that they did not have to prove that the members of the public actually inhaled the bacteria and that the word ‘risk’ means the possibility of danger and not necessarily actual danger.

Even where an injury has occurred, it may not be enough for the prosecutor to simply claim that the injury demonstrates that there was a risk. Where a prosecution is brought under section 3(1), it may be necessary to identify and prove the respects (Matthews and Ageros 2016) in which the injured person was liable to be affected by the way the defendant conducted its undertaking.

3. Furthermore, could an employer be prosecuted under section 2 when no employee is at work? This is an area where prosecutors have debated over.

For example, Bolton Metropolitan Borough Council versus Malrod Insulations Ltd [1993] ICR 358, where the prosecutor appealed on allegations made against an asbestos removal company called ‘Malrod Insulations Ltd’. This company was contracted to strip asbestos insulation from the premises of Ingesoll Rand Ltd. On the 21^st of November 1989, the premises were inspected by the environmental health services of Bolton metropolitan Borough council.

During this inspection, there were no employees at work and it was evident that the asbestos decontamination plant had electrical defects. The prosecutor took (Barret and Howells 1995) this case to court but at the end of the case, the recorder upheld a submission that there was no case to answer because in order for Malrod Insulations Ltd to be found guilty of the offence under section 2 of the HASAWA 1974, its employees had to be at work.

The appellant argued (Barret and Howells 1995) that it is not the fact of men being at work while in the course of employment which creates the offence, but the HASAWA 1974 must protect the employees who would come to work the next day.

In the above case, the interpretation of the employers’ duties seems ambiguous. In my opinion, section 2(1) states that the employer should ensure the health, safety and welfare of its employees ‘at work’ and then section 2(2) lays down examples of how these duties can be carried out. However, (Moore and Selwyn 2015) it begins with the sentence ‘without prejudice to the generality of the duties under the preceding subsection’. Subsection 2(2)(a) states that the provision of safe plants is a requirement irrespective of whether or not employees are at work. Referring to the above case, the fact that such unsafe asbestos decontamination plant is within the place of work increases its likelihood of been used when workers resume work the following day. The employer could argue that such unsafe plants would undergo repairs before anyone is permitted to use the