Health & Safety – An employer’s responsibilities Laura McMillan, Brodies 8 May 2018 ABERDEEN • EDINBURGH • GLASGOW • BRUSSELS www.brodies.com
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
The Management of Health and Safety at Work The Regulations Lifting Workplace 1999 Operations (Health, and Lifting Safety and Equipment Welfare) Regulations Regulations 1998 1992 The Health Health and Safety Work at &Safety (Display Height Screen Regulations at Work Equipment) 2005 Regulations Act 1974 1992 The Provision The Personal and Use of Protective Work Equipment at Equipment Work Regulations Regulations The Manual 1998 1992 Handling Operations Regulations 1992
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 Key duties of an employer … HSWA 1974 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 occupational 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 old 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 organisation 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?
Criminal penalties Breach Accused Penalty Section 7 HSWA Employee Unlimited fine and/or up to 2 years imprisonment Section 37 HSWA Director or Unlimited fine and/or up to Manager 2 year imprisonment and/or director disqualification Section 2-6 HSWA Company Unlimited fine CMCHA Company Unlimited fine/Publicity order Culpable homicide Individual Imprisonment
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 organisation 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
Damages Claim Internal Regulator H&S involved review Improv/t HR issues Notice INCIDENT Media Prohib/n interest notice Enforc/t FAI Notice appeal Criminal HSE FFI charges invoice
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 Who will see them? Includes: • The injured person/their • Accident reports solicitor • Internal investigations / • Your solicitor incident reviews • HSE/EHO/police/COPFS/ • Witness statements CPS • Method statements and • Your insurer risk assessments • Auditors • Photographs, CCTV • Senior management • Personnel and training • Most importantly of all… records Sheriff or Judge
Some + examples…
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