Background
The framework for Health and Safety laws in England, Wales and Scotland is found within the Health and Safety at Work etc. Act 1974, often referred to as HASAWA. HASAWA protects employees and workers by establishing duties which are imposed on the employer, employees, and other key individuals – the duties aim to ensure the correct health and safety practices are adhered to.
Example of some of the Employers Duties under HASAWA 1974:
- Duty of employer to employees - 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 their employees.
- Duty of the employer to provide, so far as is reasonably practicable:
- Safe plant, equipment, systems of work
- Safe methods of handling and transporting substances and articles
- Information, instruction, training and supervision
- Safe place of work, access and egress
- Safe environment and adequate welfare facilities
- Absolute duty where an employer employs 5 or more employees, to provide a written health and safety policy, and communicate it to employees
- Consult appointed safety representatives and set up health and safety committee if requested to do so by 2 or more of them.
- Duty of employer (& self-employed) to prevent, third parties from being harmed by work activities.
The Health and Safety Executive (HSE)
The act facilitated the creation of the Health and Safety Executive (HSE), a body which acts as a regulator and enforces the duties under HASAWA, but also provides useful guidance through their Approved Codes of Practice (ACOP).
ACOPs is the practical interpretations of the law, issued by the HSE following approval by Secretary of State. They can offer advice on good practice. They have a special legal status - courts can use them to determine whether a person has acted within the law - failure to comply with these minimum standards will be used as evidence of a breach of legislation. The defendant must prove that the measures taken were equal to or better than those suggested by the ACOP.
For example, ACOPs to the Workplace (Health, Safety & Welfare) Regulations 1992.
Enforcement authorities
The provisions within HASAWA can be enforced by the HSE, a local authority, or other bodies which are empowered by legislation for enforcement of health and safety laws. For example, the Civil Aviation Authority are one of the enforcing authorities responsible for regulating and enforcing health and safety at airports.
The Health and Safety (Enforcing Authority) regulations 1998 provided the power for local authorities, such as your local council, to enforce the provisions under HASAWA. The regulations provide specific cases where the local authority would act to enforce the relevant provisions. Where an area is not mentioned specifically under the regulations, the enforcing authority will be the HSE.
Inspections
Workplace inspections bridge the gap between the enforcing authorities and the company or business which is subject to HASAWA or other industry relevant specific legislation. While any employer could have an inspection, HSE have stated that they mainly target those in risk heavy sectors and those who have been brought to their attention.**
Powers of inspectors include but are not limited to; enter premises at any reasonable time; bring a constable or other authorised persons; examine, investigate & require premises to be left undisturbed if necessary; take samples & photographs; dismantle & remove equipment or substances; examine documents and records seize, destroy or render harmless any article or substance; or issue enforcement notices & initiate prosecution.
What will the inspectors do if something is wrong?
When an inspector finds something wrong at your workplace and the relevant enforcement authority decides action needs to be taken, they have a few different options to ensure a compliance:
Notices
- An inspector could write to you and provide you with a notice of contravention; this document highlights that you have broken the law in a serious manner. In the event that you have been provided with this notice, you will be required to pay for the inspectors visit.
- The enforcing authority can serve improvement or prohibition notices. Improvement notices are used to stop the continued violation of health and safety obligations, or where the authority expects a breach of the law in the future. Alternatively, where the enforcing authority considers an activity to be a serious risk, they may provide a prohibition notice which completely stops the activity until the risk has been diminished.
Fee for intervention
- To deter businesses or individuals from breaking the law there is a ‘Fee for Intervention’ which requires those in breach of the law to pay the HSE an hourly rate for the time which they spend rectifying the issues at the workplace.
- The current hourly rate can be found at HSE: Fee for Intervention - What is FFI?
Criminal Prosecution
- If you are not complying with HASAWA and other specific pieces of legislation, you will likely be committing a criminal offence. You may receive advice, notices or be prosecuted depending on your circumstances. Imprisonment or fines can be issued if the requirements of the notices have not been complied with.
Liability outside of HASAWA
Liability for your company’s health and safety obligations does not stop at HASAWA – as an employer you will have a ‘duty of care’ which includes providing a safe place of work for your employees. Where an employer falls foul of this duty an employee could attempt to bring a negligence claim. For more information on an employer’s duties to their employees and negligence claims, please consider getting specific legal advice.
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* This document contains general information and guidance only and may be superseded and/or subject to amendment without further notice. Aviva has no liability to any third parties arising out of Aviva Risk Management Solutions’ (ARMS) communications whatsoever (including Loss Prevention Standards), and nor shall any third party rely on them. Other than liability which cannot be excluded by law, Aviva shall not be liable to any person for any indirect, special, consequential, or other losses or damages of whatsoever kind arising out of access to, or use of, or reliance on anything contained in ARMS’ communications. This page is not intended to cover every risk, exposure or hazard that may arise and Aviva recommend that you obtain specific advice relevant to the circumstances.