1. The structure of health and safety law

There have been relatively few changes to the main body of health and safety legislation since publication of Health and safety law 2011. However, there have been a large number of significant and unwelcome government announcements and policy developments, which are likely to have a lasting negative impact on health and safety law and practice in the future.

The most significant policy event of this period was the publication in November 2011 of the Löfstedt review, commissioned by the Department of Work and Pensions (DWP), Reclaiming health and safety for all. The review concluded that “in general, there is no case for radically altering current health and safety legislation” which is “broadly fit for purpose”. Even so, it made a series of specific recommendations to review or repeal particular regulations, which cause significant concern to trade unionists and safety campaigners. See Chapter 12: The Löfstedt review of health and safety.

The main changes to laws and regulations impacting on the role of safety reps since last year’s edition of Health and safety law are listed below:

• The Agency Workers Regulations 2010 came into force in October 2011. These regulations give qualifying agency workers a right to equal treatment with comparable permanent employees over a range of areas. In particular they improve the legal position of agency workers who are pregnant or breastfeeding (see Chapter 3);

• In November 2011, changes to the law on driving with insulin-treated diabetes came into force, through the Motor Vehicles (Driving Licences) (Amendment) Regulations 2011. These changes make it possible for an insulin-treated diabetic to hold a Group 2 driving licence provided the condition is properly controlled and monitored (see Chapter 5: Driving) .

• In April 2012, the Legal Aid, Sentencing and Punishment of Offenders Act became law. The Act has changed the rules governing the funding of no-win-no-fee personal injury litigation, making it much harder for workers to fund court actions for personal injury resulting from work accidents, illness or disease (See Chapter 7).

• In April 2012, the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) were changed to increase the threshold for reporting workplace injuries from three to seven days. Details of the change are provided in Chapter 10: Reporting.

• In April 2012, the law on driving licence standards changed for Group 2 drivers (drivers of heavy vehicles, including medium to large lorries and buses) with the enactment of the Motor Vehicles (Driving Licences) (Amendment) Regulations 2012. The regulations introduce more frequent health testing for these drivers. With effect from the first new photo card issued after January 2013, Group 2 drivers will be assessed every five years, irrespective of age. See Chapter 7: Driving.

• In April 2012, the Control of Asbestos Regulations 2012 became law, replacing the Control of Asbestos Regulations 2006. The change is intended to rectify non-compliance by the UK with EU law. Although a new set of regulations has been enacted, in practice the new regulations are very similar to the regulations they replace. No fundamental changes have been made to the regime for controlling asbestos (See Chapter 6: Asbestos).

The Health and Safety at Work etc Act 1974

The Health and Safety at Work etc Act 1974 (HSWA) is the core piece of legislation that reps need to be familiar with in order to be able to carry out their functions effectively. The Löfstedt review was not asked to consider the HSWA and the Act will remain unchanged by any of Löfstedt’s recommendations.

The HSWA aims to ensure that virtually all workers in all occupations are protected by health and safety legislation. The Act provides a broad framework for the regulation of health and safety through one comprehensive, integrated system of law.

The HSWA is written in very general terms and the duties on employers are qualified with the words “so far as is reasonably practicable”. This means that employers can argue that the cost of safety measures is not justified by the reduction in risk, but it does not mean that they can avoid their responsibilities simply by claiming that they cannot afford improvements.

Most health and safety law is enforced either by the Health and Safety Executive (HSE), the regulatory body set up under the HSWA, or local authorities (See Enforcement: Chapter 2).

These are the most important sections of the HSWA:

Section 2 places a general duty on employers to ensure the safety, health and welfare at work of their employees. Employers have a duty to protect the mental as well as physical health of employees. In particular, employers must:

• provide and maintain plant and systems at work so that they are safe and without risks to health;

• make arrangements for ensuring the safe use, handling, storage and transport of articles and substances;

• provide health and safety information, instruction, training and supervision;

• maintain the place of work (where it is in the employer’s control) so that it, and access to and exit from it, is safe and without risks to health; and

• provide and maintain a safe working environment and adequate welfare facilities.

Any employer who employs five or more people is required to prepare and keep up-to-date a written statement of health and safety policy and to bring the statement to the attention of employees.

This should set out the organisation (people) and arrangements (procedures) necessary to ensure a safe and healthy place of work.

Section 2 also states that employers must consult safety representatives of recognised trade unions about the making and maintenance of health and safety arrangements and, where requested by two or more safety reps, set up a safety committee (see Chapter 4).

Section 3 places a general duty on employers and the self-employed to ensure that their activities do not endanger anybody and, in certain circumstances, to provide information to the public about any potential hazards to health and safety (for example, on construction sites).

Section 4 places a duty on anybody responsible for places of work to ensure that the premises themselves, as well as any plant and machinery in them, do not endanger people using them.

Section 5 describes the duties on employers to use the best practicable means for preventing harmful emissions.

Section 6 places duties on employers to ensure the safe installation of plant and to ensure that articles or substances supplied for work are safe when used correctly. The TUC says that whenever safety reps have a problem with any product that has been brought into the workplace from outside, information should always be requested under this section and checked against HSE guidelines to see if it is adequate.

Section 7 places duties on employees to take reasonable care to ensure they do not endanger themselves or anyone else who may be affected by their work activities.

Section 8 places a duty on everyone not to intentionally or recklessly interfere with, or misuse anything provided for health and safety purposes.

Section 9 states that an employer must not charge an employee for anything done, or for equipment provided, for health or safety purposes.

Other important sections of the Act are as follows:

• Section 20 sets out the powers of inspectors;

• Section 28 requires HSE inspectors to supply certain information on health and safety, including enforcement to employees or their representatives (see Chapter 2: Enforcement),

• Section 33 sets out the offences and penalties under the Act;

• Section 37 states that where an offence committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of a director, manager, secretary or other similar officer of the body corporate, they are also guilty of the offence; and

• Section 40 requires employers accused of breaches of health and safety law to prove that it was not reasonably practicable to do more than was done to satisfy the duty of care.

Regulations, Approved Codes of Practice and Guidance

The HSWA is an “enabling Act”. This means it creates broad rights and duties under which more detailed health and safety regulations, including those implementing European directives, are made to accommodate particular workplace risks as and when they are identified. For example, in the case of hazardous chemicals, the HSWA sets out the broad, general duty on employers to maintain places of work so that they are safe and without risks to health. Detailed requirements concerning chemicals and other hazardous substances are then set out in the Control of Substances Hazardous to Health Regulations 2002 (see Chapter 6).

Health and safety law works by adopting simple key concepts such as risk assessment (see Chapter 3). The emphasis must always be on examining the work process to find the best way to prevent harm. In particular, it is a breach of health and safety law for an employer to move straight to PPE without considering other ways of eliminating or reducing risk to health and safety.

In some cases, the regulations contain an absolute prohibition on exposure to a particular hazard in any circumstances. For example, in relation to noise, as well as stipulating the control measures an employer must take to limit exposure to noise, the Control of Noise Regulations 200[2] contain an absolute prohibition on exposure to noise above the Exposure Limit Value (ELV). If the ELV is exceeded, employers must reduce exposure to below that level and prevent it happening again (See Noise: Chapter 7).

Health and safety regulations are legally binding. Approved Codes of Practice (ACOPs) are generally issued with regulations to give practical guidance on complying with the law. Failing to follow an ACOP is not an offence, but to avoid prosecution for infringement of health and safety law, an employer will be expected to show that equally effective methods have been adopted, matching the effectiveness of the ACOP.

Guidance is often issued giving advice on how to comply with the regulations. In addition, guidance notes set out safe procedures to be followed when using particular substances or pieces of equipment, for example. They are not legally binding but show good practice.

All ACOPs and Guidance are freely downloadable from the HSE’s website at www.hse.gov.uk.

New regulations

New health and safety regulations generally come into force on one of two “commencement dates” each year, 6 April and 1 October.

Directors’ duties

Individual directors do not have explicit legal duties under the Health and Safety at Work Act (HSWA). Instead, duties are generally imposed on “employers”, meaning the company. Only Section 37 of the Act, which sets out the circumstances in which a company director can be prosecuted, imposes an implicit duty on directors to take action if they are aware that their company is committing an offence and are aware of reasonable and practicable steps that can be taken.

Unions want the HSWA amended so that inspectors can serve improvement notices on directors, with prosecution under Section 37 if they fail to comply. Directors are the most powerful individuals in a company and decide on the level of resources put into safety. They make decisions on staffing, training, instruction, safety equipment and the priority given to safety within the organisation. Unions believe that without such legal duties, many companies will continue to breach health and safety law.

In 2007, the Court of Appeal confirmed that it is not necessary for a director or senior manager to be aware of the circumstances that resulted in the company committing an offence in order to be prosecuted for neglect under Section 37 (R v E [2007] EWCA Crim 1973).

Very few cases are brought each year under section 37. In 2009, former chair of the Acas employment advisory service Rita Donaghy’s report on the causes of deaths in the construction industry, One death is too many, recommended that “there should be positive duties on directors to ensure good health and safety management through a framework of planning, delivering, monitoring and reviewing.” The TUC repeated its call for an express statutory duty on company directors to protect worker health and safety, in its submissions to the Löfstedt review. However, the narrow remit of the Löfstedt review, limited to looking into the scope for “reducing the burden of health and safety regulation on business” meant that positive changes to regulation to improve safety could not be considered. Even so, the HSE has reportedly not ruled out supporting the introduction of such a duty in the future.

Common law

Common law is law developed through legal cases rather than by Acts of Parliament. Breaches of statutory duties, that is to say, duties contained in Acts of Parliament or regulations that are enforceable by regulators, may result in civil or criminal liability.

It is a criminal offence to break health and safety law. However, workers may also be able to bring a civil action against an employer for compensation where physical or psychiatric injury has resulted from the employer’s negligence.

The most important common law duty with regard to health and safety is the duty of care. Employers have a duty to take reasonable care to protect their employees and their immediate family from the risk of foreseeable injury, disease or death at work.

If employers know of a health and safety risk (or should have known, based on the current state of knowledge at the time of the relevant incident) they will be liable if an employee is injured, killed or suffers illness as a result of the risk and they failed to take reasonable care. This duty of care is important where there is no specific statutory regulation, such as when dealing with repetitive strain injury (see Chapter 7), or stress, bullying and violence (see Chapter 11).

A landmark ruling in 2012, Chandler v Cape PLC [2012] EWCA Civ 525, decided that in some circumstances, a parent company will owe a duty of care for the health and safety of workers employed by its subsidiary. According to the Court of Appeal, this duty can arise where:

• the businesses of both parent and subsidiary are in a relevant respect the same;

• the parent has (or should have) superior knowledge on some relevant aspect of health and safety in the particular industry;

• the parent knew (or should have known) that subsidiary’s system of work was unsafe; and

• the parent knew (or should have foreseen) that the subsidiary or its employees would rely on the parent using its superior knowledge for the employees’ protection. It is not necessary to show that the parent routinely intervened in the subsidiary’s health and safety policies. It may be enough to show that the parent has a practice of intervening in the subsidiary’s trading operations, for example, production and funding issues.

Although based on its own particular facts (especially the extent of involvement by the parent in the affairs of the subsidiary) this judgment may prove useful to an ex-employee of a subsidiary who wants to bring a claim in circumstances where the subsidiary is insolvent or no longer exists. This is a common problem for victims of long latency diseases, i.e. where the symptoms typically do not emerge until many years after the exposure. This particular case concerned a victim of asbestosis, and the facts are set out in Chapter 6: Asbestos.

Statutory obligation to display health and safety poster

Employers must display a health and safety poster prominently in the workplace. The form it must take is prescribed by the Health and Safety Information for Employees (Amendment) Regulations 2009. There is also a statutory leaflet presenting clear advice about worker rights and responsibilities and explaining how to get further advice. Organisations must switch to the new leaflets and posters no later than 5 April 2014.

Employers still using the old poster after 6 April 2009 must make sure it is legible and keep the addresses of the enforcing authority and the Employment Medical Advisory Service (EMAS) up to date.