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 of health and safety legislation (see Chapter 12) was not asked to consider the HSWA but nevertheless amendments to the Act have been made and there are proposals for further changes as set out below.

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). Löftsted recommended exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others. At present, section 3 of HSWA (see below), places general duties on everyone “at work” including the self-employed. Section 53 of HSWA gives a broad definition of a self-employed person.

The government’s Draft Deregulation Bill was published on 1 July 2013. Among other provisions, it will take out self-employed workers “who pose no risk to others” from the scope of the Health and Safety at Work Act.

The government says the Draft Bill will scrap health and safety rules for self-employed workers in low-risk occupations, formally exempting 800,000 people from health and safety regulation. A TUC briefing explains that it does this by “restricting coverage of the Act to self-employed people who ‘conduct a relevant undertaking’. A relevant undertaking will be one where it is a ‘prescribed description’, or it affects, by the way it is conducted, other people by exposing them to risks to their health and safety. This does not cover the self-employed person themselves. It is not known what the ‘prescribed descriptions’ will be at the moment as this will be decided by the Secretary of State who will publish regulations on relevant undertakings.”

The TUC is opposed to the proposal and says it will create confusion. TUC general secretary Frances O’Grady said: “Taking the protection of health and safety laws away from some of the UK’s many self-employed workers — who are more than twice as likely as employees to be killed at work — will not help businesses nor grow our economy one bit. It’s a recipe for confusion as many people will now be unsure about their rights and responsibilities. The result is likely to be an increase in workplace accidents.”

The most dangerous industries like construction and agriculture have a high proportion of self-employed people. The fatality rate for self-employed workers is currently 1.2 per 100,000 as against 0.5 per 100,000 for employees.

The TUC briefing can be found at: www.tuc.org.uk/workplace/tuc-22325-f0.cfm

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 are concerned about 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 (see Chapter 7). 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.

The Enterprise and Regulatory Reform Act 2013 has amended section 47 of HSWA. The amendment means employers will no longer have a strict liability for the health and safety of their workers, for the first time since 1898, and that workers could not rely on an employer’s breach of health and safety law to win a personal injury claim, they would have to provide proof of negligence.

As a law briefing by the public services union UNISON points out: “The government justifies this amendment on the basis of a recommendation by Professor Ragnar Löfstedt in his November 2011 report Reclaiming health and safety for all. In this report Löfstedt recommended that “regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with “reasonable practicable” where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to those provisions”.

Strict liability refers to those few workplace regulations where, if the employer breaches those regulations, they will be liable in a civil claim even if they can argue they have taken reasonably practical steps to try and prevent the incident.

However, Löftstedt is concerned that the government has gone much further than he recommended. In his January 2013 report, Reclaiming health and safety for all: a review of progress one year on, he says: “The proposed amendment to the Health and Safety at Work Act reverses the current position on civil liability. This means that, unless exceptions apply, claims for compensation in relation to breaches of health and safety legislation will need to prove that the employer has been negligent. The approach being taken is more far-reaching than I anticipated in my recommendation and, if this amendment becomes law, I hope that the government will carefully monitor the impact to ensure that there are no unforeseen consequences.”

UNISON says that the change means that, rather than being able to rely on a breach of the regulations as giving rise to civil liability, so that employers then had to show what steps they had taken to protect the employee to defend the claim, the burden is now on the employee to prove their case in negligence, and that negligence caused the injury.

The briefing gives the example of a case where strict liability applied involving UNISON member Alison Dugmore (see Chapter 6, Hazardous substances). She was awarded compensation when she was forced to give up nursing after suffering a series of anaphylactic attacks as a result of exposure to latex gloves coated with corn powder. The court found in Alison’s favour and held her employer strictly liable as they had to ensure, under the COSHH regulations, that their employees were protected from harmful substances.

UNISON says it would be wrong if Alison had no way of getting compensation. Her employers had breached the regulations and Alison through no fault of her own had suffered significant injury and lost her career as a result. It points out that strict liability was introduced over a century ago to recognise that there was a very different balance of power between employee and employers. And it says the amendment will restrict access to justice.