The Health and Safety at Work 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 page 19) was not asked to consider the HSWA but nevertheless amendments to the Act have been made and there will be further changes when regulations made under the Deregulation Act 2015, providing for the scrapping of health and safety rules for some self-employed workers, come into effect (see Chapter 12).

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. It 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).

The Löfstedt review of health and safety legislation, Reclaiming health and safety for all, (see page 19) 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 places general duties on everyone “at work” including the self-employed, and Section 53 of HSWA gives a broad definition of a self-employed person.

The government’s Deregulation Bill gained Royal Assent on 26 March 2015 and became the Deregulation Act 2015. It was to have scrapped health and safety rules for self-employed workers working outside a list of “prescribed activities”. A late amendment to the Bill means that regulations may now seek to ensure that all self-employed people who pose a risk to health and safety will retain their duties under section 3(2) of the Health and Safety at Work etc Act 1974. The regulations need approval of both houses of Parliament before coming into effect (see Chapter 12). The Department for Work and Pensions explained that the Act “provides the next government with the means to exempt some 1.8 million self-employed jobs in occupations that present no potential risk to others from health and safety law.”

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 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 advises safety reps concerned about a product that has been brought into the workplace from outside to request information under this section and check it against HSE guidelines.

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 include the following:

• 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 sets out the circumstances in which a company director, manager, secretary or other similar officer can be prosecuted; and

• Section 40 requires employers accused of breaches of health and safety law to prove that it was not “reasonably practicable” (see page 13 above) to do more than was done to satisfy the duty of care.

Section 47 deals with civil liability and was amended by the Enterprise and Regulatory Reform Act 2013. As a result of these amendments, since 1 October 2013, employers no longer have strict liability for the health and safety of their workers, overturning law that has been in place for more than 100 years, since 1898.

Strict liability means that an employer is automatically responsible for a breach of health and safety law, regardless of whether the breach was their fault. The basis for strict liability in the workplace is that employers hold all the cards: they have a monopoly on knowledge as to safety risks, as well as the means of controlling those risks; they also have the deepest pockets and stand to benefit from their capital investment in the business. For all these reasons, under a small number of workplace regulations before the law changed, employers were treated as strictly liable for workplace injury. In other words, any employer who breached those regulations was liable for damages in a civil claim for personal injury, even if they could demonstrate that they took all reasonable steps to try and prevent the incident.

The amendment means that workers can no longer rely on an employer’s breach of health and safety law to win a personal injury claim. Instead they have to provide proof of negligence, i.e. show that the breach was the employer’s fault using the common law (see page 23).

The change arose from Professor Löfstedt’s review of health and safety law (see page 19) but, as a general union Unite health and safety briefing explains, all that Löfstedt recommended was a “review” of the impact of strict liability in health and safety regulation. Instead, there was no review and the government simply made the change, without consultation. “The government” says Unite, “has effectively removed the right of injured people to rely upon breaches of health and safety regulations when bringing a legal claim.”

Löftstedt himself expressed concern that the amendment went much further than he had recommended. It is important to note that this change to the law only applies to accidents and industrial disease that occurred on or after 1 October 2013. For ill or injured workers whose injury or disease “occurred” before the October cut-off date, the previous law will still apply.