The Health and Safety at Work Act 1974

This year, 2014, marks the 40th anniversary of the Health and Safety at Work etc Act 1974 (HSWA). The Act 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 are proposals for further changes, for example, the proposal to exclude millions of self-employed people from health and safety law (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).

An independent review of health and safety legislation was commissioned by the Department for Work and Pensions (DWP) and chaired by Professor Ragnar Löfstedt The results were published in November 2011. The Löfstedt review: Reclaiming health and safety for all, 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. Section 53 of HSWA gives a broad definition of a self-employed person.

The government’s Deregulation Bill was published on 1 July 2013. Among other provisions, it removes self-employed workers “who pose no risk to others” from the scope of the HSWA and covers all self-employed workers who are not on a prescribed list of occupations. For further details of this proposal, please see Chapter 12.

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 a product that has been brought into the workplace from outside, information should always be requested under this section and checked 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 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 no longer have a strict liability for the health and safety of their workers, for the first time 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. This means that workers can no longer rely on an employer’s breach of health and safety law to win a personal injury claim. They have to provide proof of negligence, i.e. that the breach was the employer’s fault.

General union Unite said in a health and safety briefing: “Professor Löfstedt, in his review of health and safety, identified ‘potential unfairness’ that arises in his view where health and safety at work regulations impose a strict liability on employers. Professor Löfstedt recommended that regulatory provisions which impose strict liability should be reviewed. No review took place. Instead the government, without any consultation, inserted a clause in the Enterprise and Regulatory Reform Act 2013 which became law on 1 October 2013. Section 69 of Enterprise and Regulatory Reform Act 2013 amends Section 47 of the HSWA, meaning that the government have effectively removed the right of injured people to rely upon breaches of health and safety regulations when bringing a legal claim.”

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 himself 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.”

Unite says that this change means that health and safety legislation has been weakened and an injured person will have to prove their claim using common law negligence, which will make their case more difficult. Rather than being able to rely on a breach of the regulations as giving rise to civil liability, with employers having to show what steps they had taken to protect the employee, the burden is now on the employee to prove that their employer was negligent and caused their injury.

It is important to note that this change to the law only applies to accidents and industrial disease occurring on or after 1 October 2013. For ill or injured workers whose injury or disease “occurred” before the October cut-off date, the old law will still apply.