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Having watched the video above, can you answer this question?
The law is made in two different ways, i.e. there are two sources of law – common law or statute.
Statute law takes priority over common law and may be enacted to address a perceived inequity in the common law.
Common law often aids the interpretation of statute law as terms are debated in the courts based on the facts of a real case.
Historically this meant law that was not local but was common to all of England. More usually, the phrase means a law that is not the result of legislation. Instead, court decisions establish common law through precedents (also known as ‘case law’).
Under common law, employers have a legal duty to provide…
Or legislation, is law made by Parliament as an ‘Act of Parliament’, or a statutory instrument (e.g. Regulations) made under powers within an Act of Parliament.
The framework of criminal health and safety legislation in the UK is illustrated in the diagram.
Click on the info icons for brief summaries.
In statute law, there are different levels of legal duty;
To explore this, see if you can figure out the level of legal duty from the summary information provided.
Don’t worry; you’ll get to see the correct answers before moving on.
The law is divided into two branches (or types) – civil and criminal, which have different purposes. An incident may give rise to both civil and criminal consequences.
There are some critical differences between criminal law and civil law.
See if you can figure them out.
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The HSE regulate health & safety in higher hazards sites in England and Local Authorities regulate the lower hazard sectors.
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Any breach of legislation may give rise to a prosecution in the criminal courts.
A summary offence is typically defined as an offence with a maximum sentence of 6 months imprisonment or a 5,000 pound fine for anyone offence. Thus, this is the least serious type of criminal offence and is dealt with in a magistrates court.
An indictable offence is typically defined as one that carries the maximum sentence for said offence (up to 2 years for H&S offences). Thus, indictable offences are the most serious offence and are dealt with in a crown court.
The sanctions available to a crown court are greater than in a magistrate’s court.
Company directors convicted of health and safety offences and being prosecuted can also be disqualified from being company directors.
If an employer is in material breach of health and safety law, they will have to pay for the time it takes for the HSE to identify the breach and help put things right. This includes investigating and taking enforcement action.
Suppose a person is killed at work because of how the company’s activities are managed or organised by its senior management. In that case, the organisation could be found guilty of corporate manslaughter or homicide. However, to be found guilty, there would have to have been a gross breach of a relevant duty of care.
The sanctions available to the courts include unlimited fines, publicity orders and remedial orders.
The Sentencing Guidelines for Corporate manslaughter suggests that an appropriate fine level will seldom be less than £500,000 and may be measured in millions of pounds!
Scrap metal recycling firm fined £2 million after admitting the corporate manslaughter of an employee ‘in an incident waiting to happen’.
The primary defence to criminal charges under health and safety legislation is that the particular duty has not been breached. This is a matter of fact for absolute duties but arguable for those duties qualified by terms such as ‘so far as is reasonably practicable’, ‘reasonable’ or ‘practicable.’
Note: the onus of proving that the duty has been fulfilled rests with the accused, not the prosecution.
In some cases, it may be possible for the accused to argue that he is not the duty holder (e.g. an employer or a person who has control of premises).
When an employee is injured at work and seeks to make a personal injury claim, the employee may sue under the tort of negligence. A tort is a ‘civil wrong’ and is to civil law as a crime is to criminal law.
Negligence may be explained as careless conduct injuring another. For the injured party (claimant) to succeed in a negligence claim, he must prove:
It might help to think about the concept of proving negligence as a three-legged stool. To succeed with a claim, the claimant needs to keep all three legs intact (the stool remains stable).
To defend against a claim, the defendant needs to knock away one or more of the legs (the stool topples).
Click on the i symbols for summary information.
In the first instance defences against negligence rely on disproving any of the three steps outlined above, i.e.
In addition, the following may also be used as a defence:
Contributory negligence arises when the claimant’s own carelessness, or disregard for personal safety, contributes to the injury or loss which arises partly because of the claimants own fault and partly because of the fault of another (the defendant).
Damages recoverable in respect of the claim will be reduced to the extent the court thinks fair, having regard to the claimant’s share of responsibility for the damage.
Vicarious liability is a legal liability imposed on one person making them liable for civil wrongs committed by another.
With regard to a personal injury claim for an accident in the workplace if an employee, acting in the course of normal employment injures another employee, the employer (not the employee who injured another) will be held vicariously liable.
Have a read of these case summaries and see if you can determine the outcomes.
As an alternative to suing for negligence, new or expectant mothers can sue for damages caused by breaches of regulations 16 or 17 of the Management of Health and Safety at Work Regulations 1999.
This may provide a more straightforward course of action as these statutory duties are more specific than the general duty of care.
Please I would love to know the appropriate way to answer this questions with 8 answers and their examples, thus:
“What are the main common law duties of an employer AND give an example of how EACH can be met. (8)?’.
This style of question is being phased out by NEBOSH, to be replaced by the more research-centric open book question style. We’ve kept them in the course content though, more as exercises than exam question practice.
With that said, to answer this question, a good approach would be to use two columns. Column 1 for the common law duty and column 2 for the example of how the duty could be met. See below for an example.
provision of safe and suitable plant and equipment | by purchasing suitable equipment for the work at hand and carrying out regular maintenance checks on it
provision of safe systems of work, with adequate supervision and instruction | by developing method statements for safety-critical tasks and ensuring employees understand them via appropriate workplace training
provision of safe premises, including safe access and egress | by ensuring there is an adequate number of fire exits and that they are not blocked by equipment etc.
provision of safe and competent employees | by putting all new starters through a comprehensive induction training programme and providing regular refresher training where necessary.
The way the points would have worked for this type of question would be 1 point for the common law duty and 1 point for the example. So, 4 common law duties would be required, along with an example for each in order to get the full marks available.
Hope that helps,
Wow! Thanks so much for this masterpiece, Adam. This is really helpful and insightful.