At a fundamental level, employers are required to provide:
• safe and suitable plant and equipment
• safe systems of work, with adequate supervision and instruction
• safe premises, including safe access and egress
• safe and competent employees
The basis of British health and safety law is the Health and Safety at Work Act, which is known as primary legislation and sets out the general duties which employers have towards employees and members of the public etc., and employees have to themselves and to each other.
Many (but not all) of these duties are qualified by the principle of ‘so far as is reasonably practicable’. This means an employer does not have to take measures to avoid or reduce the risk if they are technically impossible or if the time, trouble or cost of the measures would be grossly disproportionate to the risk.
What the law requires is what good management and common sense would lead employers to do anyway, that is, to look at what the risks are and take sensible measures to tackle them.
The Management of Health and Safety at Work Regulations is a type of secondary legislation and generally makes more explicit what employers are required to do to manage health and safety.
The main requirement for employers is to carry out a risk assessment. Employers with five or more employees need to record the significant findings of the risk assessment.
Besides carrying out a risk assessment, employers also need to:
- plan for implementing the health and safety measures identified as necessary by the risk assessment;
- appoint competent people (often themselves or company colleagues) to help them to implement the arrangements;
- set up emergency procedures;
- provide clear information and training to employees;
- work together with other employers sharing the same workplace.
Other secondary legislation requires action in response to particular hazards (e.g. the Control of Asbestos Regulations), or in industries where hazards are particularly high (e.g., the Control Of Major Accident Hazards Regulations).
Where to find help and guidance for working within the law
HSE publishes guidance on a range of subjects. Guidance can be specific to the health and safety problems of an industry or of a particular process used in a number of industries.
Following HSE guidance is not compulsory and organisations are free to take other action. But if they do follow HSE guidance they will normally be doing enough to comply with the law.
Approved Codes of Practice
Approved Codes of Practice offer practical examples of good practice. They give advice on how to comply with the law by, for example, providing a guide to what is ‘reasonably practicable’. If legislation uses words like ‘suitable and sufficient’, an Approved Code of Practice can illustrate what this requires in particular circumstances.
Approved Codes of Practice have a special legal status. If organisations are prosecuted for a breach of health and safety law, and it is proved that they have not followed the relevant Approved Codes of Practice, a court can find them at fault unless they can show that they have complied with the law in some other way.
Legislation.gov.uk provides access to UK legislation online. Full texts of Acts of Parliament and secondary legislation are available on the site.
Other sources of guidance
Guidance is also available through trade unions, trade associations and independent health and safety consultants.
Types & Sources of Law
Sources of law
|Statute law||Common law|
|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.||Historically this meant law that was not local but was common to all of England. More usually the phrase means law that is not the result of legislation. Court decisions establish law through a system of precedents.|
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.
In England and Wales, the Law Commission‘s programme of codification of the criminal law included the aim of abolishing all the remaining common law offences and replacing them, where appropriate, with offences precisely defined by statute. However, neither the Law Commission nor the UK Parliament has completed the necessary revisions of the law, so common law offences still exist.
Some examples of an employers common law duties:
• provision of safe and suitable plant and equipment
• provision of safe systems of work, with adequate supervision and instruction
• provision of safe premises, including safe access and egress
• provision of safe and competent employees
Types of law
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.
|Criminal law||Civil law|
|If minimum legal standards are not met the enforcing authority may prosecute the offender in the criminal courts.||If an individual suffers a loss (e.g., injury, ill-health or death) the victim, or their dependants, may sue for compensation in the civil courts.|
Consider an accident where an apprentice carpenter cuts off his fingers using an unguarded band saw. He may well take civil action against his employer, blaming the employer for negligently causing his injury (by not fitting a guard to the saw) and seeking compensation (referred to as damages) for his loss. If the civil courts found in favour of the worker, the employer would need to claim against their employer’s liability insurance for the payment of the damages.
Criminal prosecution may also be taken by an enforcing authority such as the HSE or the Local Authority. The purpose of the prosecution would be to punish the employer (through a fine and/or imprisonment) for failing to comply with health and safety legislation, (i.e., the guarding requirements of the Provision and Use of Work Equipment Regulations – PUWER). Breaching health and safety legislation is a crime and there is no insurance against the punishment.
To avoid confusion between criminal and civil law…
The framework of criminal health and safety legislation in the UK is illustrated below:
Health and Safety at Work Act
The Health and Safety at Work Act is still the main health and safety legislation in the UK. It is an Act of Parliament (primary legislation) that prescribes general duties to all at work, regardless of the work activity or context. Failure to comply with a duty under the Act is a criminal offence which may be punished by fine or imprisonment.
Section 15 of the Health and Safety at Work Act enables the relevant Secretary of State to make health and safety regulations. Regulations (statutory instruments / secondary legislation) are usually:
- more detailed than the general duties of HASAWA
- problem specific (e.g. noise, hazardous substances)
- prompted by European Directives
- intended to protect employees at work
Failure to comply with a Regulation is a criminal offence which may be punished by fine or imprisonment or warrant the service of an Improvement notice to obtain compliance.
The Management of Health and Safety at Work Regulations are an example of health and safety regulations.
Approved Codes of Practice (ACoP)
An Approved Code of Practice (ACoP) gives practical advice on how to comply with the law.
If the advice in the ACoP is followed compliance with the law is assured in respect of those specific matters on which the ACoP gives advice.
The ACoP has special legal (or quasi-legal) status. In a prosecution for a breach of health and safety law, if it is proved that a relevant provision of the Code was not followed, compliance with the law in some other way must be proved.
The Workplace (Health, Safety and Welfare) Regulations; and the Provision and Use of Work Equipment Regulations (PUWER) are both supported by Approved Codes of Practice
Following guidance is not compulsory and other action may be taken. Following guidance will normally be enough to demonstrate compliance with the law.
Health and safety inspectors are likely to refer to guidance as an illustration of good practice.
The Health and Safety (Display Screen Equipment) Regulations; and the Manual Handling Operations Regulations are both supported by guidance documents.
Levels of statutory duty
Duties in health and safety law may be absolute (i.e. must be done) or may be qualified. The two major qualifications of health and safety law are those imposed by the phrases ‘practicable’ and ‘reasonably practicable’.
Usually preceded by the word ‘shall’ an absolute duty must be complied with. The employer has absolute duties to prepare a safety policy and to undertake risk assessments.
If a duty applies so far as is ‘practicable’ it is a less onerous duty than an absolute one. Practicable means feasible in the light of current knowledge and invention, i.e. if it can be done it must be done.
Reasonably practicable duties
Reasonably practicable requires the degree of risk (likelihood x severity) of a particular activity or environment to be balanced against the costs (time, trouble and physical difficulty) of taking measures to avoid the risk.
The greater the risk, the more likely it is that it will be reasonable to go to very substantial expense, trouble and invention to reduce it.
If the consequences and the extent of a risk are small, the same substantial expense would be considered disproportionate to the risk and it would be unreasonable to have to incur them to address a small risk.
The size and financial position of the employer are not taken into account in consideration of what is ‘reasonably practicable’.
HSE’s Guidance to their inspectors regarding ‘Reasonably Practicable’
This section sets out the approach that the Health & Safety Executive (HSE) use to evaluate risks.
This is guidance to HSE’s own staff about what they should expect to see in dutyholders’ demonstrations that the risk has been reduced ‘as low as reasonably practicable (ALARP)’; in those situations where the work activity is unusual (i.e. good practice is not yet established) or where there is a risk of a disaster (e.g. petrochemical and nuclear installations).
- Principles and guidelines to assist HSE in its judgements that duty-holders have reduced risk as low as reasonably practicable
- Assessing compliance with the law in individual cases and the use of good practice
- Policy and guidance on reducing risks as low as reasonably practicable in design
- HSE principles for Cost Benefit Analysis (CBA) in support of ALARP decisions
- Cost Benefit Analysis (CBA) Checklist
- ALARP “at a glance”
The possible outcomes of breaking health and safety law
The enforcement of health and safety depends on the main activity undertaken. The Health and Safety Executive typically enforces at higher risk workplaces such as construction sites and factories. The Office of Rail and Road (ORR) enforces on the railways. Local Authorities (usually Environmental Health Officers) enforce at lower risk premises such as retailers, offices etc.
All authorised inspectors have the same powers, regardless of the area of enforcement. Inspectors can:
- enter any premises for the purposes of enforcing health and safety law without permission or prior notice, at any reasonable time or at any time if dangerous;
- take a police constable with them if they have reasonable cause for thinking they might be seriously obstructed;
- take any other person authorised by their enforcing authority, such as a specialist, and any equipment needed;
- order that areas be left undisturbed; take measurements, photographs and samples, carry out tests on, and/or confiscate articles and substances have them made harmless, by destruction if necessary;
- inspect and take copies of relevant documents and interview and take written statements from anyone they think might give them information relevant to their examination or investigation.
Inspectors have a range of enforcement options available including:
- Simple Cautions;
- Improvement Notices;
- Prohibition Notices; and
The best option(s) will be chosen in each case. There is no hierarchical escalation route from simple caution to prosecution.
Based on the level of risk and level of management cooperation an inspector may deal with a situation informally by verbal advice or an explanatory letter. This is known as a simple caution. Provided agreed actions are completed on time no formal action will be taken.
An improvement notice may be served whenever health and safety legislation is being contravened. It will specify the breach of legislation and may specify a means of complying. It has to allow a reasonable time (minimum 21 days) to complete any specified works. Any appeal must be made to an Employment Tribunal with 21 days of the date of service. The requirements of the notice would be suspended until the appeal was heard. The Employment Tribunal may uphold, cancel or vary the notice as a consequence of the appeal.
A prohibition notice may be issued when the inspector considers that there is a risk of serious personal injury. The notice prohibits the carrying on of the work activity giving rise to the risk of injury. If the risk of injury is imminent, the notice must take immediate effect and stop the work activity at once. If not, the notice is deferred, specifying the time by which the work activity must cease. Any appeal against a prohibition notice must be made to an Employment Tribunal with 21 days of the date of service. The notice would stay in effect until the appeal was heard.
Any breach of legislation may give rise to prosecution in the criminal courts (i.e., magistrates court or crown court). The sanctions available to a crown court are greater than a magistrate’s court. Both courts can issue unlimited fines, but crown courts can issue custodial sentences of up to 2 years, whereas magistrates courts can issue custodial sentences of up to 6 months. Company directors convicted of health and safety offences, as well as being personally prosecuted can also be disqualified from being Company Directors.
The enforcement of health and safety depends upon the main activity undertaken at a place of work. The HSE typically enforces at higher risk workplaces such as construction sites and factories. Local Authorities (Usually Environmental Health Officers – EHO’s) enforce at lower risk premises such as retailers, offices and warehousing.
Inspectors have a range of enforcement options and tools available including:
A simple caution is a means for dealing with low-level, mainly first time offending when specified public interest and eligibility criteria are met.
A simple caution is appropriate where:
- the offender makes a clear and reliable admission of the offence
- there is a realistic prospect of conviction if the offender were to be prosecuted
- the offender agrees to receive the simple caution
A repetition of a breach that was the subject of a simple caution will normally be treated in the same way as a failure to comply with an Enforcement Notice, i.e. with criminal proceedings.
Simple cautions are recorded and can be brought to the attention of the court where relevant to any subsequent offending.
An improvement notice may be served whenever health and safety legislation is being contravened. An improvement notice will specify the breach of legislation and may specify a means of complying. It has to allow a reasonable time (minimum 21 days) to complete any specified works.
Any appeal against an improvement notice must be made to the Employment Tribunal with 21 days of the date of service. The requirements of the notice would be suspended until the appeal was heard.
The Employment tribunal may uphold, cancel or vary the improvement notice as a consequence of the appeal.
A prohibition notice may be issued when the inspector considers that there is a risk of serious personal injury. The notice prohibits the carrying on of the work activity giving rise to the risk of injury.
If the risk of injury is imminent, the notice must take immediate effect and stop the work activity at once. If not, the prohibition notice is deferred, specifying the time by which the work activity must cease.
Any appeal against a prohibition notice must be made to the Employment Tribunal with 21 days of the date of service. The notice would stay in effect until the appeal was heard.
Any breach of legislation may give rise to a prosecution in the criminal courts.
A summary offence is typically defined as an offence that has a maximum sentence of 6 months’ imprisonment or of a 5,000 pound fine for any one offence. Thus one can say that this is the lest serious type of criminal offence.
An indictable offence is typically defined as an offence that carries the maximum sentence for said offence. Thus, indictable offences are the most serious type of offence.
Triable either way offences are offences that can be treated as either a summary offence or an indictable offence. Thus, these offences are off mid-level seriousness or are debatable. Health and safety offences are usually ‘triable either way’, this means the case may be heard in a magistrate’s court or a crown court.
The sanctions available to a crown court are greater than in a magistrate’s court. The information below shows the maximum sentences available to each court for breaches of HASAWA and health and safety regulations.
|Magistrates Court||Crown Court|
|· Term not exceeding 6 months
· Unlimited fine
|· Term not exceeding 2 years
· Unlimited fine
Company directors convicted of health and safety offences, as well as being prosecuted can also be disqualified form being Company Directors.
The best option(s) will be chosen in each case. There is no hierarchical escalation route from simple caution to prosecution.
Fees for Intervention (FFI)
The HSE operates a Fee for Intervention (FFI) cost recovery scheme. Under The Health and Safety (Fees) Regulations 2012, where there has been a ‘material’ breach of health and safety laws those responsible for the breach are liable for recovery of HSE’s related costs, including inspection, investigation and taking enforcement action.
Powers of Health and Safety Inspectors
All authorised health and safety inspectors have the same powers, regardless of the area of enforcement. Inspectors can:
- enter any premises which they think it necessary to enter for the purposes of enforcing health and safety law. The power of entry can be exercised without permission or prior notice, at any reasonable time or at any time if dangerous
- take a police constable with them if they have reasonable cause for thinking they might be seriously obstructed
- take any other person authorised by their enforcing authority, such as a specialist, and any equipment needed
- order that areas be left undisturbed
- take measurements, photographs and samples
- carry out tests on, and/or confiscate articles and substances
- inspect and take copies of relevant documents
- seize any article or substance which they have reasonable cause to believe presents an immediate danger of serious personal injury and have it made harmless, by destruction if necessary
- interview and take written statements from anyone they think might give them information relevant to their examination or investigation
The Corporate Manslaughter and Corporate Homicide Act 2007
Manslaughter by individuals is a ‘common law’ crime. The case of R v Adomako (1994) sets out the current test to prove the offence. An individual commits manslaughter when he causes a death through gross negligence.
The test of whether a “company” could be found guilty of common law manslaughter was intrinsically linked to the ‘identification doctrine’. A director or senior manager (a controlling mind and will) of the company had to be found guilty, for the company to be found guilty.
There were a number of disasters in the 1980’s and 1990’s which lead to failed prosecutions for corporate manslaughter.
The Southall rail crash on 19th September 1997 resulted in 7 deaths and 151 injuries, leading to Great Western Trains (GWT) pleading guilty to contravening Section 3(1) of the Health and Safety at Work Act, and receiving a record fine of £1.5 million.
Mr Justice Scott-Baker expressed his concern regarding “a serious fault of senior management”. However, a charge of manslaughter could not succeed because no individual could be prosecuted and found guilty of gross negligence manslaughter.
The HSE commented that death or personal injury resulting from major disasters was rarely due to the negligence of a single individual but was more likely to be the result of the failure of systems controlling the risk, with the carelessness of individuals being a contributing factor.
After much lobbying to address the shortcomings of prosecutions of corporate bodies under common law the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) was introduced.
Under CMCHA, corporate manslaughter:
- can only be committed by organisations and not by individuals
- requires a breach of the duty of care under the law of negligence
- requires that the breach is a gross breach, i.e. where the conduct of the organisation falls far below what should reasonably be expected
- requires that a substantial element in the breach is the way in which the organisation’s activities are managed or organised by its senior management; and
- is committed only where death is shown to have been caused by the gross breach of duty
The sanctions available to the courts include unlimited fines, publicity orders and remedial orders.
The Sentencing Guidelines for Corporate manslaughter suggests that an appropriate level of fine will seldom be less than £500,000 and may be measured in millions of pounds.
Publicity Orders may require publication in a specified manner of:
- the fact of conviction
- specified particulars of the offence
- the amount of any fine
- the terms of any remedial order
Any specific failings involved in the offence ought to have been remedied by the time of sentencing and if not will deprive the defendant of significant mitigation.
If, the failings have not been addressed a remedial order may be used if it can be made sufficiently specific to be enforceable.
As the remedial order requires only what should already have been done the cost of compliance with the order should not be considered in setting the fine.
Defences to Criminal Charges
The main 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. 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/delict of negligence, or the tort/delict of breach of statutory duty.
Negligence may be explained as careless conduct injuring another. For the injured party (claimant) to succeed in a negligence claim, he must prove:
- That the defendant (usually the employer) owed him a duty of care;
- That this duty was breached; and
- That the claimant was injured as a result of the breach.
The Duty of Care
Prior to 1932 there was no generalised duty of care in negligence. The tort/delict was only applied in particular situations where the courts had decided that a duty should be owed, such as road accidents or dangerous goods.
In Donoghue v Stevenson (1932) Lord Atkin attempted to lay down a general principle which would cover all the circumstances where there could be liability for negligence. He said: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
The requirements that must now be satisfied before a duty of care is held to exist were established by Lord Bridge in Caparo Industries v Dickman (1990):
- foreseeability of the damage, i.e. whether a ‘reasonable person’ would have foreseen damage in the circumstances
- a sufficiently ‘proximate’ relationship between the parties (i.e. a neighbour relationship)
- it must be fair, just and reasonable to impose such a duty
Relationships that are sufficiently proximate to be deemed a neighbour relationship include:
- Employer to employees
- Employer to contractor and contractor’s employees
- Occupier to authorised visitors
The employers civil common law duty of care owed to its employees is to provide:
- A safe place of work,
- Safe plant and equipment
- Safe systems of work
- Training, supervision and reasonably competent co-workers
Breach of the Duty of Care
The duty of care is breached if the defendant has failed to exercise the reasonable care expected of a reasonable man in the circumstances.
Breach Caused the Injury
The claimant must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm and that the harm would not have occurred “but for” the negligence of the defendant.
In the first instance defences against negligence rely on disproving any of the three steps outlined above, i.e.
- The defendant did not owe the claimant a duty of care
- The duty of care was not breached (the defendant had taken reasonable care / the loss was not foreseeable / it was an ‘act of God’)
- The breach of the duty of care did not give rise to the injury
In addition, the following may also be used as a defence:
- The injury was the sole fault of the employee
- The injury was the sole fault of a third party
- The proceedings were not brought within the specified time limit (see notes on the Limitations Act below).
Historically the defence of “volenti non fit injuria” (to a willing person no injury is done) was used on the basis that certain trades were inherently dangerous and that the workers needed to rely on their own skill to keep themselves safe. Since the 1940’s the courts have been generally unwilling to accept a “volenti” defence.
A company or organisation is not expected to manage risks that could not have been identified or understood before the event. However, it is expected to identify and correctly manage the ‘reasonably foreseeable’ risks created
by its work activities.
There have been many occasions when work activities have exposed people to risks that were unknown at the time. As knowledge and understanding have increased, these risks have come to be understood. Today we would describe the same risks as being reasonably foreseeable, but it would be unfair to look back in time and retrospectively apply this term.
For example, asbestos is known to be a cancer-causing mineral that is harmful if inhaled as dust – the serious ill-health effects have been understood for decades. So, exposing a worker to asbestos dust today might be described as unacceptable because the risks are reasonably foreseeable. However, asbestos was not recognised as a harmful substance in the 1940s and 50s so the law back then would not have expected an employer to manage those risks – they were not considered reasonably foreseeable.
In most cases, reasonably foreseeable risks are those that would be recognised by a competent person working in a particular field. In some cases, they are the risks that would only be recognised by a competent technical expert. There are three knowledge levels that are helpful in determining whether a risk is reasonably foreseeable:
- Common knowledge – if any reasonable person would identify the risk associated with the work then it is reasonably foreseeable, e.g. every reasonable person would recognise the risk associated with working on
the sloping roof of a tall building.
- Industry knowledge – if a particular risk is well-known and understood in your industry then it is reasonably foreseeable. For example, putting a worker into an unsupported deep trench dug into the ground is
commonly recognised as a risk in the construction industry. The risk might not be recognised by a person who does not work in construction, but it is still considered reasonably foreseeable because workers and employers are expected to have a certain degree of
- Expert knowledge – if a risk is outside of the expected knowledge of most of the competent people working in a particular industry, then that risk might be described as not reasonably foreseeable by them. But experts are expected to recognise such risks. For example, a research chemist might be reasonably expected to understand all the different properties of the substances they were handling – even if some risks were relatively obscure and peculiar to that substance in very specific circumstances.
So you can see that, in most cases, you are expected to identify and manage reasonably foreseeable risks, i.e. those that would be recognised by a reasonable person and those that would be recognised by competent people working in your industry. In these cases, common knowledge and industry knowledge would apply.
You would not be expected to identify and manage risks that would only be recognised by experts – unless you are an expert! In which case, expert knowledge would also apply.
Reasonably foreseeable is not the same as reasonably practicable
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.
In general terms vicarious liability is a legal liability imposed on one person making them liable for tort/delicts 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 will be held vicariously liable for the losses incurred.
Tort of breach of statutory duty (TBSD) – New & Expectant Mothers
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.
TBSD may provide a more straightforward course of action as a statutory duty is likely to be more specific than the general duty of care.
Conditions to be met for breach of statutory duty
It is important to note that a breach of a statute is not sufficient on its own to prove the tort/delict of breach of statutory duty in a civil claim. The following conditions must be fulfilled:
- The statute must apply to the claimant, i.e. an employee can only sue if the statute applies to employees
- The statute must have been designed to prevent the type of injury incurred by the claimant
- The statute must have been breached. (A successful prosecution will aid the claimant’s case)
- The injury must have been caused by the breach of statute
Drag and drop the descriptive statements onto the correct side of the scale, i.e., is it part of what constitutes the risk, or part of what constitutes the cost of controlling the risk?
Over the following slides, there are several previous exam questions. An exercise including examiners feedback is provided following each question.
Attempt to answer the question first on a notepad etc. before moving on to the exercise that follows each question.