Foundations in health and safety
From this post is is hoped that readers whos are studying for a NEBOSH certificate will gain an understanding of what will be required for the NCG1 paper, this post is intended to help1.1 Outline the scope and nature of occupational health and safety
1.2 Explain briefly the moral, legal and financial reasons for promoting good standards of health and safety.
1.3 Outline the legal framework for the regulation of health and safety
1.4 Describe the roles and powers of enforcement agencies, the judiciary and externalagencies
1.5 Identify the nature and key sources of health and safety information
1.6 Outline the key elements of a health ansafety management system.
Content
1.1 The scope and nature of occupational health and safety
Health, safety, welfare and environmental protection
- Health is concerned with the soundness of our physical body and our mind. That is, a condition of our mind and body.
- Safety is defined as 'free from harm, injury and risk'. That is, a condition we are in, where the wellbeing of our body and mind are not in danger of being adversely affected.
- Welfare is a collection of things that are put in place to ensure our wellbeing (our health) is looked after.
- Environmental protection is the guardianship we use to protect the environment, that is, the air, water and earth that surrounds us.
Accidents, dangerous occurrences, near misses, and work-related ill health (physiological and psychological)
- Accidents can be defined as undesired, unplanned events in a series of planned events. The adverse consequences are, in the majority of cases immediate, but can be longer term. These consequences can have both physiological and psychological effects.
- Dangerous occurrences are events that have the ability to cause injury and damage. The consequences can be anything from minor to disastrous.
- Near misses, are dangerous occurrences that, in the incident in question, did not lead to an accident or dangerous occurrence.
- Work related ill-health happens when our protective shields of welfare and environmental protection fail to protect us. Ill-heath, like an accident, can have immediate consequences, but more likely will have long-term consequences often referred to as slow injuries.
Hazard and risk
- Hazard is something that has the inherent ability to cause harm. It can be animal, vegetable, mineral or abstract. It is quantitative; for example, slightly hazardous or very hazardous. Examples: a human, a poisonous plant, asbestos, or threatening behaviour.
- Risk is the possibility of exposure to a hazard. Often measured as: Severity of hazard x probability of exposure
1.2 The moral, legal and financial reasons for maintaining and promoting health and safety
Civil law and criminallaw (purpose, burdens of proof and remedies)
Civil law is the law that remains in areas where the state, through Acts of parliament, has not penetrated or intervened. It is law based upon the determination of particular cases in which judgements are made in courts, or on the formulation of general principles.The purpose of civil law is to compensate a person or organisation (the pursuer) who brings an action for damages against another (the defendant) who has been found guilty of negligence. The person who has suffered the injury or damage must start the action.
The burden of proof is based on 'a preponderance (balance) of probability' and the remedy is reparation or financial compensation.
Criminal law is concerned essentially, with those offences that the state seeks to prevent. These offences can be against the state, against persons or against property.
The burden of proof is 'beyond all reasonable doubt' and it is for the prosecutor to prove this.
A person or organisation found guilty under criminal law of an offence can have penalties imposed. These penalties can befines or imprisonment.
Common (Civil) Law
The evolvement of acceptable customs
We,that is, The people living today, are a product of an evolved civilisation going back through history to a time when groups of people lived in isolation. As communal groups increased, it was necessary that members of the communities developed culturally acceptable standards of behaviour compatible with living together. This is true of all animals e.g. rats, elephants, tigers, humans, monkeys or apes etc.Eventually the various types and forms of living creatures, of which man is one, developed customs, practices and procedures which allowed the groups to live in comparative peace and harmony, both within the groups and indeed in co-habitation with other groups.
As groups enlarged and developed, leaders or councils were elected and they in turn appointed people to make judgements about disputes within the group. This has evolved until today where we have sheriffs and judges who make decisions through our civil courts settling disputes between various individuals and/or factions.
When decisions are not well received within a society, wise leaders pay attention to this, so that if a similar type incident arises, decisions will be based on how their previous decisions were accepted.
Today we call such action 'Court Precedents'.
There are many former court cases, which have set precedents and are used by sheriffs and judges when making decisions on cases. It should be noted that, when a superior court makes a judgement, all inferior courts must take the decision into account in making their judgements.
From this method of precedents and evolving law based on cultural acceptable standards, we developed what is known as 'Common Law'.
At work under common law there are five main duties of care that employers owe to their employees. These are to give them:
(i) A safe place of work
In complying with this duty, we must consider the complete 'goldfish bowl' in which people work. That is, the condition of the following:
- Grounds, buildings and layout.
- Machinery.
- Safe storage, handling and use of articles and substances.
- Utility services (electricity, gas, water, pneumatics, hydraulics etc).
- Environment (temperature/dust/fumes/humidity/lighting/noise/quality of air etc).
Consider: vehicles, passageways, stairs, ladders, scaffolds, special needs of people, emergency arrangements etc.
(iii) Adequate (fit for purpose) plant, machinery and tools
Consider: fitness for purpose, maintenance, controls, ergonomics (both physical and psychological) etc.
(iv) Safe systems of work
Consider: associated hazards, risks, dangers, compatibility with human abilities and limitations etc.
(v) Competent work-mates
Understand that work-mates are not only members of peer groups of workers but also include:
- Supervisors, managers and directors whose acts or omissions ca_n affect others
- Contractors who become work-mates.
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One of the basic problems with common law is that before a person can proceed ith a civil action for injury or damage the injury or damage has to be_ sustained.Hence the reason the state brings in statutory laws.
The size of the health and safety problem can be seen in the following chart:
| Key annual figures 2010/11 | |
| Ill Health | 1.2 million working people were suffering from a work-related illness. |
| Occupational Cancer Over 5000 casesestimated each yearfrom the constructionindustryOther | |
| Occupational Asthma About 30 000 people currently report they are suffering from breathing or lung problems caused or made worse by their work 2321 people died from mesothelioma in 2009 and thousands more from other occupational cancers and diseases such as COPD. |
|
| Injuries | 171 workers killed at work. |
| 115 000 injuries were reported under RIDDOR. | |
| 200 000 reportable injuries (over 3 day absence) occurredoccurred, according to the Labour Force Survey, a rate of 710 per 100 000 workers.. | |
| Working Days Lost | 26.4 million working days were lost due to work-related illness and workplace injury 15 days per case of work-related illness or workplace injury. |
| Enforcement | 551 offences were prosecuted by HSE with a conviction rate of 94% |
| 129 offences were prosecuted by local authorities with a conviction rate of 97% | |
Source: HSC Health and Safety Statistics 2010/11.
It speaks for itself when reflecting on these figures that there is a strong moral argument in a civilised society to do all that we can to stop people's quality of life, if not life itself, being destroyed by work activities.
Cost of accidents
Justification of costs of implementing safety and health measures can be seen in terms of:
- Keeping the company on the right side of the law
- Reducing insurance claims
- Good public and industrial relations
- Looking after the good reputation of the organisation
- Improving morale within the workforce
Indirect costs can include:
- Lost time and talent of the injured employee
- Lost production and with it, the possible goodwill of customers )
- Cost of investigation with possible highlighting of other deficiencies
- Court expenditure, including possible fines etc.,
- Damage to property, plant and machinery
- Cost of industrial and/or public unrest
- Increased insurance premiums
These average indirect costs are based on random sampling.
- Three day reportable type incidents resulted in losses of................... £589.00
- First aid treatment incidents (including up to two days absence) ........ £18.00
- Damage type incidents .....................................................................£274.00
A review of first aid incidents indicates that the number of entries in first aid books tends to be around
75% of the numbers employed. Note: This does not means that 75% of the workforce requires treatment. Some employees attend for treatment more often than others.
All statistical evidence suggests that there are many more damage type incidents at work than injury incidents.
The survey did not take account of either downtime incidents or cumulative injuries, unless they were recorded in accident books. Note: Statistics have shown that on average, there are a great many more cumulative health injuries at work than physical reportable type injuries.
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Indirect costs
Using these figures we arrive at:
30 x three day incidents at £589.00 each ..........= £17,670.00
750 incidents at £18.00 each ............................= £13,500.00
Assuming that the number of damage incidents are the same as injury ones:
780 damage incidents = £213,720.00
This gives a totalcost of
Turnover costs: = £244,890.00
The only place the money to pay for accidents can come from is turnover profit.
If an organisation's turnover profit is 10%, then for every pound lost in accidents, they must turnover ten pounds.
From the figures above, the organisation would have to turnover £2,448,900
In terms of production this would be the equivalent of:
Making and selling 244,890 shirts with a wholesale price of £10.00.
Purchasing land, obtaining building permission, designing houses and then building an estate of 30 semi-detached houses and selling them.
Optimum level loss control
It is not possible to save all such losses. However if an organisation commits itself to diligently applying a total loss prevention programme, substantial savings can be made on losses that are normally just absorbed into 'overhead costs'.
1.3 The legal framework for the regulation of health and safety
Statute (criminal) lawToday much of our statute law is being brought in under the umbrella of the Regulations and Directives from the European Union. EU Regulations are directly imposed upon member states, whereas Directives set out general principals that each member state must encompass into their statute laws within an agreed time-scale.
Statute laws, when introduced by the state, will mean that those not complying with the law can be prosecuted by the state through the criminal courts, where if found guilty, the perpetrator of the
offence can be given a warning, fined or sent to prison.
Statutory law
Statute laws are Acts of Parliament such as The Health and Safety at Work etc Act 1974, together with the Regulations, Rules and Orders made within the scope of the Acts.
Modern Acts of Parliament set out principles or objectives and use specific Regulations or Orders to implement the principles/objectives.
Acts of Parliament are primary or principal legislation, whereas Regulations made under the Acts are secondary delegated legislation.By-laws made by local authorities are another example of delegated legislation. Ministers of the Crown make regulations via powers given to them by a Principal Act. Once introduced, they become statute law like the Acts of Parliament and breaches of them
constitute a criminal offence.
Most current legislation concerning health, safety and welfare and almost all of what will be future legislation originates within the European Community framework.
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Administration
The administration of the E.U. is carried out through four bodies:
- The Commission
- The Council of Ministers
- The European Parliament
- European Court of Justice
Elements of EC law
Apart from the general provisions of the Treaty of Rome (which is signed by all member states), there are three elements of European Law:-
European Regulations
-
Directives
-
Decisions
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Statutory Jaw
Statute laws are Acts of Parliament such as The Health and Safety at Work etc Act 1974, together with the Regulations, Rules and Orders made within the scope of the Acts.Modern Acts of Parliament set out principles or objectives and use specific Regulations or Orders to implement the principles/objectives.
Acts of Parliament are primary or principal legislation, whereas Regulations made under the Acts are secondary delegated legislation. By-laws made by local authorities are another example of delegated legislation. Ministers of the Crown make regulations via powers given to them by a Principal Act. Once introduced, they become statute law like the Acts of Parliament and breaches of them constitute a criminal offence.
The Health and Safety at Work etc, Act, 1974
This is the primary piece of legislation on which all of our statutory legal requirements concerning health and safety at work is based. It is an enabling Act in that it sets out objectives to be achieved rather than specific requirements.
The following sections, 2 - 9 contain the main thrust of those requirements.
Section 2
Employers must take all reasonable care to safeguard the health, safety and welfare of their employees. In particular this means providing and maintaining:- Safe plant and systems of work.
- Safe handling, storage, maintenance and transportation of articles and substances associated with work.
- Adequate selection of employees and thereafter providing sufficient information, instruction, training and supervision.
- Safe places of work including access and egress.
- Safe working environments and adequate welfare facilities
Employers must consult with employees on health and safety matters, and where requested to do so by two or more trades union appointed safety representative, set up a safety committee.
The self -employed has similar duties but do not require a written safety policy.
Sections 3 and 4
These sections impose duties of care on employers towards persons other than employees, e.g. contractors, visitors, self-employed and general public.Section 5
RepealedSection 6
Designers, manufacturers, importers, installers and those who hire out plant and/or equipment have a duty to ensure, so far as is reasonably practicable, that the article or substance for use at work is safe when being properly used.Sufficient tests etc., must be competently carried out to validate the article or substance for use at work.
All necessary information must be provided regarding the article or substance and the safeguards to be observed when using or storing it. Such information should not just be 'made available'.
Section 7 and 8
Duties are placed on employees at work to:- Take all reasonable care for their own health and safety and the health and safety of anyone who may be affected by their acts or omissions.
- Co-operate with their employers to meet legal obligations.
- Neither intentionally, nor recklessly interfere with or misuse anything whether plant, equipment or methods of work, provided by their employer to meet obligations under this or any related legislation.
Section 9
The employer is not allo ed to charge employees for anything done or provided to meet specific statutory requirements.Approved codes of practice
These are brought in to supplement statutory legislation such as Acts and Regulations.They give guidance on the general requirements and explain how the requirements can best be adequately implemented. This effectively allows standards to be kept current by altering the ACOP rather than having to amend the legislation.
Failure to comply with an ACOP is not in itself an offence, but failure is held to be proof of contravention unless the defender can show the compliance was achieved in some other way.
The test would be that the 'other way' did not in any way circumvent the element of care in the ACOP.
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Guidance notes
These are issued by the HSE as opinions of good practice. They have no legal force, but becquse of their origin would be 'persuasive' in practice with lower courts, and useful in civil cases to establish reasonable standards of care.Types of duties imposed by statute
- Absolute duty - otherwise known as 'Strict Liability'
which could lead to severe injury, imposes this duty. The words 'must' or 'shall' appear in the , )
requirement of the Act or Regulation.
- Duty to do what is 'Practicable'
- Duty to do 'So far as is reasonably practicable'
It allows a balance to be made between the cost of the action proposed (in terms of money,
time or inconvenience) against the degree of risk associated with the situation being )
considered.
The employer's duty of care and the rights and expectations of employees
The employer's duty of care toward employees is expressed in common law as providing:
- A safe place of work
- Safe access and egress to and from the place of work
- Adequate and safe plant machinery and tools for use at work
- Safe systems of work
- Competent work-mates
These duties are now embedded within statutory law in the form of The Health and Safety at Work etc., Act 1974 and Regulations made thereunder. Employees have the right to expect their employer to give all due care and attention to matters concerning their health and saf ty. That is the employer meeting both his statutory and common law duties of care.
The employer's common law and statutory duties of care
The duties of care include such items as ensuring:
- Adequate consideration is given to the selection of staff that are, or can be, developed through education and training to be able to competently carry out the type of work detailed in their job
description. - Proper consideration is given to the adequacy and maintenance of places of work, plant,
machinery, tools and systems of work. These must be maintained in conditions that are safe and free from undue risks to employees or any other persons who may be affected by work activities. - Sufficient monitoring arrangements are carried out that will identify non-conformances of or to the management systems and thereafter taking appropriate action to eliminate such non conformances.
1.4 The role and powers of enforcing agencies,the judiciary and external agencies
Criminal liabilities
The enforcement arrangements- The Health and Safety Executive (HSE) is the enforcement body of the Health and Safety Commission (HSC).
The HSE has the principle responsibility for enforcing legislation and employ enforcement officers (inspectors). For lower risk activities and premises such as offices and retail outlets, the powers of enforcement are delegated to local authority environmental departments, whose officers (EHOs) have the same powers as HSE inspectors.
Powers of inspectors
An appointed inspector can:
- Gain access, without a warrant, to a workplace at any reasonable time.
- Employ police to assist them, where necessary.
- Take equipment, etc on to premises to assist in investigations.
- Carry out examinations and investigations as deemed necessary.
- Direct that locations remain undisturbed for as long as they deem necessary.
- Take measurements, photographs and samples.
- Take statements; remove certain records and documents.
- Require facilities to assist with enquiries.
- Do anything else necessary to enable their duties to be carried out.
Where an inspector discovers what is considered to be a contravention of an Act or Regulation, they
can:
- Issue a Prohibition Notice with immediate or deferred effect. Such a notice will prohibit the activity described in it. The inspector will issue such a notice where it is considered that there is an imminent risk of serious injury.
- An appeal can be made against the notice but the notice will remain in force until the appeal is heard.
- Issue an Improvement Notice, which will specify a timescale within which the rectification of the contravention must take place.
- Appeals can be made within 21 days to an employment tribunal.This would postpone the notice until the appeal is heard.
- Prosecute any individualwho contravenes a requirement or fails to comply with a notice.
- Seize and/or render harmless any substance or article which is considered to be of imminent danger.
The Health and Safety at Work etc Act, section 33 (as amended) sets out the offences and maximum penalties under health and safety legislation.
Failing to comply with an improvement or prohibition notice, or a court remedy order (issued under the HSW Act sections 21, 22 and 42 respectively):
Lower court maximum £20,000 and/or 6 months imprisonmentBreach of sections 2 - 6 of the HSW Act, which set out the general duties of employers, self employed persons, manufacturers and suppliers to safeguard the health and safety of workers and members of the public who may be affected by work activities:
Higher court maximum unlimited fine and/or 2 years imprisonment
Lower court maximum £20,000Other breaches of the HSW Act, and breaches of 1relevant statutory provisions' under the Act, which include all health and safety regulations. These impose both general and more specific requirements, such as requirements to carry out a suitable and sufficient risk assessment or to
Higher court maximum unlimited fine
provide suitable personal protective equipment:
Lower court maximum £5,000Contravening licence requirements, or provisions relating to explosives. Licensing requirements apply to nuclear installations, asbestos removal, and storage and manufacture of explosives. All entail serious hazards, which must be rigorously controlled.
Higher court maximum unlimited fine
Lower court maximum £5,000
Higher court maximum unlimited fine and/or 2 years imprisonment
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Employment tribunals
Tribunals are part of the statutory system of law in which different tribunals are regulated by differing statutory provisions. They are not courts but are bodies established to make decisions in particular areas of law. The legal instrument that brings them into being regulates them. Employment Tribunals are chaired by a legally qualified person and normally have one member representing the CBI and one representing the TUC. The tribunal has the power to either cancel or affirm a notice. The tribunal can affirm the notice in its original form or with such modifications as the tribunal may in the circumstances see fit.Appeals against tribunal decisions are allowed on questions of law, decisions being referred back to the tribunal if it has acted improperly, exceeded it's jurisdiction or refused to hear a case.
Civil liabilities
A 'delict' is a civil wrong; it is termed a 'tort' in England. It is harmful conduct by a person or organisation that causes loss or injury to another person. It subjects the person or organisation responsible for a loss or injury to legal liability and to make reparation for the damage caused.
Delict is summed up by the maxim 'Damnum injuria datum'- loss caused by legal wrong. The three elements can be defined as:
- Damnum - loss or injury suffered by the party who has been wronged.
- Injuria - conduct which mounts to a legal wrong.
- A causative link between damnum and injuria Le.loss and injury must be directly linked to the legal wrong.
Negligence is when a person fails in their common law duty of care to another.
The three questions, which must be answered in the affirmative in order to establish liability for negligence, are:
(i) Did the defender owe a duty of care to the pursuer?Vicarious liability
(ii) Was there a breach of that duty of care?
(iii) Did the damages sustained by the pursuer result directly from the breach of duty?
Vicarious liability is where one person is held responsible for the acts or omissions of another.
Under common law, an employer is always held responsible for the acts or omissions of his employees whilst they are at work.
Courts
Civil cases in Scotland are dealt with at the Sheriff Court and appeals firstly at the Court of Session
and thereafter in the House of Lords.
Criminal cases in Scotland would normally be heard in the Sheriff Court and appeals in the High
Court of Justiciary and thereafter the Criminal Court of Appeal.
Defences
General defences that may be pleaded are:
- All reasonable action was taken.
- No duty of care was owed.
- There was no breach of duty.
- The injury/damage was too remote from the breach.
- Mistake.
- Statutory requirement i.e. the act was carried out under a statutory requirement.
- Necessity e.g. where a house on fire is demolished.
- Private defence e.g. reasonable force is used to defend oneself.
- Inevitable accident e.g. not avoidable by any reasonable action that may have been taken.
- Volenti-non-fit injuria i.e. a person cannot complain of an injury if they deliberately took the risk.
The Health and Safety Commission (HSC)
The HSC are appointed by the Secretary for State and consists of a chairperson and nine members. Three are appointed after consultation with employers' organ_isations, three after consultation with employees' organisations and two after consultation with local authorities.
It is the duty of the HSC to:
- Assist and encourage people in furthering safety
- Arrange for the carrying out of research and to encourage research and the provision of training and information by others
- Provide an information and advisory service
- Submit proposals for regulations
- Report to and act on directions given by the Secretary for State
- Liase with local authorities and fire authorities to whom it has delegated some of it's duties
The HSE, which is appointed by the HSC, has responsibility for implementation. It consists of three persons one of who is the director and has a duty to perform such functions that the HSC directs him to do. For example the HSC may direct the HSE to make a special report on any accident, occurrence or other matter for a general purpose or with a view to making new Regulations.
The HSE employs Inspectors whose main function is to oversee the ways in which organisations try to comply with statutory duties of care and to take action where they find non-conformances.
Local Authorities
Local authorities have delegated powers to bring in specific by-laws. They also employ Environmental Health Officers (EHO's) who have the same powers as HSE inspectors. Environmental Health Officers inspect standards of compliance within offices, shops and non-or light industrial premises.
Fire Authorities
The Fire Authorities carry out inspections of work places and enforce compliance with in particular issues relating to fire risk assessments. They also offer advice on fire precautions and have powers to issue prohibition and improvement notices in the same manner as the HSE and EHO inspectors.
The Scottish Environmental Protection Agency
The Scottish Environmental Protection Agency was established in 1996 by the Environmental Protection Act and laid down its authority and responsibility. The Agency has amongst its duties a responsibility to carry out assessments of existing/potential pollution levels. It will also identify options for prevention/minimisation rather than punishment and compensation for individual offences committed and injuries suffered in connection with occupation of land (e.g. common law nuisance). To some extent this is still the trend today. A similar Agency operatesin England and Wales.
Insurance Companies
There are two forms of insurance that are compulsory. These are Employer's Liability and Motor Insurance. Other types of insurances are optional although few companies would operate without for example, fire insurance.
The trend today is for insurance companies to take a more hands-on approach when underwriting liability and engineering insurance.
Most insurers employ liability surveyors to visit their clients in order to establish the level of safety culture that exists. They will also assess the quality of management system and it's implementation as well as compliance with statutory duties of care.
They will consider the monitoring arrangements within the organisation to identify non-conformances and take corrective action.
The insurer will then recommend an action plan to the insured and whilst these are only recommendations, non-compliance may affect the premiums for insurance and in some instances lead to a cancellation.
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1.5 Sources of information on health and safety
Within an organisation there will be a variety of different sources of information both internal and external:Internal sources:
- Drawings of buildings, describing materials, incoming services etc.,
- Manufacturer's instruction manuals for plant and machinery
- Maintenance records of plant and machinery
- Accident and incident investigation records
- Names of suppliers and service organisations
- Reports from outside agencies such as HSE, customer audits, and insurance companies
- Training records
- Job descriptions
- Safety policy and arrangements
- Manufacturers handouts and booklets
- HSC and HSE publications
- Trades associations
- International Labour Organisation
- British standards
- Internet
- Encyclopaedias
- Case law
- Magazines and newspapers
1.6 The key elements of a health and safety management system
In the HSE publication HSG65 the six main elements for successful health and safety management are listed as:- Policy
- Organisation
- Planning and implementing
- Measuring performance
- Reviewing performance
- Auditing
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