NEBOSH National General Certificate Unit 1 Session 2

NEBOSH National General Certificate Unit 1: Session 2 • Criminal liability • Health and Safety at Work Act 1974 and subordinate legislation • Roles and functions of external agencies • Powers of inspectors and enforcement

Statute Law: Types • Acts: eg, Health and Safety at Work etc Act 1974 primary or principal legislation with enabling provisions • Regulations: eg, Control of Substances Hazardous to Health regulations 1999 - delegated legislation • Orders: eg, Commencement Orders bringing Acts into force • Approved Codes of Practice (ACo. Ps): eg, COSHH • Guidance Notes: eg, HSE HSG and GN series

Statute Law: Status of Acts and Regulations • Acts: primary or principal legislation with enabling provisions made by parliament • Regulations: delegated (by Acts) legislation made by appropriate Secretary of State following proposals made by Health and Safety Commission - laid before parliament and do not require a vote but can be vetoed within 40 days of being laid

Status of Orders, ACo. Ps and Guidance • Approved Codes of Practice: supplementary guidance to Acts regulations approved by HSC. Failure to comply not an offence provided defendant can show compliance achieved by some other equally effective means • Guidance: eg, HSC/HSE guidance, British Standards, industry guidance - not law but persuasive

Types of Statutory Duty • Absolute: must be achieved whatever cost or inconvenience • Practicable: (possible in the light of current knowledge and invention) • Reasonably practicable: (Edwards v National Coal Board (1949)) - balance between cost of action (money, time, inconvenience) and risk - where risk is insignificant in relation to cost action need not be taken

Criminal Law: Offences • Summary offences: least serious criminal offences heard only in Magistrates Courts, eg TWOC, common assault • Triable either way: triable summarily or on indictment (most health and safety cases): can be heard by Magistrates Court or Crown Court - both prosecutor and defendant have a role in deciding the venue • Indictable offences: serious offences which can only be heard by Crown Court, eg murder, robbery

Magistrates Courts • All criminal cases begin in the Magistrates Court • Magistrates are appointed members of public assisted on law and procedure by professionally qualified Clerk to Justices • Summary offences: always heard in Magistrates Courts

Magistrates Courts (Cont) • Triable either way: Magistrates decide venue but defendant has right of trial in Crown Court. If found guilty by Magistrates they may refer case to Crown Court for sentencing if they feel their powers are inadequate • Indictable offences: Magistrates ensure sufficient evidence before referring to Crown Court (commital hearing)

Crown Courts • Trial by judge (decides law) and jury (decide facts) • Trial of cases where defendant has elected jury trial or where Magistrates have decided jury trial is appropriate due to seriousness and/or their limited powers of sentence • Prosecution and defendant represented by counsel

Penalties: Magistrates Courts • Failing to comply with general duties under Health and Safety at Work etc Act 1974: up to £ 20 000 • Failing to comply with Improvement or Prohibition Notice: up too £ 20 000 and/or up to 6 months imprisonment • Failing to comply with regulations: up to £ 5000

Penalties: Crown Courts • All offences: unlimited fine • Failing to comply with an Improvement or Prohibition Notice: unlimited fine and/or up to 2 years imprisonment

Manslaughter (Involuntary) Unlawful killing without ‘malice aforethought’ - causing death through gross negligence. Under present law a company cannot be convicted without proof of reckless behaviour by at least one director (the ‘identification’ principle). Proposed new offences of: • corporate killing • killing by individuals where recklessness or gross carelessness as to health and safety precautions has caused death

Health and Safety at Work etc Act 1974 (HSWA 1974) Historical Context • 1833: first substantive health and safety legislation and four inspectors appointed • Early legislation selective, prescriptive and hardware based • Robens Committee: 1970 -1972

Report of Robens Committee 1972 • Replace existing legislation with one enabling Act applying to all persons at work and persons affected by work activities • Create new national authorities: HSC and HSE • Replace mass of detail with basic principles of general application • Place more emphasis on ‘software’ - systems of work, training, supervision, etc • Provide new methods of enforcement in addition to prosecution

HSWA 1974: Section 2 General duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees and in particular: • safe plant and systems of work • safe use, handling, transport and storage of substances and articles • provision of information, instruction, training and supervision • safe place of work, access and egress • safe working environment and adequate welfare facilities

HSWA 1974: Section 2 (cont) • Written health and safety policy statement (where 5 or more employees) • consultation with safety representatives and formation of heath and safety committees where there are recognised trade unions (Safety Representatives and Safety Committees Regulations 1977) Note that Health and Safety (Consultation with Employees) Regulations 1996 extends consultation rights to all employees

HSWA 1974: Section 3 General duty of employers and self employed to conduct undertaking so as to ensure so far as reasonably practicable that persons other than their employees are not exposed to risks to their health or safety, eg, visitors, contractors, members of public. Potentially of wide application.

HSWA 1974: Section 4 General duty of persons concerned with premises to persons other than their employees Covers situations where persons permit use of non-domestic premises by persons who are not their employees as: • a place of work or, • a place where they may use plant or substances provided for their use there

HSWA 1974: Section 5 General duty of persons in control of premises in relation to harmful emissions into atmosphere. Dormant section - overtaken by Environmental Protection legislation enforced by Environment Agency.

HSWA 1974: Section 6 General duty of manufacturer etc. as regards articles and substances for use at work. Applies to any person who: • designs, manufactures, imports or supplies any article for use at work or, • manufactures, imports or supplies any substance for use at work.

HSWA 1974: Section 7 General duties of all employees at work: • Section 7(a): to take care for health and safety of themselves and others who may be affected by acts or omissions and, • Section 7(b): to co-operate with employer so as to enable compliance with statutory requirements.

HSWA 1974: Section 8 No person to intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare

HSWA 1974: Section 9 Duty not to charge employees for things done or provided under specific requirements. Employer may not levy any charge - or permit any levy to be charged - concerning anything done or provided under statutory requirements.

HSWA 1974: Section 37 Provides that where an offence shown to have been committed: • with consent or connivance of, • or to have been attributable to neglect, on part of director, manager, secretary, etc, both corporate body and person may be prosecuted and punished accordingly.

HSWA 1974: Section 40 Where a duty is qualified by reasonably practicable or practicable the burden is on the accused to prove - on a balance of probabilities - that it was not reasonably practicable or practicable to do more than was done. The ‘reverse onus of proof’.

The Management of Health and Safety at Work Regulations 1999 • Originally implemented in 1993 as a result of EC Framework Directive (89/391/EEC) • Made under powers contained in Section 15 of HSWA 1974 • Accompanying Approved Code of Practice (approved under Section 16 of HSAW 1974) • Regulations and ACo. P revised in 1999

Health and Safety Commission (1) HSC established with general duty ‘to do such things and make such arrangements as it considers appropriate for the general purposes’ of: • ensuring health, safety and welfare of persons at work and protecting those not at work from work activities • controlling keeping and use of dangerous substances • controlling emissions to atmosphere

Health and Safety Commission (2) • comprises up to nine members appointed by Secretary of State (Department for Work and Pensions) • chairman appointed by So. S and other members appointed from industry, trade unions, local authorities and others • HSC has several advisory committees to give it advice on subjects such as toxic substances, nuclear safety etc

Health and Safety Executive (1) Statutory body working under direction and guidance of HSC (HSC may not direct HSE about enforcement in respect of any particular case). Main functions exercised through inspectorates to: • enforce legal requirements • provide advice to employers, trade unions, etc

Local Authority Enforcement of health and safety legislation in lower risk sectors, eg offices, shops, places of entertainment, allocated by regulations to relevant local authority.

Powers of Inspectors (1) Inspectors can: • enter premises at any reasonable time (or any time where there is danger) • take a police constable where obstruction is anticipated • take other people and equipment or materials onto premises to assist in investigations • carry out any examinations and investigations as required • require locations to be left undisturbed

Powers of Inspectors (2) • take measurements, photographs and recordings • take samples of articles or substances • require dismantling and/or testing of articles and substances • take possession of articles and substances for examination and use as evidence • take statements and copies of relevant documents • require provision of facilities to assist enquiries • do anything else necessary to enable duties to be carried out

Enforcement Inspectors visit premises and places for two basic purposes: • Proactive (planned preventive) inspections • Investigations: usually in response to RIDDOR reports or complaints

Enforcement: Options • • • Advice (verbal or in writing) Improvement Notice Prohibition Notice Prosecution (summary or indictment) Seize, render harmless or destroy any article or substance considered to be cause of imminent danger or serious injury

Advice Where health and safety is generally well regulated and matters of minor concern are found, inspector may give advice rather than take formal enforcement action. Advice may be confirmed in writing: onus placed on employer to confirm action taken.

Improvement Notice • requires action to be taken to remedy a breach of statutory duty within a specified time period • at least 21 days must be given during which an appeal to an industrial tribunal may be made: inspector may extend term of notice • making of an appeal suspends notice until terms confirmed or amended by tribunal

Prohibition Notice • may be issued where inspectors opinion is that work activity presents risk of serious personal injury • may take immediate effect (usually) or may be deferred • appeal to industrial tribunal may be made within 21 days but does not suspend the notice until appeal has been heard

Prosecution HSC expects that prosecution will be considered : • when it is appropriate to draw general attention to the need to comply with the relevant law, • or there is judged to have been considerable harm arising from breach of law, • or the gravity of offence and general record and approach of the offender warrants it

Enforcement Policy Basic principles: • • Proportionality Consistency Transparency Targeting See HSC Enforcement Policy Statement: