Understanding Responsibilities – How does the law work?

You don’t need to know the details of every regulation, but you do need to understand a little more about how the law works in relation to safety and health.

Remember the workplace accident in Lesson 1.

We said that if the accident had happened because of a failure to manage safety and health risks in the organisation, the regulator may take action, which in turn may lead to prosecutions, fines and imprisonment.  Also, the injured worker may seek compensation for their injuries.

Essentially, there are two types of legal proceedings that could take place as a result of the accident; a criminal law case and a civil law action.

So, as a duty holder, you need to understand why.

Civil law action

In UK civil law, victims of harm or loss, caused by the fault or negligence of another party, can seek compensation for that harm.

Usually, the legal action must start within three years of the accident or when the injured person found that the injury was the fault of the employer.  The amount of compensation awarded depends on the nature of the injury and its effect on the person’s ability to earn a living.

This type of law is mainly developed over time by the decisions made by judges – also known s precedents.  So a decision taken by a judge in one particular case will apply to all future similar cases.  You can think of this type of law as ‘judge-made’.

This type of law is entirely reactive – someone has to suffer harm or loss before a case can be brought to court.

In such cases, the responsibility is on the claimant (the injured party) to demonstrate that the defendant has been negligent so that the judge is more certain than not of the defendant’s negligence – this level of proof is usually referred to as ‘the balance of probabilities’.

For the claimant to be successful, they have to show three things:

  1. that the defendant owed the person a duty of care
  2. that the duty of care was breached
  3. that the injury was caused by a breach of the duty.

So in case of our accident, the company owed the employee a duty of care not to cause them foreseeable injury.  By failing to manage foreseeable safety risks, they breached the duty of care and caused the injury.

if the employee is found to have played a part in contributing towards their own injury, the claim for compensation may be reduced or even denied because of their ‘contributory negligence’.

Also, the employer can be liable for the negligent actions of his employees which cause injury to others while they’re in employment.  This is known as vicarious liability.

Employers are required to take out and maintain insurance policies against liability for injury or illness sustained by their employees while in their employment.

Employers’ liability insurance is compulsory for many organisations – exceptions are public organisations, health service bodies, certain family businesses and other public funded bodies. This insurance allows businesses to meet the costs of compensation and legal fees for employers who are injured or made ill at work through the fault of the employer.

By law, an employer in the UK must be insured for at least £5 million.

Criminal law case

Employers in the UK have a legal duty under the Health and Safety at Work etc Act 1974 (HASWA) to manage safety and health risks.  This Act is known as a statute and is created by Parliament – in other words, it’s the law of the land.  As you can imagine, there are many statutes relating to a whole range of issues, not just safety and health matters.

Statutes can be used in criminal and civil cases.  Where the statute allows for criminal proceedings, the type of law created is criminal law, breaches of which can be punished through imprisonment, fines and/or remedial orders.

Usually, any legal action must start within six months of the accident or from when Health and Safety Executive (HSE) or local authority realises the organisation has broken the law.

  • All employers, directors, managers, manufacturers, contractors and employees have a duty under HASWA to ensure, so far as is reasonably practicable, safety and health in relation to theirs activities.
  • Under the Management of Health and Safety at Work Regulations 1999 (as amended), additional general requirements are placed on employers to carry out assessments of reasonably foreseeable risks and to implement risk controls, so far as is reasonably practicable.
  • The Workplace (Health, Safety and Welfare) Regulations 1992 aim to ensure that the workplace meets the health, safety and welfare needs of all the workforce, including people with disabilities.
  • The Corporate Manslaughter and Corporate Homicide Act 2007 sets out the offences for which an organisation can be prosecuted, if a gross failure in the way activities were managed or organised resulted in a gross breach of a duty of care.

Other regulations set minimum requirements for a range of specific hazards – for example, chemicals and work equipment.

This type of law is proactive – it’s designed to encourage prevention and avoidance – and reactive – it provides punishment for lawbreakers.

In criminal law, the case against the accused must be proved by the prosecution.  So, in this case the State or its representative has the burden of proof.  The level of proof required is ‘beyond reasonable doubt’.  However, for breaches of some sections of the Health and Safety at Work Act etc 1974, the defendant must prove that it was not reasonably practicable to do more than they did satisfy their duty.  This referred to as the ‘reverse burden of proof’.

Penalties for criminal offences can be imprisonment, fines and/or remedial orders.  The severity of the penalty depends on the seriousness of the crime.  These fines come out of the company’s turnover – they’re not covered by insurance policies.

Remember we said that the injured person might also bring a personal injury claim against the company.  So how does that work?

Help with interpreting and applying the law comes in the form of:

  • approved codes of practice
  • guidance documents
  • industry-specific guidance.

So now you know that you have to manage foreseeable risks to the extent that is reasonably practicable.  You also have an insight into how things might pan out if there were a serious incident.

There doesn’t have to be an incident for an inspector to take action.  If an inspector has concerns about your activities and believes you’ve broken the law, they can take action by issuing an Improvement Notice or Prohibition Notice.

  • An Improvement Notice gives you a time limit in which to resolve the problem.
  • A Prohibition Notice means that you must stop an activity that’s considered to present a risk of serious personal injury.

Now we need to look at the best way of managing foreseeable risks.  The ideal way to do this is to incorporate safety and health into everything you do by planning, doing what you plan, checking that this was okay and, if not, acting accordingly and planning again.  This process is central to good business management, not just safety and health.

A good practice approach to managing safety and health in the workplace would include three essential principles.  These principles are:

Strong and active leadership from the top:
  • visible, active commitment from the board;
  • establishing effective ‘downward’ communication systems and management structures;
  • integration of good health and safety management with business decisions.
Worker involvement:
  • engaging the workforce in the promotion and achievement of safe and healthy conditions;
  • effective ‘upward’ communication;
  • providing high-quality training.
Assessment and review:
  • identifying and managing safety and health risks;
  • accessing (and following) competent advice;
  • monitoring, reporting and reviewing performance.

Integrating these three principles will help an organisation find the best ways to lead and promote safety and health in the workplace and so lead to good safety and health performance.

We’ll now consider the key elements in a safety and health management system.