Health and Safety – Legal Minimum Requirements

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This guidance article will help you to consider health and safety in your workplace; because of the size and complexity of the relevant legislation, it can only provide the basic facts and is therefore not exhaustive. Some regulations apply to all workplaces: others are specific to industries with known hazards.

Note that employees are required to take reasonable care whilst at work for both their own protection and that of others in the workplace.

Health and safety policy

The five main steps of health and safety management are:

  1. setting policies
  2. Organising staff
  3. Planning and setting standards
  4. Measuring performance
  5. Auditing and reviewing the above stages.

If you have five or more employees, you must have a written health and safety policy; however, good practice recommends that ALL employers should have this. The policy should cover your general statement on health and safety, describe your organisation and detail the arrangements you have in place for carrying out your policy. The policy must be brought to the attention of all your employees (either by issuing copies to them personally, including it in an employee handbook or displaying it prominently on notice boards) and be revised whenever appropriate; again any changes must be brought to the attention of your employees.

Staff need to know what their health and safety responsibilities are, and where those responsibilities stop. In addition, it is important to clarify who has authority over whom and in what circumstances.

As well as communicating and revising the policy, it should be monitored to ensure that the steps you put in place to organise and control health and safety are actually being implemented. The management of health and safety will only work if it is continually reviewed and revised to take account of changes and developments in the workplace, such as new staff or equipment and different work processes. It is vital that the findings of audits or other monitoring systems are taken up and implemented, and that the health and safety policy is regularly checked to see whether it needs reviewing and revising.

A senior manager of the organisation or a dedicated and qualified health and safety officer should be responsible for the implementation of the policy, the latter being responsible to a senior manager for its implementation.

 

Employers’ Liability Insurance

ALL employers (other than those who employ only their owner) must have at least £5 million insurance cover for personal injury or disease sustained by employees during their employment. This is laid down by the Employers’ Liability (Compulsory Insurance) Act 1969 (as amended).

For every day on which employers are not insured in accordance with the legislation, they are liable, on summary conviction, to a fine not exceeding £2,500 per day.

The certificate may be made available electronically, rather than having to display a hard copy, provided it is reasonably accessible to all relevant employees.

 

Health and Safety at Work posters and first aid details

The H & S Information for Employees Regulations 1989 (as amended) require employers to bring to their employees’ attention information relating to general requirements, duties etc under health and safety law. A revised version of the health and safety law poster was published in 2009, and employers are obliged to display the updated version or give workers the equivalent leaflet. There is no longer a requirement to enter details of the local enforcing authority and the Employment Medical Advisory Service.

The poster must be situated in a readily accessible and visible position and be maintained in a reasonable condition at all times. If there is no obvious place to display the poster (perhaps because your employees work in remote locations and do not regularly visit your premises) employers may alternatively choose to issue all employees with the approved leaflet version.

Copies of the poster and/or leaflets can be ordered from HSE Books (tel: 01787 881165).

You have a further duty imposed by the Health and Safety (First-Aid) Regulations 1981 to post notices in English and in any other language in common use at the place of work, giving the location of first aid equipment and facilities and the name(s) and location(s) of first aid personnel.

 

Safety signs

All safety signs, regardless of when they were erected or placed, must comply with the Health and Safety (Safety Signs and Signals) Regulations 1996. These implement an EU directive on safety signs and require employers to use a safety sign wherever there is risk to health and safety that cannot be avoided or controlled by other means.

The Health and Safety (Safety Signs and Signals) Regulations 1996 also specifically cover fire signs and signals. This includes fire fighting and fire exit signs, eg text only “fire exit” signs should be replaced with the running man symbol.

 

Competent/trained staff

Employers have a duty under the Health and Safety at Work etc Act 1974 (HASAWA), when entrusting employees with tasks, to take into account their capabilities as regards health and safety. Employees must be given adequate health and safety training during the induction process and on an ongoing basis, or when deemed necessary. They will also need to be retrained where they are exposed to new or increased risks, following risk assessments and audits.

The Approved Code of Practice associated with the Management of Health and Safety at Work Regulations 1999 says that employers should make special arrangements for employees with limited English in order to ensure that they understand health and safety procedures. Such arrangements could include using more symbols, having a more thorough induction programme, appointing a translator for these sessions, providing translations of the employee handbook or important policies etc. If you employ workers who are not fluent English-speakers, do ensure that they understand your rules and procedures

All training must be repeated periodically where appropriate. It must also be adapted to take account of any new or changed risks to health and safety. Training should be carried out during working hours. It is advisable to keep a record of all such training on the individuals’ training records.

The law also places responsibility on employees, who must carry out their duties in accordance with the training and instructions given to them and who must also report any dangerous situations in the workplace or any shortcomings in the arrangements for health and safety.

 

Safety committees

Under the Safety Representatives and Safety Committees Regulations 1977, if a recognised union requires it, employers must consult with representatives who have been appointed under the regulations with a view to the making and maintenance of arrangements which will enable them and their employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of employees, and in the checking of such measures. See our articles on trade unions and on safety representatives for further details.

However, the Safety Representatives and Safety Committees Regulations 1977 related only to employees represented by a trade union recognised by the employer. This requirement was extended by the Health and Safety (Consultation with Employees) Regulations 1996. These provide that, where any employees are not represented by union-appointed representatives, the employer has a duty to either consult directly with such employees on a range of health and safety matters or to set up an arrangement for consultation with elected representatives of groups of employees who wish to be so represented.

 

First aid and accidents

Please see our articles on first aid and accident reporting for further details on the minimum provisions for first aid and the records that must be kept.

 

Health and safety inspections

A Health and Safety Inspector may visit your organisation to examine the arrangements in place for assessing and controlling risks from any health and safety at work issues. The Inspector may ask to speak to a range of people in the organisation, including representatives from:

  • The Board of Directors (Chief Executive, HR Director)
  • Health and Safety
  • Personnel/Human Resources
  • Occupational Health
  • Recognised trades union/staff-side representatives.
  • Enforcement action may be considered where organisations fall short of their obligations for health and safety and may take the form of an Improvement Notice or a Prohibition Notice.

“Low risk” businesses such as shops, offices, pubs, restaurants and clubs are no longer subjected to health and safety inspections. Businesses are only inspected if they operate in high risk areas or have a poor safety record. Higher risk businesses, such as construction, are routinely inspected, as are low risk businesses with a poor track record, or if an employee makes a complaint about health and safety conditions at work.

Businesses that are inspected and found to be in “material breach” of safety regulations may face a charge for the visit under the Health and Safety (Fees) Regulations 2012. (Those who are inspected and found not to be in material breach will not be charged.) The HSE has published detailed information and guidance which explains how the scheme works. When assessing a breach, Inspectors will consider the nature of the hazard, the risk of injury, the nature of the injury that might occur, the availability of information and guidance on how to achieve compliance and the employer’s attitude to health and safety and its history of compliance. If the Inspector decides that formal action is required, the business will be informed in writing and will be charged a set hourly rate for the time spent making the visit, for the associated administrative time and any subsequent follow-up action. Should the Inspector need to involve specialist colleagues or call for scientific testing and analysis that will also be charged for.

 

Penalties for serious breaches

Revised Sentencing Guidelines apply to any sentences passed in England and Wales on or after 1 February 2016, and cover health and safety, corporate manslaughter and food safety and hygiene offences. These set out the details of how to calculate culpability and harm, and the recommended levels of fine according to the turnover of a convicted business. The increased levels of fine will affect businesses of all sizes, but particularly those with a turnover of more than £50M. The guidelines aim to ensure that there is more consistency in sentencing, that the fines (particularly for larger businesses) are sufficiently high to provide punishment, deterrence and public protection and that they reflect the seriousness of the harm caused and/or the culpability of the offender.

The principal factors governing the level of fine are the degree of harm done, the degree of culpability of the offending company, and the company’s turnover (rather than profit). There are four categories for turnover: less than £2M (micro); £2M to £10M (small); £10M to £50M (medium) and over £50M (large). The guideline fine for the larger companies could be up to £10 million for health and safety offences and up to £20M for corporate manslaughter, but the guidance says that the courts should go beyond the guideline figures for organisations whose turnover greatly exceeds £50M. So large organisations could face fines reaching many millions of pounds for the most serious offences.

Health and safety breaches: the guidelines have tables for each type of offence, and the courts are directed to take into account the seriousness of the offence (considering firstly the degree of culpability ranging from a flagrant breach to an unintentional minor breach) and then the risk of harm (categorised as low, medium, high, or very high – irrespective of whether any harm was caused, and also the number of workers or members of the public exposed to the risk of harm) and the turnover of the organisation. A large organisation, with very high culpability and category 1 harm could face a fine ranging from a starting point of £4 million and a category range of £2.6M to £10 million; a micro organisation where there was low culpability and category 4 harm could face a starting point of £200 and a category range of £50 to £2,000. The guidance states that the fine must have sufficient economic impact to emphasise to management and shareholders the need to comply with health and safety legislation.

Corporate manslaughter: again this will reflect the turnover of the organisation, but there is no need to determine the level of ‘harm’ as all prosecutions will follow a death. ‘Culpability’ levels are also reduced to two categories: ‘serious’ and ‘more serious’. The offence range is £180,000 to £20million. For a large organisation where the offence is considered more serious, the starting point will be £7.5M with a category range of £4.8M – £20M. For a micro organisation where the harm/culpability is assessed as serious, there is a starting point of £300,000 with a category range of £180,000 to £540,000. For very large organisations greatly exceeding the £50M turnover, the courts may move outside the suggested ranges.

Food safety offences: these cover a multitude of food safety and hygiene offences including placing unsafe food on the market, inadequate traceability, food recalls and withdrawals, failure to adopt systems based on HACCP principles and misleading consumers through labelling, advertising and presentation of food. The most serious level of harm includes not only where there has been a serious adverse effect on individuals but also where there is a high risk of an adverse effect. “Harm” includes where a consumer has been misled regarding a food’s compliance with religious or personal beliefs.

A convicted organisation will be required to provide comprehensive accounting information so that its financial status can be accurately assessed; otherwise the court may infer that the organisation can pay a fine of any size. Fines are expected to increase dramatically in the majority of cases.

Note: a criminal fine cannot be insured, so must be met by the company.

 

Legal considerations

Health and safety law has developed over a substantial number of years and continues to do so. In addition to the general duty of care in common law, employers have general and specific statutory duties under numerous Acts and sets of Regulations. The main piece of legislation is the Health and Safety at Work etc Act 1974 (HASAWA) which requires that employers provide their employees with a safe place of work. Extensive case law interprets this and other pieces of health and safety legislation.

In addition to meeting statutory requirements, all employers have a criminal and a common law duty not to negligently expose staff to harm whilst at work. Employers risk being sued for civil damages by an injured employee or, in the case of death, their dependants. These claims rely on failure to conform with health and safety requirements as evidence of liability.

Criminal prosecution is used for serious breaches, especially if a fatality or injury has occurred. If found guilty, the employer (and its individual directors, if applicable) can be fined and/or face a prison sentence. The introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 places specific duties on managers, directors, board members and owners of companies. For less serious breaches, HSE inspectors can issue Improvement Notices or, in a severe case, they can impose a Prohibition Notice which prevents all activities from taking place on that site for a period of time or until the notice is lifted by the inspector.

Health and safety legislation used to be prescriptive, specifying actions that an employer must take. With the enactment of EU directives in 1992 (which came fully into force in 1996), duties became wider but more vague, often requiring employers to be ‘reasonable’ and more pro-active. Although this gives some latitude to individual firms, it also makes it important that they audit and benchmark their standards within the health and safety regulations.

The Workplace (Health, Safety and Welfare) Regulations 1992 cover minimum standards for business premises, including maintenance of the workplace, ventilation, temperature, lighting, cleanliness, room dimensions and space, workstations, windows, doors, traffic routes, toilets, washing facilities and facilities for rest and to eat meals.

The Management of Health and Safety at Work Regulations 1999 require every employer to make a “suitable and sufficient assessment” of the risks to employees’ health and safety to which they are exposed whilst they are at work; and the risks to the health and safety of persons not in the employment arising out of or in connection with the conduct of the undertaking.

If you employ more than five employees, you also need to record your risk assessment covering your main findings and the steps you have taken to minimise any risks to health and safety.

Under the same legislation, employers also have the following responsibilities:

  • To make appropriate health and safety arrangements
  • To provide adequate health surveillance
  • To provide health and safety assistance (eg first aiders)
  • To provide procedures for serious and imminent dangers
  • To provide information and training to employees
  • To co-operate and co-ordinate with other employers if they are on the same site
  • To ensure employees are aware of their own duties
  • To make adequate provision for temporary workers.

The Health and Safety at Work etc Act 1974 (HASAWA) also provides that “where an offence committed by a corporate body is proved to have been committed with the consent of or to have been attributable to any negligence on the part of any officer of the body, he/she will be guilty of the offence and will be liable to be proceeded against and punished accordingly.” These duties are complemented by the Corporate Manslaughter and Corporate Homicide Act 2007 under which an offence occurs if a person is killed as a result of a gross breach of relevant duty of care owed by the employer to that person. The Act also imposes a duty on every employer (and every self-employed person) to conduct their business in such a way as to ensure people not in their employment are also not exposed to risks to their health and safety whilst on the employer’s premises. An employer or self-employed person who fails to take reasonably practicable steps to protect persons not in their employment such as customers, delivery drivers etc from harm, is guilty of an offence.

Likewise owners of premises that are occupied for the purpose of working are responsible for the health and safety of the occupiers. The Occupiers’ Liability Act 1984 defines the circumstances under which a duty is owed. In particular, occupiers owe a duty if:

  • They are aware of a danger
  • They know (or should know) that a person may put themselves at risk
  • The risk is one which the occupier might reasonably be expected to do something about.
  • The duty may be discharged by one of the following means:
  • Giving warning of the danger
  • Discouraging people from putting themselves at risk in the first place.

Employers are no longer required to register the factories, offices and shops in which their employees work with the relevant health and safety authority.

The Independent Regulatory Challenge Panel reviews decisions on cases which businesses may feel are incorrect or go beyond what is required to control the risk adequately.

As from October 2015, most self-employed people are exempt from health and safety laws if they have no employees. This was brought in under the Deregulation Act 2015.

 

Brexit

The Health and Safety Executive (HSE) have confirmed that an employers’ duties to protect the health and safety of workers (and to protect the environment) will not change because of Brexit. Minor amendments have been made to regulations to remove any references to the EU that will no longer be applicable, but all existing obligations and standards will remain the same.

Organisations who have industry specific legal obligations derived from EU law may review the HSE’s guidance on how to move forwards in the event of a ‘no deal’ Brexit.

 

Related cases

Vicarious liability:

An employer may be held civilly or criminally liable for the negligent or unlawful acts of an employee, even though the employee can be shown to have wilfully disobeyed the express instructions of the employer. This is known as ‘vicarious liability’, whereby under certain circumstances one party becomes liable for the actions of another. If employers are party to the negligent or unlawful act, or aid and abet the unlawful activities of another, they assume personal liability along with that other person.

A parent company would not usually expect to be liable for obligations incurred by its subsidiaries as, unless there are express guarantees or indemnities, each company in a group is a separate legal entity, responsible only for its own liabilities. However, in Chandler v Cape, the parent company was ruled to be liable for its subsidiary companies. Mr Chandler contracted asbestosis as a result of his employer’s negligent practices. When the employer became insolvent, it transpired it had not maintained its employer’s liability insurance so Mr Chandler sued the parent company. The High Court concluded that there was clearly a foreseeable risk where an employee was working with asbestos, and Cape plc had assumed overall responsibility for health and safety policies within the group, so was liable. Such a duty will only arise where:

  • The relevant loss or damage is foreseeable
  • There is sufficient proximity between the party owing the duty and the party alleged to have caused the loss or damage and
    it is fair, just and reasonable to impose the duty of care.

In David Thompson v Renwick Group plc (which also concerned an employee who contracted asbestosis), the parent company was not found to be liable as there were none of the special features of the Cape case that made it fair, just or reasonable to impose a duty of care.

 

Further HSE Support

HR Solutions’ Health, Safety and Environment division, called HSE Solutions, provides you with access to a Competent Person to help de-risk your working environment from accidents. To find out more about how our HSE Solutions service can help your business, visit www.hrsolutions-uk.com/health-and-safety or call us on 0844 324 5840.

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