Safety, Health & Welfare at Work Act 1989-2005 PDF

# The Safety, Health and Welfare at Work Act, 1989-2005 ## The Safety, Health and Welfare at Work Act, 2005 - came into force on the 1st September 2005, replacing the *Safety, Health and Welfare at Work Act 1989*. - extends legislative protection in safety, health and welfare matters to *include...

# The Safety, Health and Welfare at Work Act, 1989-2005 ## The Safety, Health and Welfare at Work Act, 2005 - came into force on the 1st September 2005, replacing the *Safety, Health and Welfare at Work Act 1989*. - extends legislative protection in safety, health and welfare matters to *include all places of work* and *all employers, employees and the self-employed*. - obligations are placed upon *employers, employees and the self-employed* to contribute to ensuring that their workplace and systems of work are safe. - They have a duty of care *to ensure same as far as reasonably practical*. ## Remedies for an injured employee An employee injured at work may be able to sue his employer for: - *breach of his statutory duty* (general duties are set out in *section 8 of the 2005 act*) The employee must show that the *employer failed to comply with the requirement of an Act* and he was injured as a result of that failure. - *breach of his common law duty of care*. In order to succeed on a claim for negligence, the employee has to prove the *employer was negligent*, i.e. he failed to take reasonable care for the employees safety and as a result the employee was injured. ## 6.1 Health and Welfare at Work Act 2005 - represents a *modernisation of our occupational health and safety laws* and it sets the scene for achieving further improvements in the national record on safety and health over the next few decades. - Its primary focus is on the *prevention of workplace accidents, illnesses and dangerous occurrences* and *it provides also for significantly increased fines and penalties aimed at deterring the minority who continue to flout safety and health laws*. - For the first time the 2005 Act gave a definition of *competent person* and *reasonably practicable*. ## The Safety, Health and Welfare at Work (General Application) Regulations 2007 - are a set of legislative provisions to *encourage improvements in the safety and health of workers at work*. - The Regulations place obligations as regards safety and health on *employers, employees and others*. - They lay down a basis for *managing safety and health* and ensure that employers consult with employees on safety and health matters. ## Competent Person - For the purposes of the relevant statutory provisions, a person is deemed to be a *competent person* where, having regard to the task he or she is required to perform and taking account of the size or hazards (or both of them) of the undertaking or establishment in which he or she undertakes work, the person possesses *sufficient training, experience and knowledge appropriate to the nature of the work to be undertaken*. ## Reasonably Practicable - For the purposes of the relevant statutory provisions, *reasonably practicable*, in relation to the duties of an employer, means that an employer has exercised all due care by *putting in place the necessary protective and preventive measures*, having *identified the hazards and assessed the risk to safety and health likely to result in accidents or injury to health at the place of work concerned* and where the *putting in place of any further measures is grossly disproportionate* having regard to the *unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work*. The foregoing definitions impose a *high standard on employers* by obliging them to show that they have taken *all reasonably foreseeable steps against risk*. ## Section 2 - leaves no ambiguity as to who the duty is owed. It defines an employer as a *person including a person (other than an employee of that person) under whose control and direction an employee works*. This could include, for example, a seconded worker or a borrowed worker which is not an unusual phenomenon in the building trade where tradesmen are moved from site to site. ## In relation to self-employed, Section 7 - makes it clear that, in effect, a *self-employed person is his own employee* and the duties of an employer must be fulfilled by him or her in relation to his own work activity. ## Firstly, the general duties of employer are set out under Section 8 of the 2005 Act. - An employer is to *ensure as far as is as reasonably practicable, the safety health & welfare at work of his/her employees*. This duty now includes the introduction by the employer of *preventative measures in respect of improper conduct or behaviour* that would be likely to *endanger the health and safety of employees*. - The particular phrase used in the Act is the *managing and conducting of work activities*. This introduces a *new supervisory duty of the employer*, involving the ongoing monitoring, and if necessary disciplining, of individual employees. - The employer must ensure that, in regard to the design, provision and maintenance of a place of work: - It is *in a condition that is safe and without risk to health and safety*. - *It has a safe means of both entry and exit from it*. - *It operates plant and machinery, and uses other articles, in a manner which is safe and without risk to health and safety to the employees*. ## In regard to the use of plant and machinery, the employer is to ensure that the employees do not use any article or substance, which would expose the latter to noise, vibration, ionising or other form of radiation. Under this greatly expanded section, from that set out in Section 6 of the Act, the employer is to provide the following within the company/organisation: - A *safe system of work*. - *Maintenance of proper welfare facilities.* - *Instruction, training and supervision to employees in regard to health and safety.* - *Drafting and implementation of safety, health and welfare at work measures in order to protect the safety, health and welfare of employees.* - *Personal protective clothing and equipment for employees.* - *Drafting and implementation of appropriate emergency/accident plans and procedures.* - *Reporting of accidents and dangerous occurrences to the Health & Safety Authority.* - *Engagement of services of a competent person for the purpose of ensuring the general health and safety of all employees at the place of work.* ## Section 13 relates to possible tests for intoxicants. - The Minister has the power to introduce regulations which may set down requirements whereby an employee must, if reasonably required by his or her employer to submit to independent tests by a competent person which are appropriate, reasonable and proportionate. ## Section 20(7) emphasises the central role of the safety Statement - since it makes clear that a copy, or relevant extracts of it, must be kept available for inspection at or near every place of work to which it relates while work is being carried on there. ## Liability of Directors - Primary responsibility for worker safety and health falls on employers, including in private companies and in the public sector, because it is they, in effect, who create the risks. - Company directors and managers therefore carry a significant social responsibility to protect safety and health ## Section 80 adopts an evidence-based approach. - It provides that when an offence under health and safety laws is committed by an undertaking and the acts involved were authorised or consented to or were attributable to connivance or neglect on the part of a director, manager or other similar officer in the undertaking, both the person and the undertaking will be guilty of an offence and liable to be proceeded against and punished as if the person was guilty of the offence committed by the undertaking. - If it is proven in such a case that the persons duties included making decisions that affected the management of the undertaking, it is presumed, until the contrary is proved, that the acts which resulted in the offence were authorised, consented to or attributable to connivance or neglect on the part of that person. ## Other important elements of the Act ### General Duties of Employees - In general, employees must, - comply with relevant safety and health laws. - not be under the influence of an intoxicant at the place of work; and in that regard submit to an appropriate test, if reasonably required by their employer. - not engage in improper conduct or behaviour. - wear personal protective clothing where necessary - cooperate with their employer and look out for one another, and - not do anything which would place themselves or others at risk. - It continues to be the duty of every employer to do everything he or she can, as far as reasonably practicable, to ensure the safety, health and welfare of his or her employees. - The list of specific duties and responsibilities on employers will include responsibility for ensuring adequate instruction and training, without loss of earnings to employees. - Employers must also ensure, as far as reasonably practicable, that others at the place of work, *not being employees*, are not exposed to risks to their safety health or welfare - A new feature, which will provide that where employers and trade unions get together and agree practical guidance on health and safety in an industry or sector, that agreement can be recognized by the HSA and taken account of in enforcement ### Codes of Practice - Codes of Practice exist for the purpose of regulating safety and other procedures and activities. - A failure to observe a Code of Practice, which leads to an accident and subsequent prosecution, will be admissible as evidence in a Court ### 6.1 Common Law Duty of Employers - The employers duty to *take reasonable care of his employees* has been traditionally analysed under four headings and are often referred to as common law duties or the civil liability of the employer. - The provision of a safe place of work - The provision of proper equipment - The provision of a safe system of work. - The provision of competent staff. - The employer must *ensure that a reasonably safe place of work is provided and maintained for the benefit of his employees*. It is not sufficient for the employer to show that the employee was aware of the danger on the premises. - In Kielthy -v- Ascon Ltd. Mr Kielthy was killed while walking back to the defendants office on a wall. Ó Dálaigh CJ in the Supreme Court, stated that in his opinion if an employer offers without distinction a number of modes of access to the companys office, all of which, except one are safe, he cannot be relieved of his liability because a workman happens to choose to use the one which turns out to be unsafe. His duty is not to see that some modes of access which he offers are safe but all of them are safe. - It is important to note that the duty varies depending on the circumstances of the case. In Kenny -v- Irish Shipping, the plaintiff slipped on oil on a deck but his action failed as there was no evidence of ineffective cleaning. The court accepted that there was no more oil than usual present. - The employer has the duty to *take reasonable care to provide proper appliances and to maintain them in a proper condition* so that the employee is not exposed to any unnecessary risk. In Deegan -v- Langan, the plaintiff carpenter had been supplied with steel nails by the employer to use in the course of work but the nails were of an inferior type and could disintegrate if struck with a hammer. On hitting a nail with a hammer, the nail struck his eye and he lost his sight. Prior to the accident both the employer and employee were aware of the danger associated with the nails. The Supreme Court looked at the master/servant relationship, where an employee clearly would not be in a position to refuse to use the nails. T he employer knew of the defective nature of the nails but no other nails were made available to the employee. The court found the employer fully liable and the employee was not contributory negligent. - Heeney v Dublin Coprn Unrep HCT 16 May 1991 - Failure to provide breathing apparatus to firefighters. - New equipment and training couldnt be expected to be provided instantly but here the equipment was introduced 8 years previous to the incident and its provision to that branch of the fire service had been authorized 2 years previous to that. - Plts husband died due to injuries received fighting fire w/o proper breathing equipment. - Gardiner v Minister for defence HCt 13/3/1998 failure to provide protective equipment re risk to hearing from exposure to excessive noise. - The duty to provide safe equipment also extends to maintaining the equipment. In Burke -v- John Paul Lt [1967] IR 277d Employer liable for supplying guillotine machine for cutting steel bars which had blades that had become blunt and required extra effort thus injuring Employee. The Employer should have foreseen blades would get blunt and should have maintained them -employer fails to explain how danger could be avoided. - Work becomes dangerous no adequate system of inspection and reporting of dangers. - The Employer was liable for damage that occurred ( a hernia) which resulted from combination of foreseeable damage tearing of muscles plus pre-disposition under the egg-shell skull rule which states you take your victim as you find him i.e. you are liable for the result of the combination of foreseeable damage and a predisposition. - An employer will be liable to pay damages in the event of an accident occurring which results from an unsafe system of work. In Guckian -v- Cully the plaintiff baker was employed by the defendants to feed dough into a machine. There was a blade in the machine which would cut the dough but to get the dough into the machine the dough had to be pushed in. He did this using his hands while standing on a shaky stool. He fell and injured himself as a result. The court found that the employer was negligent in providing an unsafe system of work. - Heeney v Dublin Corpn supra Barron J held def negligent in failing to give instructions that firefigters w/o breathing apparatus should not enter burning buildings but should await arrival of colleagues with suitable equipment. - An employer has a duty of care to select competent employees. To be successful in an action, the plaintiff employee would have to prove that the employer was or should have been aware of his fellow employees incompetence. An employer who continues to employ an employee on work which the employer knows he is incapable of doing, will be liable if any employee is injured as a result. Before an employer will be liable for having failed to provide competent staff, the evidence should show that he had reason to be aware of their incompetence. - This arises where the employee contributes to his own injuries. In general the courts are reluctant to deem an employee guilty of contributory negligence Deegan v Langan above but in Guckian -v- Cully, the employee had his compensation reduced by 20% because the court held he had contributed to the accident in selecting a shaky stool. - Where the employer provides safe machinery and protective clothing which the employees are forced to wear, the employee may be guilty of contributory negligence if he is injured for not wearing them. - Saehan Media Ireland Ltd V A Worker [1999] E.L.R. 41 Labour Court recognises an obligation with regard to work place stress and held that employers have an obligation to deal with instances of its occurrence which may be brought to their attention - Cuddy V Mays High Court November 28th 2003 This case involved a hospital porter who witnessed a number of bodies being brought to A& E following a serious car crash. Among the injured were a number of close family friends, a cousin and sister. Three were D.O.A. including the porters brother. Porter assisted with removing bodies from ambulance and was also requested to identify all 9 persons involved in the accident, many of whom were seriously injured. - Porter successfully sued and was awarded damages for psychological trauma. - More recently in the UK case of Corr V IBC Vehicles Ltd 2007 1 QB 46 - A majority decision of the High court has found the employer liable for the plaintiff employees suicide. The plaintiff had incurred serious head injuries caused by malfunctioning machinery. He suffered severe depression, was hospitalised for a drug overdose and ultimately died after jumping from the top of a multi-storey car park. - The decision is currently under appeal. - Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individuals right to dignity at work but a once off incident is not considered to be bullying. - SI 17/2002 sets out a detailed code of practice to provide practical guidelines to help identify incidents of workplace bullying and to advise on how to put in place preventative measures to stop bullying occurring and how to deal with cases that may arise. - Traditionally, bullying has been seen as arising between employer and employee where someone in the position of authority has abused that authority to the detriment of their subordinate. However, it is clear that the potential for bullying in the workplace is substantial as interaction between work colleagues has increased both within and outside of the workplace. - Bullying type behaviours may include: - Undermining an individuals right to dignity at work - Humiliation - Intimidation - Verbal abuse - Victimisation - Exclusion and isolation - Repeatedly giving impossible deadlines or tasks - Repeatedly giving impossible deadlines or tasks - Threats - Bullying is also a health and safety issue per the Common law and Statutory duties of the employer to provide a safe place of work. Every employer is obliged to provide systems of work that are planned, organised, performed and maintained so as to be, as far as reasonably practicable, safe and without risk to health. This includes the reasonable prevention of bullying. - A written Dignity at Work Charter is one of the first steps in the prevention of workplace bullying: - The complainant claimed that he was harassed on the sexual orientation ground in relation to his conditions of employment, on three occasions in particular. This involved emails from his manager to the HR manager, which the claimant found personally offensive and degrading. There were two other separate occasions when comments were made by other employees which the claimant found offensive. - The equality officer noted that the existence of a policy on harassment is not sufficient to prevent harassment in employment and what is essential is effective communication and application of that policy. - The Tribunal awarded the sum of 10,000 as compensation in respect of the acts of discrimination. The Tribunal also ordered that the Respondent revise and redraft its Respect and Dignity document and its effective communication and that the Respondent provide an Equality Training seminar for all staff including management within three months. - Mr Quigley was awarded in excess of 75,000 for psychiatric injury suffered as a consequence of his employers breach of duty to prevent workplace bullying. He gave evidence that he was subjected to excessive scrutiny and unfair and unreasonable treatment by management. Mr Quigley claimed that despite frequent complaints about such behaviour, the company failed, refused or neglected to take any reasonable action to stop it.