NGIG Study Book Element 1 151122.pdf

01 1.1 MORALS AND MONEY ELEMENT 1 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION...

01 1.1 MORALS AND MONEY ELEMENT 1 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION Why we should 1.2i REGULATING HEALTH AND SAFETY manage 1.3n THE MOST IMPORTANT LEGAL workplace DUTIES FOR EMPLOYERS AND WORKERS health and 1.3i WHO DOES WHAT IN ORGANISATIONS safety 1.4 MANAGING CONTRACTORS EFFECTIVELY NGIG Nov22.indb 1 14/11/2022 10:37  SCRIBBLES AND NOTES NGIG Nov22.indb 2 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.1 MORALS AND MONEY SYLLABUS CONTENT: MORALS AND MONEY In this element we will cover: n Moral expectations of good standards of health and safety n The financial cost of incidents (insured and uninsured costs). SYLLABUS LEARNING OUTCOME n Justify health and safety improvements using moral, financial, and legal arguments n Advise on the main duties for health and safety in the workplace and help their organisation manage contractors. 01 SYLLABUS ASSESSMENT CRITERIA n Discuss the moral, financial and legal reasons for managing health and safety in the workplace n Explain how health and safety is regulated and the consequences for non- compliance. 3 NGIG Nov22.indb 3 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.1 MORALS AND MONEY Justify health and safety improvements Due to the different aspects involved within health and safety, there can be competing and conflicting demands and barriers to good standards can be varied. For an organisation to be successful, it must balance the arguments between profit and loss, with the moral factors concerning expos- ing workers or indeed others to harm. Moral expectations of good It is of course understood that due to the standards of health and safety complexities and differences of some organi- sations, and other industry compliance, other Firstly, to understand the moral argument it solutions need to be found. is important you understand the definition of “moral(s)”. In order to justify any health and safety improvements within a workplace, the moral The Collins Dictionary defines morals as: and financial arguments must be compelling and convincing in order to gain the buy in “Concerned with or relating from top management. to the distinction between Unfortunately, some organisations choose good and bad, or right and to see health and safety as a cost, and a requirement that will provide no benefit to the wrong behaviour, according organisation, except to ensure compliance. to conscience or principals There are other barriers that should also be of behaviour in accordance noted, for example, the general perception of with standards of right and safety in the workplace can be negative, with it being viewed as more interested in stopping wrong”. people from working than keeping people As adults the majority of us understand what safe. is right and wrong without this being written down in law, it is taught to us from an early age. So, when we are considering our moral arguments for making improvements, regard- ing health and safety, the rights and wrongs of any actions, or lack of action must be consid- ered, as detailed below. Our moral obligations consider beyond just our responsibilities to the health, safety, and welfare of our employees. Employers owe a duty of reasonable care to anyone affected by their activities including contractors, 4 SCRIBBLES AND NOTES NGIG Nov22.indb 4 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.1 MORALS AND MONEY visitors, members of the public, customers suitable working hours, returning home to and suppliers, extending our social and public spend more time with family and friends, and expectations. being free from illness and injury. It is also deemed socially moral for organ- The media puts much emphasis on the isations to seek to prevent and/or reduce restrictions of health and safety, often using accidents and injuries, including the pain and “The world gone mad” scenarios, which have suffering of employees. prevented events going ahead, or restricted Morally, it is not acceptable to put employees the liberties of individuals, and citing health at risk or to expect them to risk life or limb in and safety (mostly incorrectly) as the cause. order for the organisation to make money or The extent of the problem that is faced is to achieve its goals. undermined by such reporting and does Ultimately, it is unacceptable to put people nothing to promote the positivity that actively at risk from health and safety failures. caring for health and safety brings. Regardless of work activity, no one should be Who does not want to be safe and healthy! at risk of injury, illness, or death. Both at work and at home, it is our moral right The social attitude to work has undergone a and should be reported as such, in the media considerable change, from previously tolerat- and within organisations. Health and safety ing poor working environments and conditions still has a long way to go, as nationally and and accepting injuries and ill health as part internationally the accident rates are still too of the job, to currently having high expecta- high and we are still getting things wrong, as tions of a comfortable working environment, the statistics below confirm. INFORMATION FOR NATIONAL STUDENTS The information within this section is required for the national syllabus but can also be studied by international students providing information on UK legislation. The following figures are extracted from the HSE summary statistics for Great Britain in 2020: SCRIBBLES AND NOTES 5 NGIG Nov22.indb 5 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.1 MORALS AND MONEY INFORMATION FOR INTERNATIONAL STUDENTS The information within this section is required for the international syllabus but can also be studied by national students providing information on global standards. According to the ILO, their figures reveal The human cost of this daily adversity is (2019): vast, and the economic burden of poor occupational safety and health practices is n More than 2.78 million deaths per year estimated at 3.94 per cent of global Gross n Additionally, there are some 374 million Domestic Product each year. non-fatal work-related injuries each year, resulting in more than 4 days of You can access the latest figures via: absences from work. https://www.ilo.org/global/ n Working children suffer 12 million occu- topics/safety-and-health-at- pational accidents and an estimated work/lang--en/index.htm 12,000 of them are fatal n Asbestos alone kills more than 100,000 workers every year. Of course, the moral argument should be the physical, or psychological); impact on health most compelling and relies on the premise or their state of well-being, then this argument that, “everyone wants to do the right thing, takes precedent over “getting the work out to ensure either themselves or others are the door”. not harmed”. The moral argument is also Health and safety is not just concerned with described as, “what a reasonable person objects and premises; predominantly the would do”. objective is to protect people. To do this Sometimes this premise can be lost in the introduces a broader challenge because it is pursuit of profit as that is where the focus is in extremely difficult to legislate for behaviour. business terms. The proactive management of health and safety at work helps organisations prevent The moral thing to do of course is ensure injuries and ill-health and if this is carried suitable provisions are made within each out effectively, the organisation will see the organisation to ensure the balance is in rewards in increased morale, productivity, the favour of the moral expectations. If the trust, confidence, and increased reputation as employer is unreasonably exposing its work- being an organisation that actively cares for force to situations that could endanger them, its employees. This in turn results in a suc- leading to either loss of life; injury (mental, cessful profitable business. 6 SCRIBBLES AND NOTES NGIG Nov22.indb 6 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.1 MORALS AND MONEY Financial costs of incidents (insured and uninsured) The benefits of health and safety cannot be Health and safety is deeply rooted within the measured in the standard way of using sales means to prevent accident and injury. It is forecasts, but there are significant cost bene- when such events take place that the true fits that you need to be aware of and to utilise costs of the failure to manage safety are most as a way of persuading management that apparent. there is a need to invest in improving health and safety. INFORMATION FOR NATIONAL STUDENTS The information within this section is required for the national syllabus but can also be studied by international students providing information on UK legislation. Employers’ Liability Insurance In the UK legally, an employer must have under the Employers’ Liability Employers’ Liability Insurance to insure (Compulsory Insurance) Act against the injury or ill-health of employees. 1969. This insurance must be a minimum cover https://www.legislation.gov.uk/ of five million pounds. This is required ukpga/1969/57/contents INFORMATION FOR INTERNATIONAL STUDENTS The information within this section is required for the international syllabus but can also be studied by national students providing information on global standards. For information on employee insurance https://www.ilo.org/dyn/ internationally, please see the ILO normlex/en/f?p=NORMLEX- Convention C121 and refer to your own PUB:12100:0::NO::P12100_ILO_ National Legislation. CODE:C121 SCRIBBLES AND NOTES 7 NGIG Nov22.indb 7 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.1 MORALS AND MONEY Direct and indirect costs insurance to cover for injuries and ill health experienced by their employees while at work. When an accident occurs, there are two types of costs that are accrued: Employers may also have insurance for accidents involving vehicles, and possibly Direct costs are concerned with the imme- third-party, buildings insurance or product diate costs of the accident and will include liability insurance. However, insurance damage to any equipment, the loss of the policies only cover a small proportion of the worker if they have to take a leave of absence costs of accidents. It is important you check and potentially fines or compensation. Some your organisation’s policy to understand the of which may be insurable. scope of cover. Indirect costs are concerned with the less obvious costs, such as replacement labour, Uninsured costs clean up after the incident, loss of sales, and The uninsured costs are estimated at about loss of confidence of the workforce, which ten times the amount of the actual incident. may result in employees deciding to leave These consist mostly of indirect costs, such the company. In general, you cannot insure as, the repair or replacement of damaged against indirect cost. machinery or work equipment and the need to hire additional equipment or additional labour. The following diagram illustrates that the insured costs are just the tip of the iceberg. Effective health and safety can improve Beneath are far more substantial costs that production and product quality, and boost cannot be insured against. motivation within the workforce. This in turn helps to lower the staff turnover rate and to save on such costs as retraining and job advertising. A motivated workforce and improved pro- ductivity have a positive impact on the organisation’s image and reputation, which will help with the development of goodwill and stronger relationships with other organ- isations, resulting in further business and profitability. Ineffective health and safety conversely, is costly in terms of the need to tender for new business which may have been lost, which costs money and time. And of course, time is money. Through the reduction of accidents and Insured costs claims, insurance issues are less costly. If You are responsible for the health and safety organisations can demonstrate compliance, of your employees while they are at work. they can achieve lower premiums. In some countries, employers must have 8 SCRIBBLES AND NOTES NGIG Nov22.indb 8 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.1 MORALS AND MONEY In addition, internal resources are not drained n Loss of expertise/experience due to accident and incident investigations, n Loss of morale/bad publicity attending court and facilitating enforcement officer visits, all of which can be very time Example – accident-related costs consuming if the organisation is constantly An employee at a small engineering firm, involved with incidents. And should an inspec- which employs 15 workers, gets their sleeve tor need to visit site this will result in a Fee for caught on a rotating drill. This results in the Intervention (FFI) from the HSE. More on the employee breaking both bones in their lower FFI is discussed in module 1.2. arm and having to spend 12 days in hospital. More examples of uninsured costs include: Due to the extent of the injury, the employee is unable to work for 3 months. Upon their n Product and material damage return to work, they spend the next 5 months n Lost production time on admin duties, meaning that they are unable n Legal costs to operate machinery for a total of 8 months. n Overtime and temporary/relocated labour As a result of this accident, the Managing n Investigation time/administration Director is prosecuted, and two employees are made redundant to prevent the company n Supervisors/first aider time going out of business. n Additional recruitment/training Below is an example of potential costs to the n Fines engineering firm (use the currency relevant to your country): SCRIBBLES AND NOTES 9 NGIG Nov22.indb 9 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.1 MORALS AND MONEY INCIDENT POTENTIAL COST Wages for injured worker over period £8,000 Lost production/remedial work required £7,000 Wages for replacement worker £6,000 Increase in Insurance Premiums £4,000 Loss of time of manager/MD £4,000 Fines and court costs £3,000 Overtime wages to cover lost production £3,000 Legal expenses £45,000 Total cost to business £80,000 USEFUL DOCUMENTS Health and safety made simple: This guide is for those who want some basic information on what they must do to ensure the basics for your business  they comply with health and safety law. https://www.hse.gov.uk/pubns/ indg449.pdf The health and safety toolbox: Packed with simple, straightforward advice, this book covers the most common workplace how to control risks at work  hazards. It shows how most small to medi- um-sized businesses can put measures in place to control the risks. https://www.hse.gov.uk/pubns/ priced/hsg268.pdf 10 SCRIBBLES AND NOTES NGIG Nov22.indb 10 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.1 MORALS AND MONEY CASE STUDY National grid fined £4m for handing over incomplete gas records Energy giant National Grid Gas has been hit members of the public were exposed to as a with a £4 million penalty for passing on result of breaches of the Health and Safety incomplete records when it sold its gas at Work Act. At Liverpool Crown Court, distribution networks five years ago. The National Grid Gas admitted breaching HSE’s investigation revealed the incomplete section 3(1) of the Health and Safety at Work records were transferred to Cadent. Act. As well as the £4 million fine, the utility company was ordered to pay £91,805 in Records on 769 buildings were missing, prosecution costs. meaning gas risers in high rise multiple occupancy buildings (HRMOBs) had not been subject to a condition survey, inspection, or routine maintenance for a number of years. Investigators found that National Grid Gas failed to ensure that 112 HRMOBs had pipeline isolation valves (PIVs) so that gas to these buildings could be isolated in the event of an incident. The HSE launched a criminal investigation that considered the risk that residents and (Source: IOSH Magazine February 2021) SCRIBBLES AND NOTES 11 NGIG Nov22.indb 11 14/11/2022 10:37  SCRIBBLES AND NOTES NGIG Nov22.indb 12 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION INFORMATION FOR NATIONAL STUDENTS The information within this section is required for the national syllabus but can also be studied by international students providing information on UK legislation. SYLLABUS CONTENT: THE FORCE OF LAW – PUNISHMENT AND COMPENSATION In this element we will cover: n Sources of law u Statute law: the legal status and relationships between Acts of Parliament, regulations, approved codes of practice, official guidance; absolute and qualified duties (practicable and reasonably practicable) u Common law: precedents and case law; the importance of common law u Relevance of statute and common law to criminal and civil law 01 n Types of law u Criminal law: offence against the state; prosecution to establish guilt; burden and onus of proof (see s40 Health and Safety at Work etc., Act 1974) u Civil law: private individual seeking compensation; burden of proof; statute barred n Criminal law liabilities u Role, functions and powers of: the Health and Safety Executive (HSE) / HSE Northern Ireland (HSENI), Procurator Fiscal (Scotland) and local authorities u Why fees for intervention (FFI) are charged (material breach of legislation) u Powers of inspectors (see s20 of the Health and Safety at Work etc., Act 1974) u Enforcement notices (improvement, prohibition): conditions of serving; effects; procedures; rights and effects of appeal; penalties for failure to comply u Simple cautions u Prosecution: summary and indictable (solemn in Scotland) offences and relevant penalties (including disqualification of directors) u The Corporate Manslaughter and Corporate Homicide Act 2007: the offence and available penalties u Defences 13 NGIG Nov22.indb 13 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION n Civil law liabilities u Civil wrong (tort/delict) u Tort/delict of negligence u Duty of care (neighbour principle) u Tests and defences for tort/delict of negligence: duty owed/duty breached/ injury or damage sustained u Contributory negligence u Vicarious liability u The employer’s legal duty to provide a safe place of work, safe plant and equipment, safe systems of work, training and supervision, and competent workers u Breach of statutory duty in relation to new and expectant mothers. LEGISLATION The Health and Safety at Work etc., Act (1974) Aim is to set out general duties which employers have towards employees and members of the public and employees have to themselves and to each other. https://www.legislation.gov.uk/ukpga/1974/37/contents 14 SCRIBBLES AND NOTES NGIG Nov22.indb 14 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION In addition to moral and financial reasons for Statute law managing health and safety, as discussed in the previous element there are also legal Statute law, or statutes, are the written law reasons. So, in order to comply, we need of the land, which are introduced through to have a full understanding of how the law the parliamentary process and are generally works and the force of the law in terms of known as “acts or primary legislation”, and either punishment or compensation, which are: are the main consequences if you don’t n Written down, for example the Health comply. and Safety at Work etc., Act 1974 or in the form of Regulations (or known Sources of law as a statutory instrument) such as Management of Health and Safety at There are two sources of law that we will Work Regulations 1999 need to discuss and explain, which are statute law and common law. n Brought into force by the UK Parliament through Bills which pass through the House of Commons and House of Lords, and then are given royal assent, before they become an Act. The legal status and relationship between Acts of Parliament, regulations, approved codes of practice and official guidance: Acts of Parliament Acts lay down general duties to be followed and make provisions for the Regulations and ACOPs (Approved Codes of Practice) to be made underneath the Act that provide the more specific detail for employers to follow. Below is an example of the application of acts, regulations, approved codes of prac- tice and guidance in relation to temperature. SCRIBBLES AND NOTES 15 NGIG Nov22.indb 15 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION Acts HASAW Act 1974 – Section 2.2(e) Statute The provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work. Regulations The Workplace (Health, Safety and Welfare) Regulations 1992 – Regulation 7 Temperature Statutory instruments During working hours, the temperature in all work- places inside buildings shall be reasonable. Approved Codes of Practice The temperature in a workplace should normally be at least 16 degrees Celsius. If work involves rigorous physical effort, the temperature should be at least 13 degrees Celsius. Guidance Thermal comfort Best Practice Heat Stress Heat illness in mines Sun protection for outdoor workers Regulations n Health and Safety (Display Screen Regulations are known as “statutory instru- Equipment) Regulations 1992 ments or delegated legislation” and are Approved Codes of Practice (ACOPs) made under the Health and Safety at Work Approved Codes of Practice are produced etc., Act 1974. The HSE and other interested by the Health and Safety Executive with parties are consulted prior to implementa- consent from the Secretary of State. They tion to ensure that the Regulations are clear, are produced to give a recognised interpre- achievable, and maintain the spirit of the tation and methods of how to comply with Act. Regulations contain more specific detail the relevant legislation. This image shows than the Act, normally on specific hazards the front cover of the ACOP L24: Workplace and/or activities. health, safety and welfare. Some examples of health and safety regula- Approved Codes of Practice are not legally tions are: binding but do have a special legal status. n Management of Health and Safety at If you do not follow them, then you may not Work Regulations 1999 be doing enough to be legally compliant. This gives Approved Codes of Practice n Provision and Use of Work Equipment what is known as a “quasi legal” standing. Regulations 1998 The requirement is not that you have to n Workplace (Health, Safety and Welfare) comply, but if you choose not to follow the Regulations 1992 Code there must be sufficient evidence by 16 SCRIBBLES AND NOTES NGIG Nov22.indb 16 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION some other means to prove that the meas- advice contained in ACOPs and provides ures adopted achieve compliance with the information that an organisation can adopt Regulations in question. and incorporate into procedures and safe working practices. Although it holds no Due to the nature of these Codes of legal standing and cannot be used in a court Practice, they are easier to amend than of law as a reason for prosecution, it may legislation, so the guidance can be given be referred to in court as a fair argument of to industry more quickly than having to what may have been done to prevent injury go through an amendment stage or the and/or ill-health. parliamentary process. It is recommended that these are always used as a first point of Absolute and qualified duties reference when requiring interpretation of It is important to know that the requirement legislation. You generally get the Regulation, to fulfil legal duties does vary between leg- ACOP and guidance in one document. islation, and in some cases, within the same legislation. There are 3 levels of duty, and all must be complied with by the duty holder: n Absolute – this is the highest level of duty and the expression, “shall” is used to express this duty. Wherever it states “shall” in any piece of legislation this means it is unqualified and you must do it. n Practicable – “shall” still applies but may be qualified by stating “where practic- able”, which means where it is feasibly possible, regardless of the time, incon- venience or effort involved of doing so. n Reasonably practicable – “shall” still applies but may be qualified by stating “where reasonably practical”, which means that the time, inconvenience, money and effort of fulfilling these duties should be proportionate to the level of risk, i.e., it would be expected to invest more to control a hazard where Guidance the level of risk is higher. Official Guidance notes are provided by Common law: precedents and case the Health and Safety Executive to give a law; the importance of common law greater understanding or solutions (best practice advice), regarding either a certain Common Law is established through previ- Regulation or a requirement of a Regulation, ous civil cases, which through the findings e.g., guidance on the use of circular saws. and rulings of the Judge set a judicial This Guidance is more practical than the precedent (or past precedent) and by which SCRIBBLES AND NOTES 17 NGIG Nov22.indb 17 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION similar cases can be measured against to Types of law provide a consistent outcome and these form a body of case law. Not to be confused There are two different types of law that with statute law as described above. you need to be aware of and to understand throughout your health and safety studies: It may be beneficial to summarise the civil and criminal law. sources of common law as follows: n Is based on decisions made by judges Criminal law: offence against the through “judicial precedent” state; prosecution to establish guilt; burden and onus of proof (see s40 n By using case law, which is passed down Health and Safety at Work etc., Act over time 1974) n Applies to both Criminal and Civil Law Offence against the state n An example being the Donaghue and Stevenson case cited below under the Criminal law is mainly concerned with “neighbour principle” still continues to be statute law, as the title suggests, it is a used today. crime against the state to breach this law. Criminal law is the process by which the Relevance of statute and common law means of punishment of wrongful acts are to criminal and civil law addressed, which usually consists of fines We have discussed above the two sources or imprisonment. of law, statute and common, so now we will Prosecution to establish guilt discuss the relevance of these sources of Within criminal law it is up to the prosecution law in relation to the two different types of to establish guilt and these cases are heard law: civil and criminal. in the Magistrates’ Court, which are known The main relevance between the two is that as summary offences with possible fines both sources of law can be used for both being unlimited and/or 6 months imprison- civil and criminal law, but before we can ment. The time limit to bring the case is 6 fully understand this, we need to under- months. stand civil and criminal law more fully to More serious cases are heard in Crown see how these sources are used, and this is Court. These are indictable offences discussed below. and fines are unlimited and/or 2 years 18 SCRIBBLES AND NOTES NGIG Nov22.indb 18 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION imprisonment. The Magistrates decide if S40 of the Health and Safety at Work etc. there is sufficient evidence to try the case Act 1974. and can refer it to the Crown Court. There is no time limit. Civil law: private individual seeking Burden and onus of proof compensation; burden of proof; statute barred The burden and onus of proof is that the prosecution must convince the judge and Civil law is mainly concerned with common jury, through the degree of evidence pro- law, as the title suggests, it is more to do duced (generally about 90%) to establish with civil wrongs. It is not generally a crime guilt beyond all reasonable doubt. under statute law that has been committed here, but in health and safety terms, a wrong This high degree often leads to acquittal, (or a civil tort or delict in Scotland) has been even when the authority trying the case committed against another individual. feels that the guilt of the accused, based on the evidence, is more probable than their A civil action can be brought against innocence. Even so, if the slightest doubt someone when the other party feels that a as to the guilt of the accused is created in wrongdoing has been committed against the mind of the Court, they are given the them. Generally, a private individual seeking benefit of the doubt and their innocence compensation for the wrongdoing. proclaimed. Civil law aims to restore justice to those The burden and onus of proof, which is who have been wrongfully harmed and beyond a reasonable doubt as outlined in this is generally accomplished or decided upon by looking at past cases, as discussed SCRIBBLES AND NOTES 19 NGIG Nov22.indb 19 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION above in Common Law, to see if there is any regarding personal injuries due to a tort for past precedent they can use regarding the negligence or breach of duty, the time limit resolution. to submit the claim is 3 years from the date of knowledge or date of injury. Civil law is based on decisions made by judges (from common law past precedents) Within this Act, there are different limitation and aims to award compensation to restore periods for different types of cause of the claimant (the person bringing the claim) action. For example, the limitation period to the same position prior to the wrongful is six years for a normal contract claim but act. To be found in breach of civil law does 12 years if the contract was created by not necessarily mean that any crime has deed. If the claim is brought to the court been committed. outside of this time it will be barred, and the claimant may be prevented from continuing Burden of proof with the claim against the employer. So it is The burden of proof is based on the balance necessary to determine whether or not the of probabilities. This is a lesser standard limitation period has already expired. than in a criminal case. Civil law needs If a claim proceeds out of time, the defend- a minimum proof of 51% for a case to be ant will be able to plead the defence of successful under the balance of probability. limitation and the claimant will have the Essentially, an employer is 100% respon- burden of proving that the cause of action sible for their duty of care, but if they can arose within the relevant statutory period. demonstrate that they have taken reasona- ble actions, such as provided training, safe systems of work, suitable equipment, etc., Criminal law liabilities the percentage of probabilities decreases. The following diagram illustrates the UK The judge will award compensation accord- court structure and both branches which ing to the extent of probability. If the judge relate to Civil and Criminal Law. thinks the case is 70% right, they will award more than if the judge thinks the claimant is The roles functions and powers of: only 60% correct. The Health and Safety Executive (HSE) / HSE Northern Ireland Damages are intended to return the claimant (HSENI), Procurator Fiscal (Scotland) to their original position before the injury. and local authorities Damages are split into two categories: Health and Safety Executive (HSE) / HSE n General (for non-monetary loss, e.g., Northern Ireland (HSENI), Procurator pain and suffering) Fiscal (Scotland) n Special (for financial loss, e.g., medical The role of the Health and Safety Executive costs, lost earnings, etc.) is threefold. It advises the Secretary of State in the creation and amendment of Statute barred regulations and also provides information Claims may be statute barred (bar as in to and guidance for all industries. In addition, prevent from bringing the claim under the the Health and Safety Executive provides relevant statute) under the Limitations Act enforcement for directly regulated indus- 1980. Under the Limitations Act 1980 S11, tries, which we will learn more about. 20 SCRIBBLES AND NOTES NGIG Nov22.indb 20 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION The HSENI is a Northern Ireland non- and with the same authority as Health and departmental public body sponsored by the Safety Executive Inspectors. Department for the Economy. It is responsi- Activities that are enforced by the Local ble for the encouragement, regulation and Authorities include: enforcement of occupational health and safety in Northern Ireland. Its functions are n Retail similar to those of the Health and Safety n Offices Executive in the rest of the United Kingdom. n Catering HSE and HSENI collaborate to ensure the n Hotels and guest houses effective delivery in the UK of the promotion and enforcement of health and safety at n Restaurants work standards. n Leisure facilities The Crown Office and Procurator Fiscal n Churches and places of worship Service (COPFS) is Scotland’s prosecution n Car parking facilities service. They receive reports about crimes from the police and other reporting agen- Fire Authorities cies and then decide what action to take, Since the introduction of the Regulatory including whether to prosecute someone Reform (Fire Safety) Order in 2005, and also look into deaths that need further Fire Authorities are now involved with explanation. enforcement for fire-related compliance. Fire Inspectors have the same rights and Local Authorities (LAs) authority as Health and Safety Executive Local Authorities provide enforcement Inspectors and have the ability to issue for industries that are not directly regu- improvement and prohibition notices for lated by the Health and Safety Executive. fire-related breaches. Their authority does This is achieved through Local Authority not extend to the enforcement of any other Inspectors, who work to the same guidance health and safety breaches or practices, except for fire. SCRIBBLES AND NOTES 21 NGIG Nov22.indb 21 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION Why fees for intervention (FFI) payable for handling disputes that are not are charged (material breach of upheld and will be applied to all HSE staff legislation) involved in responding to the dispute. Under regulations 23 to 25 of the Health The introduction of the FFI has firmly estab- and Safety (Fees) Regulations 2012, the lished the HSE as an enforcement body and Health and Safety Executive have been not an advisory service. able to recover costs for carrying out some It helps to ensure compliance, which in turn of its activities from those organisations makes enforcement action, such as notices found to be in material breach of health and and prosecution that potentially lead to fines safety law. and imprisonment, less likely to occur. This cost recovery approach is known as a Controlling the risks effectively within the Fee for Intervention (FFI) and is intended to workplace also prevents serious injury, shift enforcement costs from public funding which reduces the likelihood of civil claims to those organisations that breach the law. from those seeking compensation for losses The FFI charges apply when the HSE inspec- or injuries. tor identifies a ‘material breach’, which is where an organisation has breached (failed Powers of inspectors (see s20 of the to carry out a duty or break a contract) a Health and Safety at Work etc. Act health and safety law and the HSE inspector 1974) believes this is serious enough for them to Provisions for the powers of Inspectors are take action. This will either be a notification set out in the Health and Safety at Work etc. of contravention, an improvement or prohibi- Act 1974 under Section 20, which permits tion notice, or a prosecution. them to stop works where necessary, issue The fees include site visits, time spent notices and begin prosecution in cases of writing letters or investigating a case and/ serious breaches. or any other activities related to the material Inspectors also have the right to be involved breach, including charging for anyone else in accident investigations. conducting work for the HSE. As of 2021 the fees chargeable are £160 per hour. An Inspector may choose to visit a particu- Keep your eye on these fees as they do go lar organisation for a number of reasons: up annually. Such charges are usually not to carry out routine inspections; to follow covered by company insurance. The HSE retains a percentage of all money raised, with the balance going to the Treasury. If organisations are dissatisfied with the charges, a query or dispute may be raised. The concern will be considered by a panel of HSE staff (managers who are independ- ent of the management chain responsible for the work that generated the invoice) and an independent representative. A fee is 22 SCRIBBLES AND NOTES NGIG Nov22.indb 22 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION up a complaint; to conduct an accident Improvement notice investigation; to carry out checks following the receipt of an incident reported under n Such a notice can be served when, in the Reporting of Injuries, Diseases and the Inspector’s opinion, there is a breach Dangerous Occurrences Regulations 2013. of relevant statutory provisions; or where there has been a breach which is Due to the varied reasons an Inspector can likely to be continued or repeated, but visit, you may not receive advance warning no imminent risk or harm. of the visit. n The notice will require the hazard to be Inspectors have the right to enter premises resolved over a given time period. at a reasonable time or where it is sus- n Failure to comply with the notice may pected there is a dangerous situation. In result in a prohibition notice or prose- the event that an Inspector is refused entry, cution. A typical example is a missing they have the power to gain entry with document, for example, lack of a suitable assistance from the police. and sufficient risk assessment. The remit of inspection gives them the Prohibition notice right to undertake examinations/inspec- tions; to take measurements/photographs/ n This is the more serious of the notices recordings for the purpose of investigation; and is issued when, in the Inspector’s and to ask and take copies of relevant opinion there is, or is likely to be, a risk documentation. of serious or imminent danger. It is also within their rights to request assis- n There does not have to be a breach of tance or facilitation with the inspection from legislation for the notice to be served relevant people with control or responsibility (although there normally will be), but in within the organisation. their opinion there is likely to be. n The notice will prevent the use of the The Inspector also has the right to take equipment or premises in question. authorised people or equipment/materials with them on a visit. n Failure to comply with the notice is a criminal offence. A typical example is Inspectors may also test any article or an unsafe scaffold or a missing machine substance and take samples. guard. Enforcement notices (improvement, Conditions for serving prohibition): conditions of serving; Before serving a notice, the inspector effects; procedures; rights and should be of the considered opinion, based effects of appeal; penalties for failure on reasonable grounds, that the chosen to comply form of notice (improvement or prohibition) is justified. They should also: There are two different types of notice that an Inspector can serve: an improvement n Ensure that before issuing a notice they notice and a prohibition notice. These have to have gathered any evidence which be served in accordance with S21 and 22 of may not be available after issuing the Health and Safety at Work etc. Act 1974. it, i.e., when people may not wish to SCRIBBLES AND NOTES 23 NGIG Nov22.indb 23 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION co-operate. They may wish to take pho- Penalties for failing to comply tographs of site conditions and possibly Prosecution may follow for failure to statements comply with enforcement or where there is n Decide whether the information available non-compliance, such as: is strong enough to support the notice if n Obstructing an inspector the duty holder appeals. n Contravention of a requirement imposed Generally, a notice is serviced immediately by inspector on hand on site, posted to or left at the n Preventing others from appearing before recipients’ proper address and the receipt of an inspector the notice must be confirmed accepted. n Contravening a prohibition or improve- Right and effects of an appeal ment notice Under s24 of the Health and Safety at Work n Making a false statement etc. Act 1974, an organisation can appeal n Falsifying records against either notice at an Employment n Preventing access of an inspector. Tribunal, although any appeal must be lodged with 21 days of receiving the notice. For the improvement notice, the notice will be suspended until the appeal is heard, while prohibition notice continues to remain in force until an appeal has been heard. An appeal is designed for the person in receipt of the notice to contest it. An appeal will usually be made on the grounds of: n The notice has not been properly served; or n cannot be complied with because the Simple cautions wording is so confusing; or was, in the A simple caution (once known as a formal or opinion of the court, in fact complied police caution) is a formal warning that may with be given to persons aged 18 or over who n Incorrect interpretation of the regula- admit to committing an offence. The simple tions made by the inspector caution scheme is designed to provide a n The Inspector exceeded their powers means of dealing with offending without a n A breach of the law was admitted, but prosecution, when there is evidence of an the claim is believed to be insignificant offence, but the public interest does not require a prosecution. n The breach of the law is admitted, but the guidance to rectify it is not possible Cautions are included in the Enforcement or practicable. Policy Statement (EPS) as one of the possi- ble responses to a criminal offence available to inspectors. 24 SCRIBBLES AND NOTES NGIG Nov22.indb 24 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION A simple caution is defined in the EPS as: “a 6 months ordered by magistrates or 2 years statement by an Inspector, that is accepted via the Crown Court. Crown Court cases in writing by the duty holder, that the duty are heard by a judge and jury. In England holder has committed an offence for which and Wales there are 12 members of the jury, there is a realistic prospect of conviction. A while in Scotland there are 15. simple caution may only be used where a Disqualification of directors prosecution could be properly brought.” In addition to fines and imprisonment, The Cautions are entirely different from the Company Directors Disqualification Act 1986 caution given by an Inspector prior to asking empowers a court to make a disqualification questions of a suspect concerning an order against a person convicted of an alleged offence. indictable offence (Crown Court). Prosecution: summary and indictable Disqualified persons must not be a director, (solemn in Scotland) offences liquidator or administrator of a company, and relevant penalties (including or receiver and manager of a company’s disqualification of directors) property, or in any way, directly or indirectly, be concerned or take part in the promotion, Prosecutions will usually be brought about formation, or management of a company for after a visit from an enforcement agency a specified period. and might begin with an enforcement notice being served. Corporate Manslaughter and Corporate Homicide Act 2007 Cases are either summary offences or indictable offences, depending on the Within the Corporate Manslaughter and magnitude of the act or omission and scale Corporate Homicide Act 2007 companies of the breach of the health and safety and organisations can be found guilty legislation. of corporate manslaughter as a result of serious management failures resulting in a Summary offences are heard within the gross breach of a duty of care. Magistrates’ Court, while indictable offences are assessed first by the Magistrates’ Court Prosecutions will be of the corporate body and then referred to Crown Court if it is and not individuals. As with prosecutions believed there is sufficient evidence. against companies, organisations will be rep- resented by their lawyers in court, although Indictable (solemn in Scotland) offences individual directors, managers and other are very serious and include murder and employees may be called as witnesses. manslaughter. There is, however, a third option, where the case can be triable either Penalties will include unlimited fines, reme- way. This option is used depending on the dial orders and publicity orders. accused and the severity of the case. n A fine – there is no upper limit to what For each breach, fines are unlimited in this can be the Magistrates’ Court and Crown Court. n A publicity order requires an organisa- Prison sentences can be issued by both tion to publicise the fact of its conviction courts, with a maximum prison sentence of and certain details of the offence, in a SCRIBBLES AND NOTES 25 NGIG Nov22.indb 25 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION way specified by the court. Such as via a Civil wrong (tort/delict) trade magazine or public notice A tort is a civil wrong (in English law) and n A remedial order requires the organi- may involve either common or statute law. sation to address the cause of the fatal In Scotland, it is known as “delict”, although injury. the meaning is the same. Defences It is an act or omission that leads to injury or harm or some form of loss to another, which In order to form a defence under Criminal then amounts to a civil wrong for which Law, the following points each have to be courts impose liability. considered: There are several torts, and these include n Individuals must prove that they took all defamation, nuisance, breach of statutory reasonable care duty, and negligence. n Employers must prove that they took all reasonably foreseeable precautions With regard to health and safety, this can either be the tort of negligence or the tort of n Due diligence must have been exercised breach of statutory duty. n The accused must prove that it was not practicable or reasonably practicable (whichever the case may be) to do more. Civil law liabilities As we learned earlier, civil claims form part of the Civil Law. Cases can be brought by individuals and are heard through the Civil Court structure. Civil Courts consist of the County Court and the High Court. The person seeking retribution is known as the claimant and the person accused of the Duty of care (neighbour principle) wrongdoing is the defendant. This principle was established in the case of Donoghue v. Stevenson (1932), commonly known as the case of “the snail in the bottle”. 26 SCRIBBLES AND NOTES NGIG Nov22.indb 26 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION CASE LAW Donoghue v. Stevenson (1932) This case involved two ladies. A friend of the claimant purchased a bottle of ginger beer. The claimant drank some of the beer in which was found the remains of a decomposed snail. She was subsequently ill and sued the manufacturer. She was unable to sue the manufacturer for breach of contract because the only contract that existed was with the claimant’s friend who had bought the ginger beer and the manufacturer. The House of Lords held that the defendant being the test whether someone is a “neighbour”, in manufacturer of the ginger beer owed a the legal sense, can be established if it can duty of care to the claimant as the be reasonably foreseen that the act or consumer of the beer to take reasonable omission may cause harm to them. care to ensure that the bottle did not To summarise, it was established in this contain anything that might cause harm. case that, where a duty of care does not In this case the judge said that reasonable already exist, we shall owe a reasonable care must be taken to avoid acts or duty of care to our neighbours. A omissions which, with reasonable “Neighbour” is therefore considered to be foresight, you would know would be likely anyone that could be affected by our acts to injure your neighbour. This is known as or omissions. the “Neighbour Principle”. Therefore, the https://www.lawteacher.net/cases/donoghue-v-stevenson.php SCRIBBLES AND NOTES 27 NGIG Nov22.indb 27 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION Tests and defences for tort/delict of Vicarious liability negligence An employer can be held “vicariously liable” The tort of negligence basically gives the for an unauthorised negligent act commit- affected party an opportunity to seek com- ted by one of his employees. This means pensation for the wrongful act or omission, that should an employee who commits an i.e., failing in a duty of care, failing to do offence while at work and under the direc- something a reasonable person would do, or tion of the employer, the employer would be doing something a reasonable person would held wholly accountable. not do. To bring about a case of negligence, The employer may still be liable, even if the specific criteria has to be met. employee had been specifically forbidden The criteria are: from doing something. That said, this does not affect the employee’s duties to take n A duty of care was owed reasonable care of their own health and n The duty of care was breached safety and others who may be affected by n Injury or damage sustained. their activities. It is then the defendant’s opportunity to Claimant voluntarily accepted the risk respond to the claim. The defence will need (volenti non fit injuria) to rely on one or more of the following: n Duty of care NOT owed, e.g., defendant Volenti non fit injuria means was a third party/employee not acting in ‘the willing cannot be course of employment injured’ n Duty of care NOT breached, e.g., accident not reasonably foreseeable/ no reasonable alternative to way work conducted) n Breach DID NOT directly result in harm/injury, e.g., injury was caused by something not related to work, such as hearing loss from sporting activities. Contributory negligence This is a form of defence, albeit a partial one, and involves the defendant taking The defence operates by asserting that the responsibility for a proportion of the blame. plaintiff freely and voluntarily assumed the risk that caused the injury, so should not be Using this type of defence requires the allowed to blame someone else. defendant to identify not only their own failures but also to apportion some of the Unlike contributory negligence, volenti is blame to either a third party or the claimant. a total defence. That is, if it succeeds the The claimant’s award is then reduced, or plaintiff gets nothing at all. However, to can even be denied entirely, if they were to succeed, the defendant must show that blame. the plaintiff consented to the actual risk 28 SCRIBBLES AND NOTES NGIG Nov22.indb 28 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION to which he or she was exposed, either of work, he is performing the duty of the expressly or by inference. employer. The employer remains vicariously responsible for the agent’s negligence. Defences based on express consent are relatively rare, but they do occur. A duty rests on the employer to take rea- sonable care for the safety of his workmen, The Employer’s legal duty to provide whether the employer is an individual, a a safe place of work, safe plant firm or company, and whether or not the and equipment, safe systems of employer takes any share in the conduct of work, training and supervision, and the operations. competent workers These duties are owed by the employer and The Common Law duties of an employer as such cannot be delegated to any other were established in 1938, from the rulings person. Although the means to implement passed in the case of Wilsons & Clyde Coal these provisions might be allocated to others Co. Ltd v. English, see below. in the workforce to implement, the ultimate, responsibility rests with the employer. Where an agent is performing the employer’s duty of providing a safe system CASE LAW Wilsons & Clyde Coal Co. Ltd v English Mr English, a miner, was injured at work equipment was switched on and the when he was crushed by haulage plant. He claimant was crushed between the equip- claimed damages from his employer, the ment and the wall of the mine. The mine owner. The employer argued that, at defendant claimed that the claimant could the time of the accident, responsibility for have got out of the pit by a different route the safety of the mine had been delegated or could have called to the operator of the to his agent. The common law duties of an haulage equipment telling him of his employer to his employees were identified presence. in general terms in this case. These duties The House of Lords held that the employer comprise what is called employers’ liability. owes a duty of care to his employee which In this case the employers were liable for is threefold: injuries caused to a miner as a result of an n A safe place of work (including safe unsafe system of work. The claimant was access and egress) working underground near the pit bottom n Safe equipment at the end of his shift when the haulage SCRIBBLES AND NOTES 29 NGIG Nov22.indb 29 14/11/2022 10:37  ELEMENT 1 WHY WE SHOULD MANAGE WORKPLACE HEALTH AND SAFETY 1.2n THE FORCE OF LAW – PUNISHMENT AND COMPENSATION n A Safe system of work and provision of It was therefore ruled under Common Law competent employees. (not Statute), that the employer has a duty to provide for his employees: This obligation is fulfilled by the exercise of due care and skill. The case was also n A safe place of work (including safe important because it stated that those access/egress) duties were owed personally by the n Safe plant and equipment employer to each employee and were non-delegable, that is to say the n Safe systems of work performance of those duties could be delegated but the responsibility for their n Training and supervision correct discharge could not. n Competent fellow employees. https://www.lawteacher.net/cases/wilsons-and-clyde-coal-v-english.php Breach of statutory duty in relation to Regulations 1999 at Regulation 16, 16a, 17 new and expectant mothers and 17a, stating “so far as it causes damage, be accountable to the new or expectant Specific health and safety requirements mother”. relating to new and expectant mothers at work are contained in the Management of S22 of the Management of Health and Health and Safety at Work Regulations 1999 Safety Regulations 1999 is also relevant Regulations 16 to 18. here with regard to the exclusion of civil Regulation 16 of Management of Health and liability. Safety Regulations places a duty on employ- Once an employer is notified in writing ers to conduct a risk assessment in respect that she is a new or expectant mother, as of new and expectant mothers, and this also requirement under regulation 18, stating that includes women of childbearing age. she is pregnant, or that she has given birth In 2013, the Health and Safety at Work Act within the past six months or that she is (Civil Liability) (Exceptions) Regulations