The general health and safety duties of employers

In this series, we delve into the XpertHR reference manual to find essential
information relating to one of our features. This month’s topic…

Future developments

New guidelines for employers on implementing smoking policies in the workplace
were due for launch in March 2002 but have been delayed indefinitely. In the
meantime, the government is continuing its consideration of adopting an
Approved Code of Practice on passive smoking, as proposed by the Health and
Safety Commission two years ago. One key point at issue is the potential impact
of smoking bans on the hospitality industry.

Workplace requirements

– Regulations may set minimum standards for the employer to follow
determined on the basis of what is "reasonably practicable" or impose
absolute duties, such as a requirement to fence off with a guard or other
protective measure dangerous machinery

– There may be circumstances in which an employer could successfully argue
that the cost of a protective health and safety measure was prohibitively
expensive compared to the minimum benefit that would have been provided by it

– Irrespective of a worker’s employment status, the employer will be
responsible should an individual working within its undertaking suffer an
injury

– Under the Health and Safety at Work Act 1974, section 3(1), employers are
required to conduct their undertaking "in such a way as to ensure, so far
as is reasonably practicable, that persons not in [their] employment who may be
affected thereby are not exposed to risks to their health or safety". This
will include sub-contractors and employees, visitors to the premises,
self-employed workers, occupiers of neighbouring premises and the public at
large

– Employers are required to carry out a hazard analysis study of their
business operation, identify risks through the appointment of competent
persons, analyse them as to their degree of seriousness and put in place
appropriate protective and preventative measures to guard against them

– Health and safety legislation requires employers to take greater care of
more vulnerable employees.

Duties to employees

Health and Safety at Work Act 1974 (HSWA) is the core piece of legislation
concerning health and safety and under it various health and safety regulations
have been enacted.

Some of these regulations, such as the Management of Health and Safety at
Work Regulations 1999 (MHSWR), have a general application to all workplaces and
work activities. Others may be sector- or work-activity specific.

Regulations may set minimum standards for employers to follow determined on
the basis of what is "reasonably practicable" or impose absolute
duties, such as a requirement to fence off, with a guard or other protective
measure, dangerous machinery.

Breaches of health and safety obligations by an employer can lead to
occupational injuries, diseases and deaths to employees and even to members of
the public who might be affected by the employer’s operation. Such breaches can
give rise to:

– enforcement action by the Health & Safety Executive

– civil claims on the part of employees and others

– employment tribunal claims from employees

– criminal sanction against individual employees, directors and other senior
officers, the owners of the business and, if that business is a body corporate,
the body corporate itself.

There is a general duty on every employer under the HSWA, section 2 "to
ensure, so far as is reasonably practicable, the health, safety and welfare at
work of all his employees".

What is "reasonably practicable" in any given situation involves
the employer balancing the risk of injury against the sacrifice involved in
taking safety measures to eliminate or reduce the risk. If there is a gross
disproportion between them, the risk being insignificant compared to the
sacrifice, then compliance will not be reasonably practicable. The employer
must make a judgment as to whether or not the safety measures should be
implemented.

Many factors might be taken into consideration by the employer including the
time, trouble or cost of implementing a particular safety measure.

However, cost in itself will not be an attractive or successful defence for
not taking a particular measure where the risk of injury is disproportionately
high compared to the cost.

If an employer could merely say in defence to an action against it for
breach that it could not afford to implement that particular health and safety
measure, the effectiveness of the legislation would be much diminished.

Put simply, if a safety precaution is reasonably practicable it must be
taken by the employer "unless in the whole circumstances that would be
unreasonable".

However, there may well be circumstances in which an employer could
successfully argue that the cost of a protective health and safety measure was
prohibitively expensive compared to the minimum benefit that would have been
provided by it. Such an argument is likely to succeed only if the employer can
prove that it has, in any event, taken other sufficient "reasonably
practicable measures" to provide for employee health and safety.

The Management of Health and Safety at Work Regulations 1999 (MHSWR) require
all employers to carry out a hazard analysis study of their business operation,
identify risks through the appointment of competent persons, analyse them as to
their degree of seriousness and put in place appropriate protective and
preventative measures to guard against them.

Risk assessments

There are many other regulations that deal with the requirement to carry out
risk assessments and put in place appropriate protective and preventative
measures in relation to specified hazards or workplaces.

However, the MHSWR are of fundamental importance in health and safety law.
Most of the remaining legislative provisions, including other regulations made
pursuant to the EC Framework Directive (known as the six-pack), should be read
in conjunction with them. In any event, in many respects the various sets of
regulations overlap.

Each set of regulations will usually have an associated Approved Code of
Practice and/or guidance notes provided by the Health and Safety Executive or
others.

Vulnerable employees

Health and safety legislation requires employers to take greater care of
more vulnerable employees, whether that is because:

– they have a pre-existing injury (mental or physical)

– they are more susceptible to dangerous working conditions or processes
(such as in the case of pregnant women)

– they cannot appreciate the dangers (because of lack of experience or
maturity, such as in the case of young people)

– they have a disability that otherwise puts them at a disadvantage.

The Management of Health and Safety at Work Regulations 1999 specifically require
employers to take account of individuals’ capabilities when assessing risks,
particularly so in the case of pregnant women and young people.

Questions and answers

What are employers’ duties to its employees regarding health
and safety?

Under the Health and Safety at Work Act 1974, there is a duty
on employers to ensure the health, safety and welfare at work of all its
employees. This duty requires that: plant and systems of work are safe and
properly maintained; employees are provided with adequate information,
instruction, training and supervision; points of entry to and from the
workplace are safe; emergency procedures are adequate; and potentially
dangerous articles and substances are properly handled.

Is an employer at liberty to
decide what is reasonably practicable regarding the level of health and safety
provisions it provides?

Although an employer is at liberty to balance the risk of
injury against the sacrifice involved in taking safety measures to eliminate or
reduce a particular risk, a number of factors should be taken into
consideration, including time, trouble and, to a limited degree, cost. There
are some risks to employees that the Government has decided are too high to
leave to individual employers. For this reason, there are absolute requirements
within health and safety legislation that must be observed.

Are employers responsible for the
health and safety of self-employed or non-employees?

Irrespective of a worker’s employment status, the employer will
be responsible should an individual working within its undertaking suffer an
injury. Under the Health and Safety at Work Act 1974, employers are also
required to ensure that any persons not in their employment, but who may be
affected, are not exposed to risks to their health and safety.

Does an employer have any special
duties towards specific employees?

Yes, health and safety legislation requires employers to take
greater care of its more vulnerable employees. This covers those who: have a
pre-existing injury (mental or physical), are more susceptible to dangerous
working conditions or processes (such as pregnant women), cannot appreciate the
dangers (because of lack of experience or immaturity), or have a disability
that otherwise puts them at a disadvantage.

Action point checklist

– Ensure that subcontractors are
competent and, where appropriate, qualified

– Carry out risk assessments and identify control measures

– Ensure employees are fully informed

– Take appropriate steps to ensure subcontractors comply with
safety measures

– Do not disregard any employee concerns

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