How safe is safe enough?

What is the responsibility of employers under the new HSE strategy for
health and what sort of risk assessments should be undertaken to ensure that
modern working conditions are safe enough? By Linda Goldman and Joan Lewis

At the start of the implementation in 1992 of the European Framework
Directive on Health and Safety – through what are now the Management of Health
and Safety at Work Regulations 1999 (MHSWR) and their offshoots – people
involved in occupational health had concerns about the meaning of ‘competence’
in the light of the requirement that employers must appoint ‘one or more
competent persons’ to assist in undertaking relevant health and safety

Arguably, the most relevant health and safety measure is that of prevention,
although the Government’s recently published strategy (reported in Occupational
Health, April 2004) appears to have shifted the emphasis by focusing on risk
containment.1 Nevertheless, the role of the risk assessment remains a key legal
factor in attempting to ensure that the modern workplace promotes health,
safety and well-being.

The legal framework

In addition to general civil remedies for damages for injuries suffered in
the workplace, the law provides for punishment through prosecutions under the
Health and Safety at Work Act 1974 (HASWA), and subordinate legislation, such
as MHSWR, the Control of Substances Hazardous to Health Regulations 2002
(COSHH) and a whole raft of equally familiar regulations.

The Government’s new strategy highlights the role played by those empowered
to prosecute, namely the Health and Safety Executive (HSE), the Local
Authorities and, in cases such as corporate manslaughter, the Crown Prosecution
Service. Thus, from the legal perspective, it appears to offer more of a stick
than a carrot approach.

Although it talks in terms of strategy, the fundamental legal concepts in
terms of what the courts expect of health and safety are unchanged. The
published document sets out various topics, which can be analysed into the
relevant application of the law.

Focusing resources on poor performance to get best results

In employment law, this means that if people are underperforming – and in
this context, we are talking about people whose activities pose a risk to
themselves and others – they are at risk of losing their jobs.

The Employment Rights Act 1996 (ERA) provides that capability, or lack
thereof, is a potentially fair reason for dismissal. Unless the act or omission
poses an irredeemable risk to the health and safety of fellow workers, a
dismissal for poor performance is likely to be unfair. However, this is unless
the employer takes steps to warn the worker about the risks of the poor
performance and gives him/her a chance to improve. It is not unreasonable for
the employer to offer training to someone whose work is not up to scratch, but
the worker is expected to show that they have benefited from it.

Promoting workers’ involvement and providing information

For more than 30 years, HASWA has imposed a duty on employers to provide
their employees with information necessary to ensure, so far as is reasonably
practicable, their health and safety at work. This must be reflected in written
policies, which need to be revised at intervals to keep them up to date.

Since 1977, under the Safety Representatives and Safety Committees
Regulations, union-appointed safety representatives have had powers to obtain
information from the employer about health and safety measures, giving them the
opportunity to have input into measures that are required to reduce or, in the
modern idiom, ‘contain’ risk.

More recently, the Health and Safety (Consultation with Employees)
Regulations were enacted. Since 1996, they have given protection to employees
who are not union members, entitling them to elect their own health and safety
representatives and to consult through them with their employers about safety
issues. Thus, legislation provides for employee involvement in determining
health and safety issues.

Above all, employees are protected from suffering detriment, including
dismissal, if they elect to leave the workplace under situations of risk.

Clear and present danger

From time to time, employees perceive actual or imminent situations of
danger in the workplace. ERA provides that an employee may not suffer detriment
in their employment if they take or propose to take steps to protect themselves
or other persons from that risk. ‘Other persons’ includes members of the
public, as was established in Masik v City Restaurants (UK) Ltd (1999), the
case in which a chef was unfairly dismissed for refusing to cook chicken that
he thought was not fit for human consumption.

His refusal was deemed to be an action protecting members of the public from
risk to health and safety and he was therefore protected from the unfair
dismissal, which in fact happened. He did not get his job back, but he was
awarded the appropriate compensation.

The whistleblowing provisions of ERA prevent dismissal where persons have
taken reasonable steps to ensure health and safety issues are properly raised.

The standard that the tribunals require for the employee’s actions is not
that of certainty that there is a risk, but that the action has been taken in
good faith. Thus, since the case of Shillito v Van Leer (UK) Ltd (1997), the
courts have taken it as good law that, provided the health and safety
representative acts in good faith, there is no duty for them to act reasonably.
As it happens, the Employment Appeal Tribunal (EAT) held that even though the
principle applied, in this case, Shillito had not acted in good faith but had
pursued a personal agenda unrelated to health and safety.

Shillito was employed as a fork-lift truck driver and was the
union-appointed health and safety representative for the area of the factory
called Line 8. He was also a shop steward.

One day, after someone noticed a chemical odour in an area called Line 6,
which was not within his appointed area, Shillito interfered in the company’s
safety procedures, which were well underway and, outside his remit as a health
and safety representative in his specified area, demanded that employees who
had noticed the smell be seen by the company doctor or go to hospital.

Shillito also demanded a note from the employers if they refused to comply
with these procedures. In fact, the employees were sent to hospital as part of
the company’s procedures, where they were examined. Shillito then went on to
interfer with the HSE investigations.

The employer thought that Shillito had exceeded the remit of his duties in
interfering in the way that he did, given that they had a detailed health and
safety policy, which was operating correctly under the prevailing
circumstances. He was subjected to disciplinary proceedings, which resulted in
a short period of paid suspension and a written warning, which stayed on his
file for six months. He also lost some overtime.

Shillito then went to the employment tribunal, complaining that the
disciplinary procedure caused him to suffer a detriment from which he should
have been protected by law.

The tribunal found, and were upheld by the EAT, that he had acted outside
his duties as a health and safety representative by interfering in a situation
in which he had no authority, and had confused his duties with those of his
role of shop steward. Shillito had tried to embarrass his employer over health
and safety matters by the way in which he dealt with the health and safety
inspector when, in fact, his employer had acted perfectly properly.

Shillito was not disciplined for carrying out a health and safety function,
but for his unreasonable and aggressive behaviour and, above all, because he
had acted in the bad faith, which in fact excluded him from the protection of
the ERA health and safety provisions.

Risk assessment

The new initiative appears to indicate a greater reliance on punishing wrong-doers.
A more effective route to enhancing health and safety procedures could be the
insufficiently used procedures for prosecuting employers for failing to carry
out risk assessments under MHSWR. The lack of resources within the HSE and
local authorities is usually blamed for failure to enforce this aspect of the
law. How unfortunate it is that larger breaches of HASWA, resulting in loss of
life or limb, could perhaps have been avoided had the risk been identified

Those involved with OH will be aware that the courts are not only interested
in what an employer knew of a particular risk, but what he ought to have known.
The case of Stokes v GKN (1968) confirms this legal principle.

The company physician did not tell employees that they were at risk of
scrotal cancer by wearing overalls that were steeped in mineral oils. Nor did
he tell the employer.

The court held that the company ought to have known of the risk even though
the doctor had withheld the information. Although this case was heard prior to
the enactment of HASWA, even then the courts were concerned with the employer’s
liability for maintaining a safe place and safe system of work.

A curious feature of the law is that, had the employees known of the risk
and continued to wear the overalls or, in any other situation, carried out a
comparably dangerous activity, any damages awarded would have been reduced by
reason of contributory negligence.

The future

Any initiative that increases the levels of health and safety in the
workplace will also be a step towards reducing that bane of the 21st century –

A safe workplace is just that if care is taken for the physical and
psychological well-being of the staff. Employers who do not attempt to
ascertain the fact or degree of risk are endangering the health of their staff
just as much as GKN did in the 1950s and 1960s.

All the government initiative does is to remind us that injury to health is
reasonably foreseeable if the health and safety ship is steered safely.
Navigation lessons are therefore to be recommended, provided that the course is
set for better conditions.

n Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head
of training and education for Advisory, Consulting & Training (ACT)
Associates & Virtual Personnel. Joan Lewis is the senior consultant and
director of ACT Associates and Virtual Personnel, employment law and advisory
service consultancies, licensed by the General Council of the Bar under
BarDirect. Tel: 020 8943 0393


1. The HSE strategy,

Case studies

BOXTEXT: Circumstances of danger

Circumstances of danger are not confined to dangerous machinery
or processes within the workplace. In Harvest Press Ltd v McCaffery (1999), it
was held that dangers can arise from the misbehaviour of fellow employees, a
matter over which employers ought to have control.  But in ST v North Yorkshire City Council (1999), the Court of
Appeal held that the local authority was not liable for sexual assaults
allegedly carried out by a deputy headmaster because these were not an improper
method of carrying out authorised acts. Rather, they were independent acts
carried out outside the scope of his employment duties.

BOXHEAD: Case studies

BOXTEXT: One bad mistake

A mistake which reveals gross incompetence or a fundamental
incapacity to do the relevant work may lead to summary dismissal. The landmark
case is Alidair Ltd v Taylor (1978), where the pilot forgot to put down the
under-carriage of his plane when landing. That was fundamental incompetence
warrant-ing summary dismissal. But in British Midland Airways Ltd v Gilmore
(1981) the pilot, under similar circumstances, was only told of the charges against
him at the disciplinary hearing and had no idea that he was at risk of
dismissal, unlike Taylor, who was kept fully informed. The court said that,
even though death to passengers could result from incompetence, the employer
could not dispense with the standard disciplinary procedures.


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