The Health and Safety at Work etc Act 1974 is the basis for British health and safety law. The Act sets out general duties which employers have towards employees and others, and employees have to themselves and others.
The principle of 'so far as is reasonably practicable' qualifies these duties. This means that the degree of risk in a particular workplace or work activity needs to be balanced against the:
- cost and
- physical difficulty
of taking measures, to avoid or reduce the risk.
What the law requires is what good management and common sense should lead employers to do anyway - to look at what the risks are and then take sensible control measures to tackle them.
The Management of Health and Safety at Work Regulations 1999 make more explicit what employers are required to do under the Health and Safety at Work etc Act 1974. Like the Act, they apply to all work activities. The main requirements are to:
- carry out a risk assessment
- make arrangements for implementing the health and safety measures identified as necessary by the risk assessment
- decide on competent people to implement the arrangements
- set up emergency procedures
- provide information and training to employees
- co-operate with other employers sharing the same workplace
Risk assessment forms the basis for most recent health and safety law.
There is a range of advice and assistance available to employers to help them comply with their duty. Most are available, free of charge, to download from the Health and Safety Executive's website.
It can be specific to the health and safety challenges of a whole sector or of a particular process in a number of sectors. The main purposes of guidance are to interpret the law, to help people comply with the law and to give technical advice. Following ‘guidance’ is not compulsory and employers are free to take other action. However, following guidance will normally be enough to comply with the law.
Approved codes of practice (ACoPs)
These have a special status above that of guidance. They offer practical examples of good practice and give advice on how to comply with the law. They have a special legal status. If employers are prosecuted for a breach of health and safety law, and it is proved that they have not followed the relevant provisions of the ACoP, a court can find them at fault unless they can show that they have complied with the law in some other way.
Regulations are law, approved by Parliament. Some risks are so great, or the proper control measures so costly, that it would not be appropriate to give employers discretion in deciding what to do about them. Regulations identify these risks and set out specific action that must be taken.
Health and safety law is often concerned with the relationship between employers and employees, essentially arising out of the 'contract of employment' agreed between them. There is no simple test for establishing whether a person is working under a contract of employment or not. In general terms however, the existence of a contract of employment should be gauged by reference to several criteria:
- whether a person for whom the work is being done controls the way in which the work is done
- whether a worker is, in essence, working as part of the other person's business, integrated into the organisation of the business
- whether, there are signs that the worker is trading in his/her own right (for instance, as a self-employed person) for example, whether s/he takes a degree of financial risk, is insured, provides his/her own tools/equipment or provides his/her own assistants.
Safety duties and liabilities
There exists the possibility of both criminal and civil liability.
Criminal liability arises from a breach of a statutory duty. Statutory duties are found in Acts of Parliament such as the Health and Safety at Work etc. Act 1974 and Regulations made under it. The proof of evidence required is ‘beyond reasonable doubt’.
Civil liability arises from the duty of care required by common law that a person takes 'reasonable care' if he is in a situation where, if he were to fail to take such care, it can be foreseen that somebody else might suffer injury or loss. Negligence can arise out of a positive act or an omission or failure to act. Cases are decided on the ‘balance of probability’.
Criminal or civil cases can expose a business to significant financial loss directly or through damage to reputation. This may threaten its survival.