Law for Managers in the UK - Essay Example

? Law for Managers Number Department Introduction The Health Safety at Work Act 1974 is an Act of the United Kingdom Parliament which defines or describes the fundamental authority and structure for the regulation, enforcement and encouragement of workplace safety, health and welfare. The Act plays a sacrosanct role in entrenching and maintaining fairness within the UK’s corporate and industrial life by defining the duties due to employers, contractors, employees, suppliers, custodians of work stations and premises and the general public. The Act operates by enforcing a broad range of regulations by public or government ministries through the use of statutory instruments which since 1974 have given rise to specific provisions for different industries, risks and disciplines. It is against this backdrop that avenues for public supervision were enforced such as the Health and Safety Executive and Health and Safety Commission were set up. To ensure that the provisions of the Act are binding, the state sanctions the use of instruments of coercion such as the imposition of criminal sanctions, fines and prison sentences which can go up to 2 years. Since this Act of UK Parliament is normally abbreviated as HASAWA, HASWA or HSWA 1974, it will be important to sustain the use of HSWA 1974 throughout the discussion, to steer clear of verbiage (Foster, 2010, 275). The development of the law, taking into account the lack of individual liability in other related legislation Dhir (2012, 100) contends that the main factor that triggered the creation and passing of HSWA 1974 is the need to protect employees and members of the public from corporate neglect and greed. Particularly, before the ratification of HSWA 1974, work stations and organisations sidestepped the need to protect employees and members of the public and the need to safeguard their safety. Because of this, employers paid little regard to safety relating to work activities, the use of dangerous substances, unlawful acquisitions and the need to control certain dangerous emissions into the atmosphere. Kotch (2012, 40) divulges that the failure to conform to the dictates of the medical service advisory and the provisions of the Building Act of 1959 also anteceded and triggered the need to entrench employee and public safety, through the creation of the HSWA 1974 (Miller and Crain, 2011, 150). At the same time, the failure of previous bills to ensure total safety also necessitated the need to have more robust and more comprehensive legislation. Particularly, there has been a successful coordination of efforts to produce the Employed Persons Health and Safety Bill in 1970. Nevertheless, the bill’s failure to address salient issues of workplace safety became more apparent over time. This failure was mainly seen in the Bill chiefly aiming at curtailing the number of deaths and injuries in British factories. For instance, the second provision of this Bill as is enshrined in the Clause 2 (1) (a) places sanctions on the formation of safety representatives and partly, management representatives in factories having more than 100 employees (Kobrin, 2009, 350). Nevertheless, a critical look at this clause leaves one with the knowledge that the representatives could not implement safety measures (Van-Dam, 2011, 231). Secondly, the failure was catapulted by the absence of cooperation between the totality of the workforce and the management. The discord between the two parties greatly affects the appointment of the safety representatives. The same also means that in the event that the safety representatives have been appointed mainly because of the management’s sleight of hand, then it is likely that the safety representatives may cover up for the organisation’s failure to put effective safety measures in place. It is against this backdrop that the National Institute of Industrial Psychology showed cases of consistent failures among companies and work stations to apply well known safety measures on the floor (Muchlinski, 2012, 160). It is because of the triggering and antecedent reasons above that the need to craft, pass and implement HSWA 1974 became inevitable. According to Byrne (2011, 500), Section 37 of HSWA 1974 continues to be pivotal in determining secondary liability. Herein, the most sacrosanct doctrine that HSWA 1974 rests upon is drawn from the case law Salomon v. Salomon and its antecedent, MacLaine Watson & Co Ltd. v. Department of Trade Industry. This is because it is at this juncture that a corporation should be treated as a separate legal person. The import of this is that a corporate entity could sue - and be sued as well (Coyle, 2012, 1980). It is clear that there are circumstances under which the section becomes operative. This is especially the case, when section 37 of the HSWA 1974 is brought into consideration. The same circumstances are also key in providing effective mechanisms for imposing secondary liability. One, according to section 37, comes into play in the event that a health and/ or safety offence has been committed through connivance or consent of any manager, director or any other similar officer in the organisation, in which case the person (the director, the manager or the officer in the organisation) and the organisation are liable for prosecution. This section makes it bare that the same is also the case when the offense is attributable to any of these aforementioned officers and the organisation (Kamatali, 2012, 440). In light of the above, Section 37 also makes it plain that the directors, managers or senior or even proprietors of the organisation in which an accident or injury occurs cannot escape culpability or secondary liability of the charge of neglect by arranging the entity’s management in a way that leaves the rank and file ignorant of circumstances that trigger their responsibility in addressing safety and health contraventions. This means that Section 37 of the HSWA 1974 leaves no room for ignorance as a form of defense (Helms, Oliver and Webb, 2012, 1140). Again Section 37 spells out the circumstances under which secondary liability may be determined. Particularly, Section 37 just like the Company Disqualification Act Section 2 (1) gives the court the power to disqualify an individual, a corporate entity, or any other organisation that has been convicted of an offence, as long as their action or inaction is in line with the management of the organisation. The offences include health and safety offences. The power to determine secondary liability of the organisation or the individual is left at the court’s discretion, so that such cases do not factor further investigation or the adducing of evidence in the court (Karnani, 2011, 111). Another way in which section 37 becomes operative and enables the determination of secondary liability is by spelling out the circumstances in which an individual director becomes liable for other relatable offences. Chief among these circumstances is the common law offence of gross negligence manslaughter. In this case, as is specified by common law, gross negligence manslaughter becomes applicable when an individual officer of a company, through his negligent behavior, causes the death of an employee or any other person. The gravity of this provision is that it makes the offence of gross negligence manslaughter punishable by a sentence not higher than life imprisonment. Thus, it is clear that this section factors greatly corporate manslaughter. In light of the foregoing, an offence is considered as corporate manslaughter in the event that an organisation’s failure or a failure of the organisation’s senior management becomes the substantial element in the gross breach of the duty of care that is owed to the organisation’s members of staff or members of the public. Secondly, the offence is deemed as corporate manslaughter in the event that the aforementioned failure leads to death. Herein, the maximum penalty is the imposition of an unlimited fine. Conversely, the court can publicise the order demanding the organisation to publish the details of the court convictions and fines, alongside the penalty (Clemons, 2010, 55). Nonetheless, it is important to remember that when determining the liability of an organisation, the jury must establish and examine any possible breaches of safety and health legislation and study all the available health and safety guidelines. The guideline will help the jury determine the circumstances that surround a particular case. In another wavelength, Section 37 becomes operative and acts as the mechanism for imposing secondary liability by spelling out the legal duties and responsibilities of employers. Thus, the act of these employers amounting to a dereliction on these duties becomes the basis for determining the culpability of the organization - or the organisation’s secondary liability. For instance, among the health and safety responsibilities it is spelt out that employers must: furnish a written safety and health policy upon employing five or more members of the staff; assess the risks involved to the staff, the clients, partners and any section of the public that may be affected by the organisation’s activities; make sure that the staff, clients and partners have access to sound healthy and safety advice; make arrangements for effective planning, control, organisation, reviewing and controlling of protective and preventive measures; facilitate consultations with members of the staff about work-related risks and their current protective and preventive measures. It is important to note that the requirements above are not merely propositions, but law, and are therefore binding. So binding are they that failure to comply with them heralds grave consequences on both individuals and the organisation itself. On the side of the organisation, non-compliance may attract imprisonment, imposition of heavy fines or disqualification. Another way in which Section 37 spells out the circumstances under which secondary liability may be determined is by modifying the offences of the corporate bodies. One, as previously mentioned, there is the proving of the offence as having stemmed from neglect on the part of the manager, director, the secretary or the organisation itself. Two, Section 37 brings into play the aspect of secondary liability by stating that in the instance that the affairs of a corporate entity are being run by its members, then the anteceding subsection will be applicable in relation to defaults and acts committed by the member (of the corporate entity ) in line with his duties of management. In a nutshell, this means that any member of the organisation whose act or omission leads to another person’s injury will be treated as the corporate entity’s manager, director, secretary or the entity itself (Blodgett, 2011, 40). It is also important to note that Section 37 is divided into 4 parts, in order to enforce secondary liability well. The first part touches on the general duties of the Health and Safety Commission and the Health and Safety Executive. The second part specifies terms that are enshrined in the Employment Medical Advisory Service (EMAS), whereas the third part specifies Building Regulations. The fourth part tackles the various amendments that have been made in all HSWA 1974 provisions and other closely related issues. The point immediately above shows that corporate and occupational safety laws are very dynamic and therefore maintain a multipronged mien. For instance, the aforementioned first part of Section 37 shows clearly that HSWA 1974 inextricably depends on the duties discharged by the Health and Safety Commission (HSC) and the Health and Safety Executive (HSE). This is the case since HSWA 1974 is primarily a legal injunction, yet it has to borrow values and efforts from the healthcare sector. Thus, depending on the input of HSC and HSE remains imperative since HSC and HSE are healthcare departments, which know conditions suitable for a healthy working environment. At the same time, the second part of the HSWA 1974 has to factor support from EMAS, since EMAS factors aspects of human resources management and ethics and health so as to have fair HRM practices. By extension, this means that HSWA 1974 cannot work effectively without factoring in the nature of labour laws in the UK. The third part of Section 37 of HSWA 1974 also has to borrow in heavily from laws that pertain to Building Regulations. This may compel any corporate entity, its managers, directors and proprietors to factor the services of architects working under the aegis of Building Regulations - before specific premises are considered safe for transactions and work. The nexus between Building Regulations and the law is herein maintained, since the failure to meet all the requirements of Building Regulations in the UK will translate to inability to secure the license to operate within specific premises. Conclusion and Reflections on Major Areas of Debate It is a fact that the observation of the HSWA 1974 heightens liability for senior officers, so that many have sent proposals to the effect that the Work and Pensions Select Committee (WPSC) excises the provisions of HSWA 1974 from its operations. However, it is important that the affairs of HSWA 1974 continue to be enshrined in WPSC so that compensation for the injured party can remain simpler. Likewise, it is only by merging the affairs of WPSC and HSWA 1974 that the government can gather accurate and comprehensive information on trends of observance of the law on corporate or occupational safety. The Third Special Report of July 2nd, 2008 exemplifies this proposal. This report did not only table the role of HSC and HSE in maintaining workplace health and safety, but also proceeded to divulge details on the government’s response to the 2006-07 Committee Third Report of Session. References Blodgett, M. 2011. “Substantive Ethics: Integrating Law and Ethics in Corporate Ethics Programs.” Journal of Business Ethics, 99 (2): 39-48. Byrne, E. 2011. “Business Ethics Should Study Illicit Businesses: To Advance Respect for Human Rights.” Journal of Business Ethics, 103 (4): 497-509. Coyle, J. F. 2012. “Business Courts and Interstate Competition.” William & Mary Law Review, 53 (6): 1915-1983. 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S. 2012. “Corporate Social Responsibility and the Legal Regulation in Nigeria.” Economic Insights - Trends & Challenges, 64 (1), 1-8. Muchlinski, P. 2012. “Implementing the New UN Corporate Human Rights Framework: Implications for Corporate Law, Governance and Regulation.” Business Ethics Quarterly, 22 (1): 145-177. Van-Dam, C. 2011. “Tort Law and Human Rights: Brothers in Arms on the Role of Tort Law in the Area of Business and Human Rights.” Journal of European Tort Law, 2 (3): 221-254. Read More