Health and Safety at Work Act 1974 - Essay Example

? The Health and Safety at Work Act 1974 Introduction The issues of legislation in the sphere of employment are of crucial importance nowadays. It cannot be denied that numerous changes have been implemented and the modern regulations in the sphere of labor legislation require further advancement. Anyway, further attention is paid to the Health and Safety at Work Act 1974. This act imposes criminal law duties upon employers in case of violation of health and safety conditions of the employees. There are many examples illustrating flaws of this Act. The concept of “foreseenability” in many cases is correlated with the issue of a reasonable practicability. Anyway, the employer should provide employees with a certain degree of safety, but risk assessment is placed totally on employees only. It is relevant to consider any type of possible risks. Every employer can make a decision and he can also ignore safety issues. In any case, every employer should be assured that he provided his employees with an efficient level of safety and guaranteed their risks avoidance. On the example of the available cases, the implications of the Health and Safety at Work Act 1974 are considered further on. Moreover, current literature sources are provided for further considerations about flexibility and challenge of the Act. Legal Authorities (Cases) Thus, for example, when a child was injured and took a used hypodermic syringe, the doctor was accused of failing to ensure health and safety issues of the person. A child took a syringe from a shelf, which was further replaced by another higher shelf. In the result of this accident: “The doctor was fined ?5,000 under Section 3(2) of the Health and Safety at Work Act 1974 for failing to ensure the health and safety of a person not in her employment and was also ordered to pay the full prosecution costs of ?981.68” (Everley,1999).   Moreover, a personal prosecution of Directors and Managing Directors can also occur under conditions of the Health and Safety at Work Act 1974. They are subjected to the issues under Section 7 of the HSWA of 1974. There are some evident examples, when directors and managers were prosecuted: a North Yorkshire company and its Managing Director had to pay ?70,000 in fines, when a man was left burning. An employee could not transport 935 kilograms of LPG and it was very soon ignited by a nearby gas leakage. Consequently, the Managing Director of the company did not follow HSE guidance and failed to follow the minimum distance to be maintained between vehicles and fuel tanks containing LPG (HSE, 2010). This is a resonance case and in many similar cases the responsibility is applied for the employers. Very often a personal responsibility of employees is omitted. Another case, when the Managing Director and managers of the company were prosecuted for offences, which related to an outbreak of Legionnaire’s disease. This bacterium was transferred from one employee to another and it was very difficult for the managers of the company to stop the expansion of this disease. The towers were not properly cleaned and in the result of this neglectful attitude the expansion of the disease were motivated. This case illustrated that: “the HSE will not only prosecute companies but also Managing Directors if they are found to be negligent” (HSE, 2010). Moreover, it is appropriate to appeal for the personal liability issues in terms of this Act. Thus, personal liability for offences under s 37(1) of the Health and Safety at Work Act 1974 was issued at almost the same date of the corporate manslaughter Bill received the Royal Assent. It is possible to correlate these two legal regulation Acts. Moreover, a special attention should be paid to ss 7 and 36 of the HSWA 1974. Section 7 is focused on the employees’ responsibility of their safety. In other words, every employee should be responsible for his own actions at work, because the HSWA 1974 is known as “the primary focus for all health and safety legislation in the UK” (Barnard 1998, p. 1). Punishment of employers, managers or directors is often ineffective in preventing health hazard at work. Sections 36 and 37 outline secondary liability and underline that a primary liability depends on a person directly. Moreover, s 33(4) outlines basic conditions for individual’s liability. For example, a case of license absence, violation of license terms, dealing with explosives or misusing a special information etc. Therefore, a personal injury should be correlated with these conditions for sure (Howes 2009, p. 306). Of course, with a course of time the issues covered by the HSWA 1974 have been extended. Firstly, the roots of this act should be found in the Robens Committee 1972, where the main principles of employers-employees relations are covered. The main emphasis was made on the protection of rights of employees and preventing risk of health injures. Nevertheless, the HSWA (1974) has not remained a stable document; it is constantly being changed and is considered in dynamics nowadays. This document ensures safety of the UK and the levels of injures at work in this country are lower than all across the Europe. In case an employer violates general duties under section 33 of the HSWA 1974, the employer is always subjected to criminal responsibility. There is a famous case R vs Davies (2003), when appellants discussed the dominance of the Court and appealed for Article 6 of the European Convention of Human Rights. Under conditions of Section 2 of HSWA 1974 it is argued that “the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees” (Tolleys 2008, p. 54). This claim can be strictly criticized and interpreted from many different perspectives. Taylor (2009) claims that an employer cannot be sure if his actions are in compliance with law or not. Sometimes it is very difficult for employers to make this type of judgment. It is often argued that the expression “reasonably practicable” is not a very apt term in comparison with “physically possible”. It underlines that computation must be realized by the owner. The scale of risk and the scale of sacrifice are in mutual interaction. Any type of injury or health hazard at work can be considered from the perspective of a great disproportion. In accordance with Section 3 every employer and every self-employed person should behave in such a way that “persons not in his employments who may be affected thereby are not thereby exposed to risks to their health and safety” (HSE, 2010). A self-employed person is responsible to the same extent for his own safety. Employee’s actions can affect further possible damages and hazards. There are many similar issues covered in the Act, such as sections 2 and section 3. When the case of R v Gateway Foodmarkets LTD (1997) is discussed, it is evident that the liability is imposed on the employer in case he did not ensure health, safety and welfare issues. It is possible to interpret the basic claims and issues of health and safety aspects of employment with regards to the following facts: efficiency of a strict liability, consideration of risk as “subject only to the defense of’ reasonable practicability” (Munkman 2009). This issue was considered in the case R v HTM LTD (2006), where the issues of potential and future risks are considered. Consequently, two employees of the company followed instructions moving a mobile telescopic lightning tower. In the result of their nonobservance of instructions they contacted with power cables above and were fatally injured. On the one hand, employers could not foresee this type of accident and responsibility is imposed on the employees only. A more recent case R v Chargot LTD (2008) makes an emphasis on the Section 2 of the HSWA 1974. In this case an employee died because “the dumper truck he was driving fell onto its side and buried him alive in the topsoil it was carrying”. No witnesses of the accident occurred and there was no exact reason for the accident. In this case employer was accused on the accident again with respect to the sections 2, 3 of the Act. It has been argued many times that sections 2, 3 are too general. Moreover, in case an individual is exposed to risk of injury, the employer did not do much to achieve the stipulated result. The section 7 of the Act is breached in this case, because it states that if an individual did not take a special care, another individual can be insured for sure. There was another similar case in 1994 R v Associated Octel Co LTD, where the section 3(1) of the HSWA 1974 was breached. Very often such issues were interpreted in the following way: “If there is a risk of injury to the health and safety of the persons not employed by the employer, whether to the contractors men or members to the public, and, a fortiori, if there is actual injury as a result of the conduct of that operation there is a prima facie liability, subject to the defense of reasonable practicability”. It is relevant to differ between real and potential risk occurrence. In the case R v Chargott (2008) violation of issues under sections 2, 3 occurred. That is why protection of employees under these sections should be always guaranteed by the employers. These two sections are the most provoking, challenging and are very often discussed in the current special judicial literature. The concept of foreseenability should be correlated with the concept of risk. Another argumentative and challenging case is R v Porter (2008), where three years old boy fell from the steps in the school playground. This boy died and the concept of a real or fanciful risk occurred. The prosecution should be initiated against a real risk and not a fanciful one. This incident was classified as a daily event and there have never been such cases of incident at school. What kind of penalties is invented for such kind of breaches? Actually, until 1974 these punishments were only financial ones. This responsibility was intensified by introduction of the Corporate Manslaughter and Homicide Act 2007. Thus, failure of section 37 of the Act fulfillment was positioned as the violation, which can be subjected to the Corporate Manslaughter and Homicide Act 2007. Another extension is the Health and Safety (Offences) Act (HS(O)A ) 2009, which concerns a personal liability of the employers. This Act underlines that individuals can be prosecuted and subjected to unlimited fines in the crown court and even imprisonment is possible (Brehony and Daniels, 2009). The main attention of this Act is focused employers, who do not take health and safety management measures and subject their employees to risk. Consequently, the parliamentary committee claimed that there was an evident decrease in prosecutions between “1720 in 2003/2004 to 1028 in 2007/2008 which represent a 40% reduction” (Tomkins, 2010). Conclusion Therefore, it is evident that the HSWA 1974 concerns employers only. A lack of attention is paid for different circumstances and personal responsibilities of the employees. It should be noted that from the numerous cases considered above, it is obvious that employees experienced injuries in many cases because of their inability to regulate their behavior with respect to external conditions. Very often the reason for the accident was remained unknown. Nevertheless, a special attention paid for the Act and different options of its interpretation highlights that several special principles should be applied for health and safety insurance under different conditions. It is better to understand what is going on in reality with respect to the 1974 Act and what kind of duty it implies. An employer can reduce potential risks and provide a detailed analysis of potential risks. Consequently, in accordance with the evaluation an employer cannot always assure his employees of staying safe. Employee’s negligence or ignorance can result in fatal accidents. Some risks, associated with our daily activities, which are referred to as “fanciful” or “hypothetical” can be often treated with negligence. In the result of this type of negligence a fatal accident may occur. There is a great challenge, which is remained open: it is the issue of hypothetical risk. The material issues of the risk underline that it is relevant to look at the essence of the cases from the personal perspective. In this case the judges could be more objective and give an unprejudiced decision, which is stricter and there is no option to interpret law in a flexible manner. Consequently, this type of law interpretation could result in the decrease of accidents occurrence at work. Moreover, the Act of 1974 provides the employers with the opportunity to take further steps, minimize risks or injury for their employees. It is obvious that employees should be educated and pay a special attention for health issues (Cotter and Bennett, 2009). Employees should pay attention to their general duties. It is relevant to mention the fact that the higher duty should be given to non-employees. This category of employees does not visit special trainings on safety of work or protection of health at work. On the one hand, there are many opponents of the HSWA 1974, because it is not flexible at all. On the other hand, there are very many proponents of this Act, who are much more focused on development of relevant regulations and providing a clear framework for the considerations about this Act. It should be noted that if to adhere to the principles of this Act, it will be possible to identify a reason for a certain risk. Moreover, it should be noted that to achieve and maintain the standards of health and possible risks reduction. Moreover, it is very important on possible fatal accidents and conditions, which are appropriate for non-fatal environment (Cotter and Bennett, 2009, pg.259). It should be mentioned that the regulations can be changed and improved to a certain extent. The modern culture is often referred to as a “compensation culture”. The employers are very often subjected to a personal injury claims. Therefore, health and safety reforms are implemented for providing a well-balanced reduction of injuries and fatal cases at work. It is evident that not only employers, but also employees should be responsible for injuries at work. A lack of a personal attention to the working conditions, a neglectful attitude to special safety trainings and regulations and many other factors lead to fatal accidents and injuries at work. Each particular case should be considered in detail with respect to external conditions. References Barnard, M, J. 1998. Health and Safety for Engineers. London: Thomas Telford publishing. Brehony, D., Daniels, I., 2009. Kill bill 2? Why directors are losing sleep over new health and safety legislation. New Law Journal, pp. 88-89. Cotter, B. Bennett, D., 2009.Munkman on Employer's Liability. 15th edition. London: Lexisnexis. Everley, M., 1999. Industrial Health and Safety Carrying the Can: Liability for Accidents. [online]. Available at: http://www.mike.everley.freeuk.com/articles/liable.html [Accessed October 21, 2012] Howes. V. 2009. Duties and Labilities under the Health and Safety at Work Act 1974: a Step Forward? Industrial law journal, 39 (3), pp. 306- 317. HSE, 2010. Health and safety executive. 2009/2010. Health and safety statistics. [online]. Available at: hse.gov.uk/statistics/index.htm [Accessed October 21, 2012] Taylor, S. Emir, A., 2009. Employment law: an introduction. 2nd edition. Oxford: University Press. Tolleys, 2008. Health and safety at work handbook. 20th edition. London: Lexixnexis. Tomkins. N., 2010. First principles in employers’ liability. Journal of personal injury law 3, pp. 131-138. Legal Authorities Jones v. Sherlock (2009) NSWSC 246 R v Associated Octel Co Ltd (1994) 4 ALL ER 1051 R v British Steel Plc (1995) IRLR 310, CA. R v Chargot Ltd (t/a Contract Services) (2008) UKHL 73, [2009] 2 All ER 645 R v Davies [2003] ICR 586, (2003) ALL ER (D) 71 R v Gateway Foodmarkets Ltd (1997) 3 ALL ER 78. IRLR 189 R v HTM Ltd (2006) EWCA Crim 1156, (2007) 2 All ER 665 R v Porter (2008) EWCA Crim 1271 Read More