EU Initiatives for Contribution to Health and Safety of Workers - Coursework Example

Health and Safety Law Contents Health and Safety Law Contents Health and Safety Law 2 Introduction 2 Court’s Interpretation of ‘So Far as is Reasonably Practicable’ 2 Definitions 2 Hazard and Risk 2 SFAIRP Definition 1 3 SFAIRP Definition 2 3 “Practicable” and “Reasonably Practicable” 3 Interpretation of What the Court Says about SFAIRP 4 New Ideas of the Court against Employers and Duty Holders 5 Court Cases 5 Good Practice 9 EU Contribution in Improving the Health, Safety and Welfare of Workers 9 Occupational Safety and Health Risk Management 10 EU Directives 11 Applications 11 Information and Data Standards 12 Conclusion 13 Bibliography and other reading 15 Health and Safety Law Introduction A study on health and safety law, and EU initiatives for contribution to health and safety of workers has been conducted. The study has been conducted in two parts. This first part is a study of health and safety law to analyse courts interpretation of so far as reasonable practicable within the UK. This includes review of the terms including hazard, risk, and reasonable practicable. Court cases that set the precedent for decisions on the matter were analyzed, and good practices were determined. The second part of the study is a review of initiatives in Europe for the setting up of health and safety policy and strategy. Contributions were made from the member states of the European Union. There was a focus on indicators of health and safety strategies including the extent and costs of occupational injuries and ill health, legislative arrangements, inspection, preventive services, and arrangements for participative management of health and safety and insurance systems. EU HSE directives and specific applications have been reviewed. Court’s Interpretation of ‘So Far as is Reasonably Practicable’ Definitions Hazard and Risk Hazard has been defined as something such as an object, property of a substance, or a phenomenon or an activity that can cause adverse effects. For example, breathing of asbestos can cause lung cancer. Risk has been defined as the likelihood that a hazard will actually cause adverse effects, and the effects can be measured. The interpretation is in two parts. Likelihoods are expressed as probabilities, frequencies or in a qualitative way. Effects are described in some measurable way (HSE, 2010). SFAIRP Definition 1 SFAIRP is defined as “so far as is reasonably practicable” or “reasonably practicable.” The HSE Act has led to legislation for duty holders to ensure so far as is reasonably practicable. It is a statutory obligation that has to be carried out in the light of current knowledge, if it is feasible, irrespective of cost or difficulty. The term requires a cost benefit analysis to be used while determining actions that have to be taken in response to identified risks or a comparison is to be carried out in similar circumstances. The preventive measures should be commensurate with the magnitude of risk (Institute of Engineering and Technology, 2009). SFAIRP Definition 2 SFAIRP is also defined as “it it can be done, it must be done “or “practicable.” It is a statutory liability in health and safety legislation. The legislation may be absolute or qualified by expressions for ensuring “practicability.” The courts make a determination as to whether duty holders have complied with their obligations. There are precedents that have been established by case law (Institute of Engineering and Technology, 2009). “Practicable” and “Reasonably Practicable” The terms essentially mean the same thing and the core of the concept of “reasonably practicable.” The concept involves weighting the risk against the efforts in terms of labour, time and money needed to control it. It is a description of the level to which we expect to see the workplace risks to be controlled. Interpretation of What the Court Says about SFAIRP SFAIRP is a key part of the general duties set in the Health and Safety at Work Act of 1974. It lies at the heart of the health and safety system, and forms the basis of health and safety regulations that have been developed and enforced. According to the policy developed by HSC, any proposed regulatory action such as regulations, guidance and campaigns should be based on this concept. As this concept is fundamental to the work of the whole organization, everyone regardless of role should know about it. Some specific reasons for the knowledge of the concept include policy makers and those engaged in program delivery; enforcers; and technical specialists. The Edwards v The National Coal Board (1949) established that a computation must be made about the quantum of risk and sacrifice in money, time or trouble in the measures to avoid the risk. If there is a gross disproportion between them, and the risk is insignificant when compared to the sacrifice and the duty-holder is discharged of the burden of proving that compliance was not reasonably practicable. The bias is on the side of health and safety. Gross disproportion is the need to err on the side of safety in the computation of health and safety costs and benefits (Institute of Engineering and Technology, 2009). Policy makers are those engaged in programme delivery should know about this concept while making proposals for HSE for the control of health and safety risks. The controls should reduce risks to employees. Enforcers should know about the concept as they would have to make decisions as to whether duty holders have reduced their risks to reasonably practicable levels and complied with the legal requirements. Technical specialists should know about the concept as they advise about control measures as to whether the control measures reduce risks, and identify standards’ that control risks to comply with the legal requirements (HSE, 2010). New Ideas of the Court against Employers and Duty Holders The terms allow the setting of goals for duty-holders instead of being simply prescriptive. A decision on whether a risk is SFARP is a challenging task as it requires duty-holders to exercise judgement. In most cases “good practice” has been established, and a discussion with stakeholders can allow a consensus on what is “reasonably practicable.” In the case of high hazards, complex or novel situations, it is necessary to build on good practice by the use of more formal decision making techniques including cost-benefit analysis (HSE, 2010). Other techniques include the use of extensive testing, or use of engineering methods such as simulation or modelling. Extensive training can improve health and safety conditions. The duty holder can include extensive training programs to ensure that the risk is SFAIRP. The bias is transparent and on the side of health and safety. Standards should be improved or maintained. Current good practice should be used as baseline with the assumption that appropriate balance between costs and risks has been struck when good practice was adopted. Some hazards are regulated through safety case regime requiring demonstration of safety case control measures introduced to conform to the principle (Institute of Engineering and Technology, 2009). Court Cases In court cases (see table below) when sacrifice involved for mitigating the risk in terms of money, time or trouble on comparison to the risk show gross disproportion – risk being insignificant when compared to sacrifice – the defendants would be discharged of the onus on them. The interpretation is that risk is weighed against the sacrifice required for further reduction of risk. The weight of the decision is in favour of health and safety as the duty-holder has the responsibility of implementing measures. The duty-holder must show that the benefits or risk reduction is grossly disproportionate to the sacrifice. However, it should be noted that the process is not about balancing costs and benefits but adoption of measures where they are ruled out because they are grossly disproportionate to the sacrifices. For example, spending £1M for the prevention of explosion that can kill 150 people is proportionate. In reality, decisions about the risk and controls for practicably reasonable controls are not obvious. Ongoing costs against one-off events, daily expense and supervision required; use of hearing protection devices, etc. are factors that come into play (HSE, 2010). Table 1. Court Cases on So Far As Is Reasonably Practicable Case R v Nelson Group Services (Maintenance) Ltd 1999 Facts Nelson Group Services was involved in the installation, servicing and maintenance of gas appliances. One of the employees had left the gas fittings in a condition exposing the occupants to health and safety risks. The company had properly trained the employees so that he could carry out his work safely and properly (Safetyphoto, 2007). The Charges The company was charged under s 3(1): “... to conduct his undertaking in such a way as to ensure so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety” (Safetyphoto, 2007). Lordship’s Opinion/Appeal The judge had directed the jury that if they found that the employee had left the fittings in a condition exposing the occupants to health or safety risks, the defence of ‘reasonable practicability’ was unavailable to the defendants, and the Crown Court convicted the company of failing to discharge its duty under. The company appealed (Safetyphoto, 2007). Court of Appeal Roch LJ, in the leading Court of Appeal judgment, said that the fact that the employee carrying out the work had done so negligently did not of itself preclude the employer from establishing that everything ‘reasonably practicable’ had been done in accordance with HSWA s 3(1) (Safetyphoto, 2007). Conclusion Although the circumstances where such a defence may be established are likely to be rare, the Court of Appeal in this case stated that an isolated act of negligence by an employee carrying out work on behalf of the company does not stop that employer from establishing a defence that it has done everything that is reasonably practicable (Safetyphoto, 2007). Case R v Chargot Limited (t/a Contracts Services) [2008] UKHL 73 (HL) Facts Shaun Riley died while working for Chargot Ltd at a farm where Ruttle Contracting Ltd was the principal contractor. The deceased had been asked to drive a dumper truck for removing spoil from an excavation to a tip 500 yards away. The truck tipped, during the third trip, on its side and he was buried by the load. The following day, he died in hospital (Barrett, 2008). The Charges The first defendant was charged under s 2(1) of the Act: “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.” The second defendant was charged under s 3(1) of the Act: “... to conduct his undertaking in such a way as to ensure so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.” There was no absolute liability on the employer, and the employer had to do what was reasonably practicable to ensure health and safety: ”... reasonably practicable to do more than was in fact done to satisfy the duty ..” (Barrett, 2008). Lordship’s Opinion/Appeal The central issue in the appeal was summarized as: “... it was for the prosecution to prove the acts and omissions by which it was alleged there had been a breach of duty. It was not enough for it simply to assert that a state of affairs existed which gave rise to risk to health or safety” (Barrett, 2008). The defendants appealed. Court of Appeal The Court of Appeal upheld Court at Preston and their convictions. Their Lordships had to determine how much evidence the prosecution had to provide before the burden of proof shifted to the defendants for showing that they had done what was reasonably practicable to prevent the accident. The issues were set out as: “... is it sufficient that the prosecution proves merely a risk of injury arising from a state of affairs at work, or, need it go on to identify and prove specific breach or breaches of duty?” (Barrett, 2008). Conclusion Their Lordships were unanimous in their decision that the appeals should be dismissed. Sufficient details had been given by the prosecution as it had stated that the risks were in the driving or use of dumper trucks. That there had been an accident, which showed that the risks were real, and not hypothetical (Barrett, 2008). A description of interpretation and application of SFAIRP has been described in the table below. Table 2. Interpretation and Application of AFAIRP Interpretation and Application of SFAIRP How does the court react to how duty holders are using the word SFAIRP? The burden of proof lies with the defendants, who have to prove that everything reasonably practicable was done to avoid the incident or accident. How the court says they should not use it as a defence? Duty holders cannot use it as defence by distancing themselves from employee actions (by training them or having well defined procedures). How the court says they should foresee all things? It is possible to foresee risks for activities by conducting a risk analysis. Good practice for activities that have already been defined should be adopted. Wherever not available, experts on the subject matter should be consulted. How the court says if they have foreseen they should prove themselves? Duty holders can demonstrate that they have foreseen risks by involving all stakeholders in discussions on policy and procedures, and having well documented meetings, and policies and procedures. Good Practice The standards for the control of risk that HSE has judged and recognized as satisfying the law, when applied to a particular relevant case, in an appropriate manner has been defined as good practice. In case something different is done, it must be possible to demonstrate that the measures adopted are at least as effective in controlling the risk. In case of complex situations, good practice should be followed as far as it can be, and consideration given to whether any more can be done to reduce the risk. First principles offer a good basis for the comparison of risk with the sacrifice involved in further reducing it. EU Contribution in Improving the Health, Safety and Welfare of Workers Health and safety underwent considerable change in the first half of 1990s under the influence of policies and instruments of the European Union. Economic trends and responses of business and Government served to create a set of common influences, and brought European countries together in terms of health and safety strategies. However, there were differences between countries with regard to infrastructure and health and safety outcomes. The concept of health and safety was based on the previous era, and did not lend itself easily to emerging concerns of a post-industrial society. This presented a major challenge in the development of strategies (Walters, 1996). Occupational Safety and Health Risk Management Recent years has seen the work environment undergo significant changes in terms of working time; years of employment; organization; types of contracts; and working conditions. The consequences of such changes include disruption of the human biological rhythms; increase in fatigue; and occupation stress. These factors have a serious impact on worker’s health and could increase occupational accidents. A challenge has been the conduction of effective occupational risk assessments and implementation of occupational health and safety measures. The fundamental criteria for the study of occupational health and safety, and relative preventive measures should be “the promotion and maintenance at the highest degree of the physical, mental and social well-being of workers” (Papadopoulos et al. 2009). Spain had the highest incidence of non fatal occupational accidents in the European Union, and third for fatal accidents. According to the European Convergence Program, occupational health and safety has improved over the last decade. This has been attributed to the concept of overall safety culture. Changes include industrial safety; hygiene; and psychosocial factors. However, despite the general improvement there is still opportunity for significant improvement (Sesé et al., 2002). Risk analysis is a process including risk assessment, risk management and risk communication. For example, the scientific panel on biological hazards has taken definite steps for the development of quantitative microbiological risk assessment through a consortium of European institutes (Hugas et al., 2007). EU Directives Categories of European Directives include the OSH framework; Workplaces, equipment, signs, and personal protective equipment; Exposure to chemical agents and chemical safety; Exposure to physical hazards; Exposure to biological agents; Provision on workload, ergonomical and psychosocial risks; and Sector specific and worker related provisions (European Agency for Safety and Health and Work, 2010). The aim of the occupational safety and health framework Directive was to introduce measures for encouraging improvements in the safety and health of workers in their occupational setting. The Directive applies to all sectors of activity including public and private. Exceptions were specific public service activities such as armed forces, police, or civil protection services. Several individual directives were adopted. Wherever, individual directives had more stringent or specific provisions, the special provisions of individual directives prevailed. General principles of prevention listed in the directive were avoiding risks; evaluation of risks; combating the risks at source; adapting the work to the individual; adapting to technical progress; replacing dangerous by non- or less dangerous; developing a coherent prevention policy; prioritizing collective protective measures; and giving appropriate instructions to workers. Obligations were laid down for employers and workers. For example, the European Framework Directive 89/391/EEC and 92/57/EEC addresses accident prevention, with requirements for temporary or mobile construction sites and focused on prevention through design. This legislation enforces specific duties on designers (Aires et al., 2010). Applications Occupational exposure limits are based on occupational medicine and predictive toxicological testing. Health-based occupational exposure limits are set by dividing the No-Observed –Adverse-Effect-Level by an overall uncertainty factor. A similar approach could be used for epigenetic carcinogens, or the genetic effect is secondary. The approach has also been suggested for compounds with weak genotoxic effect (Nielsen and Øvrebø, 2008). Beronius et al. (2009) investigated different regulatory frameworks in Europe for coping with risk assessment. Regulatory groups included industrial chemicals, environmental pollutants in food, and pharmaceuticals and plant protection products. The requirements for toxicity testing and availability of the scope for risk different for each of the regulatory frameworks were different, and there was little conformity in the risk assessment procedures. The main and basic requirement for industrial and consumer chemicals in the European Union is hazard classification and labelling. Specific legislation exists for drugs, food ingredients or cosmetics. Hazard classification involves hazard identification, and description of hazardous properties of chemicals. Refinements in classification criteria include assessment of toxic potency as feasible and the possibility of higher or lower concentration limits. Risk assessment will be more frequent with the implementation of REACH. The assessment will be performed in a targeted approach for selected number of chemicals, while classification and labelling will remain the primary approach for all chemicals (Gebel et al., 2009). Information and Data Standards Community statistical data is to be produced on the basis of uniform standards and harmonised methods. the common framework has been aimed at guaranteeing the systematic production and quality of data in these fields. This would facilitate the accessibility and compatibility of data provided by Member States. The Statistics would constitute a source of information, and would be used to monitor community and national policy. Member States would collect statistical data from surveys of the population of from administrative sources covering health status and determinants of health – physical and mental functioning, environmental and socio-professional factors; health care – availability of health care, utilisation, cost and financing; causes of death – especially characteristics of deceased and his/her region; accidents at work – especially the characteristics of injured person, the nature and circumstances of accident; and occupational diseases – work-related health problems and illnesses. The statistics would be transmitted by Member States to the Statistical Office of the European Communities (Eurostat) in electronic form and in accordance with the Comunity interchange standard selected by a common agreement. The accessibility, dissemination and documentation would be ensured by the European Commission. Regulation 322/97/EC addresses the production of Community statistics and guarantees the impartiality, reliability, objectivity and cost-effectiveness of statistical data. The nature of data is confidential, and personal data would be protected. Member States would take all necessary measures for ensuring the quality of data, and follow methods and guidelines. The quality and comparability of data would be assessed in accordance with the standards and based on criteria of relevance, accuracy, timeliness, punctuality, accessibility and coherence. The development of methodologies and data collection activities would be co-ordinated by the European Commission, along with international organisations operating in the field of health and safety within the workplace (Europa, 2010). Conclusion The Courts of Appeal in the Edwards v National Coal Board defined the concept of “reasonable practicability.” “Reasonably practicable” is narrower than “physically possible,” and a computation has to be made to determine the quantum of risk on one scale and sacrifice in terms of money, time or trouble for averting the risk. A decision on whether everything reasonably practicable has been done requires a careful balancing exercise. The burden of proof lies with the defendant, who has to prove that everything reasonably practicable was done to avoid the incident or accident. Putting together appropriate policies and providing training and monitoring to its staff, the employer can argue that it has done everything to ensure the health and safety of its staff. The courts have been strict on the issue, and have held that one of the responsibilities of employers is to protect the employees from themselves, and they could not avoid responsibility by pointing fingers at employees. Employees are personally liable for their actions, but individual liability does not absolve an employer of liability (Harwood, 2009). Accidents and work-related illnesses are costly in human as well as economic terms. The aim of the Community strategy on health and safety at work is a 25 percent reduction in total incidence rate of accidents at work by 2012 within the EU. Good health at work can be beneficial for public health, productivity and competitiveness of businesses. As social protection systems exact a high cost, it might be cost wise to provide workers with good systems. The previous strategy has been fruitful as workplace accidents have been relatively fewer. In order to achieve the current strategy, six objectives have been established. They are putting in place a modern and effective legislative framework; encouraging the development and implementation of national strategies; promoting changes in behaviour; confronting new and increasing risks; improving measurements of progress made; and promoting health and safety at the international level. Common legislation on effective and uniform implementation will guarantee equivalent levels of protection. Cooperation between labour inspectorates would be promoted. Member States would pay attention to prevention and health surveillance; rehabilitation and reintegration of workers; responses to social and demographic change; and coordination between policies on health and safety at work and policies on public health, regional development and social cohesion, public procurement, employment and restructuring. Promotions such as direct or indirect financial incentives such as reductions in social contributions or insurance premiums or increases in economic aid could induce behaviour change. Changes in behaviour are desirable at all levels from primary school through work. The scientific community would be responsible for anticipating, identification and responding to new workplace and safety risks. Depression is an important cause of incapacity for work. Mental health would have to be promoted at the workplace by stepping up initiatives for preventing violence and harassment in the workplace or dealing with stress. Statistics and information on national strategies would be collected and qualitative indicators would be developed for enhancing the knowledge and progress achieved in health and safety at work areas. The European Union would strive to raise labour standards around the world and strive to increase its cooperation with developing countries and international organisations such s ILO and WHO. This includes the implementation of global strategy on occupational safety and health by ILO (Europa, 2010) Bibliography and other reading Aires, D., Gámez, C. & Gibb, A. (2010). Prevention through design: The effect of European Directives on construction workplace accidents. Safety Science. 48(2). 248-258. Barrett, B. (2008). Whose Burden of Proof? R v Chargot Limited (t/a Contracts Services) • [2008] UKHL 73 (HL) Industrial Law Journal 2009 38(2). 215-221. Europa. (2010). Statistics on public health and health and safety at work. Available: http://europa.eu/legislation_summaries/employment_and_social_policy/health_hygiene_safety_at_work/em0013_en.htm. Last accessed 16 February 2010. European Agency for Safety and Health and Work. (2010). European Directives. Available: http://osha.europa.eu/en/legislation/index_html/directives. Last accessed 15 February 2010. Gebel, T., Lechtenberg-Auffarth, E. & Guhe, C. (2009). About hazard and risk assessment: Regulatory approaches in assessing safety in the European Union chemicals legislation. Reproductive Toxicology. 28 (2). 188-195. Harwood, J. (2009). Reasonable Practicability: a Return to Common Sense. Available: http://www.walkermorris.co.uk/content.aspx?id=453. Last accessed 14 February 2010. HSE. (2010). ALARP "at a glance". Available: http://www.hse.gov.uk/risk/theory/alarpglance.htm. Last accessed 14 February 2010. Hugas, M., Tsigarida, E., Robinson, T. & Calistri, P. (2007). Risk assessment of biological hazards in the European Union. International Journal of Food Microbiology. 120(1-2). 131-135. Institute of Engineering and Technology. (2009). Reasonably Practicability. Health & Safety Briefing No. 17. 1-2. Nielsen, G. & Øvrebø, S. (2008). Background, approaches and recent trends for setting health-based occupational exposure limits: A minireview. Regulatory Toxicology and Pharmacology. 51 (3). 253-269. Papadopoulos, G., Georgiadou, P., Papazoglou, C. & Michaliou, K. (2009). Occupational and public health and safety in a changing work environment: An integrated approach for risk assessment and prevention. Safety Science. Available online on sciencedirect.com. Safetyphoto. (2007). R v Nelson Group Services (Maintenance) Ltd. Available: http://www.safetyphoto.co.uk/subsite/case%20q%20r%20s%20t/r_v_nelson_group_services.htm. Last accessed 14 February 2010. Sesé, A., Palmer, A., Cajal, B., Montaño, J., Jiménez, R. & Llorens, N. (2002). Occupational safety and health in Spain. Journal of Safety Research. 33(4). 511-525. Walters, D. (1996). Health and safety strategies in Europe. Journal of Loss Prevention in the Process Industries. 9 (5). 297-308. Read More