Irish Provisions and Protecting the Health and Safety of Workers on Employers - Essay Example

Effect of Irish provisions for protecting the health and safety of workers on employers Insert Insert Introduction Employees have certain rights and freedoms in their workplaces. The health and safety of employees is a very crucial aspect of the workplace that employers need to understand. In Ireland, employees earn protection from various government legislation that protect their health and safety. The state of Ireland is promoting and maintaining of a favorable working environment for workers under the Irish Jurisdiction.1 Safety, health and Welfare at Work Act 2005, is a legislation that provides for the health and safety of employees. These acts apply for all employers, employees and the self-employed. This act set out rules, rights and obligations for both employees and employers. There are fines and penalties for violating most of statues set and the safety and health acts. Most of the current Irish provisions on the safety and health of employees put many responsibilities on the employers. Employers must ensure safety, health and welfare of all employees. Section 8 of the Act explains the duties employers have to ensure employee safety at the workplace. Employers are to maintain a safe workplace, prevent risks from injury, prevent improper conduct and behavior, provide instruction and training to employees, and provide protective clothing to employees. Health and safety legislation are burdensome for employers. Many Laws protecting employees derive most of their statutes from common law and statutory regulation. Common laws provide that it is the duty of employers to be responsible for the lives of their employees. The level of responsibility the law lays upon employers might be very difficult since safety, health and welfare laws are too demanding for employers. Regardless of any law such as Safety, Health and Welfare Act 2005, there is a common law that cares for employees. According to employment law employers should take of care of employees.2 The duty can be personal thus it is impossible to discharge such delegation to another person. This paper evaluates current Irish provisions on health and safety of employees. Specifically the paper explores whether health and safety regulations are onerous on employers. The Safety, Health and Welfare at Work Act, 2005 The safety, Health and Welfare at Work Act, 2005 lays the foundation for the development and implementation of regulations that protect employees and employers. The law elaborates the various obligations and responsibilities employers and employees have in the workplace in Ireland. In the Act, employers have an obligation to provide safety, welfare and health of their employees. Obligations and responsibilities of employers as provided in the Act also include laws regarding bullying and harassment in the workplace. It also includes information provision to employees about health and safety, supervision, training and instruction to employees. Not only do employees have obligations to their own employees but also to other self-employed people in their places of business. Despite the fact that employees also have an obligation regarding their own safety and health, most regulations put many obligations upon employers. Sections 8 to 17 of the Act highlight on the duties of both employers and employees. All these sections refer to what is “reasonably practicable” which the act defines in, section 2(6): (6) For the purposes of the relevant statutory provisions, “reasonably practicable”, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.3 In most of these regulations, employers decide what is “reasonable practicable”. However section 81 provides that the employer will be responsible to provide the proof: (81)In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.4 Safety Statements Employers have an obligation to prepare safety statements after assessing and identifying hazards in the workplace.5 According to section 20 of the Safety, Health and Welfare at Work Act, 2005 employers must provide safety statements that also set out protective and preventive measures the employers are taking to ensure safety of employees. Employers should develop policies and procedures to for employee safety while at the same time allow employees to have a safety representative in the workplace.6 Employers must make sure that the safety statement is available for inspection at the workplace. It is also the role of employers to avail safety statements to employees and ensure employees understand everything regarding safety.7 Employers who violate the regulation of this safety statement face punishable criminal offences. However, the law exempts employers of 3 or fewer employees particularly in industries with Code of Practice regarding health and safety. Bullying and Stress in the Workplace The health and Safety Authority 2007 launched the Code of Practice on workplace bullying in Ireland.8 The “Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying” defines bullying at the workplace as “Repeated inappropriate behavior, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work”9 The Code provides examples of workplace behaviors that are examples of bullying in the workplace. Examples of such behaviors include undermining behaviors, exclusion of other employees, physical and verbal abuse, aggression, excessive monitoring of work and humiliation. According to the Code, there are guidelines employees can use to develop bullying prevention policies for their organizations and businesses. There are also risk assessment procedures for developing such anti-bullying policies. There is increased importance of addressing workplace bullying by academics and the Irish Government.10 Health and safety regulations also provide employers with the law duty of care to prevent bullying and stress in the workplace. As the employer carries out assessment and identification of workplace problems, the resulting safety statement should also include a risk assessment regarding bullying in the workplace. Since bullying falls under the heading health and safety in the workplace, it is the obligation of employers to prevent employees from bullying and stress. In any case that an employer fails to protect employees from workplace bullying and stress, employees can launch successful claims for constructive dismissal and breach of contract. Employers must develop policies and approaches to ensure that the policies for protecting employees are reasonably practical to prevent bullying and stress in the workplace. In cases of bullying and stress employers must relieve employees of their duties and obtain advice from professional heath officers. There are guidelines that allow employers and HR or Legal advisors to carry out investigations of bullying in the workplace. Most of the guidelines follow natural justice and fair procedures. It is clear in the Code that bullying prevention policies must be part of a company’s safety statement. Employers must they develop policies that prevent bullying in the workplace since bullying is a potential problem in most workplaces.11 If a company does not have anti-bullying policies in the workplace, an employer would not be able to defend a claim of bullying. Employers must also conduct thorough investigations towards bullying incidences in their organizations and companies. Failure to which they will not be able to safeguard against claims of lack of investigation in bullying issues among their employees Non physical injuries in the workplace It is also the duty of employers to protect their employees from non-physical injuries in the workplace. However, lack of accepted definitions of stress as a non-physical injury poses a challenge to employees regarding implementation of these regulations. In most cases, claims for non-physical injuries tend to base their arguments on decisions in case. The test in the decision of the Maher v Jabil Global Services Limited case was later adopted by the Supreme Court in Berber v Dunnes Stores Ltd. Test included three tests for the employee to undertake regarding occupational bullying and stress.12 In order to succeed in such claims, the employee must pass the test. When an employer identifies that a particular employee has higher chances of becoming susceptible to stress, the employer must responsible for that particular employee. European labor laws European labor laws are legislation that relate to the rights of workers and employees among countries in the European Union and countries under the European convention on human rights. There are several directives in European labor laws that protect the health and safety of workers.13 Ireland is one of the European Union member states. Therefore, European labor laws also protect the health and safety of Irish employees. Health and safety of a worker at the workplace is one of the most advanced policies in the EU. Health and safety policies include physical issues, diseases and injuries, and other topic such as stress. According to the European labor laws an employer has a duty to ensure that there is health, safety and welfare of employees.14 The European labor laws regarding health and safety of employees are similar to most regulation that governs health and safety of workers in Ireland. However, in most of these provisions it is clear that laws overburden employers. Most of these regulations make employers very much responsible for the health and safety of workers. Though, the legislation also describe duties of employees regarding their own health, emphasis still remain on the fact that employers are responsible for the safety of the workers no matter what happens. European Directives Many directives of the European Union apply to workers in Ireland since it is a member state of the EU. The EU treaty provides legal acts that guide many members of the EU. The treaty is binding to its members forcing them to transform their national laws to be in line with EU provisions. Most of these directives enter into law and start making effect once they are in the EU journal. There are important EU directives that focus o health and safety of workers in EU member states. Most EU directives on safety of workers arise from the legal foundation in Article 153 of the Treaty on the Functioning of the European Union. Article 153 gives the EU authority to develop directives concerning health and safety of workers in the workplace. Most of these directives also apply to workers in Ireland. There are minimum requirements regarding health and safety of workers. Most EU directives provide minimum requirements for protection of workers. However, member states are free to make these directives stricter depending on the national laws and legislation. Legislations on health and safety of workers can also vary across EU member states. 15 The European Commission drafted a legislative proposal regarding the health and safety of workers. This proposal was the starting point for initiatives that are set to provide a political framework for European safety and health policy. There are individual directives in EU provisions that describe specific aspects of safety and health in the workplace. However, most of these directives focus on the role of employers in ensuring that there is safety and health of employees in the workplace. The individual directives also offer approaches for assessing risks and other safety measures in the workplace. Individual directives in the EU provisions provide minimum standards for protection of workers. The EU regulations protect employees from harassment and bullying at the workplace.16 Individual EU directives allow member states to maintain or develop higher standards for protection of employees. Health and safety is one of the areas the EU has much impact. This develops from a solid legal framework of many regulations that protect workers in workplace for member states of the EU.17 In addition to Article 153 of the EU directives, there are other Articles in the EU directives that affect workers in Ireland. For instance Article 114. The European Commission works with other agencies such as the European Agency for Health and Safety at Work and European Foundation for Improvement of Living and Working Conditions to spread information to workers regarding safety. The commissions also ensure that they provide guidance to workers and promote safe working environment for workers in Europe.18 Directive 98/391/EEC of the European commission provides measures and approaches to help employers improve safety and health at workplace. The directive seeks to improve various aspects of occupational health and safety for both public and private workers. According to the directive, workers have the right to make proposals relating to health and safety and also stop working whenever they sense danger in the workplace. The directive also aims at ensuring works return home in good health after working. Employers must ensure that they protect the health of employees to make sure they return home in good health.19 Failure to do so would result in penalties since they would have violated provisions stipulated in EU directives regarding safety and health of employees. It is important to understand that, despite the fact that most of the EU directives and laws apply to the EU, the laws may differ between different member states. Such difference results from variations in interpretation and implementation of the directives in the member states. In Ireland, The Safety, Health and Welfare at Work Act 2005 was transformational act to ensure the country complied with EU occupational and safety law. Particularly the Act is addressing Council Directives 89/391/EEC and 91/383/EEC. The two directives encourage employers to improve health and safety of their employees including those in temporary/ fixed terms of work. Irish law is protective towards its employees. Most regulations governing employment in Ireland protects employees and seeks to enhance employment relationships. Irish law assumes that the employer and the employee should have a contextual relationship at the workplace.20 Employment law in Ireland Most employment law in Ireland protects the health and safety of workers. Some of these legislation develop compensation systems for employees in the case of accidents and other injuries in the workplace. The compensation systems follow laws and legislation on health and safety in Europe.21 It is the responsibility of employers to ensure that their employees receive certain basic employment rights. Employment regulations govern employment rights in Ireland. Employees in Ireland have a right to raise their voices regarding health and safety in workplaces.22 Employment laws in Ireland resemble regulations that govern employees in Europe.23 Cost-benefit analysis of health and safety regulations In order to understand the burden health and safety regulations can impose on employers it is crucial to assess the costs against the benefits of implementing these regulations. There are many reports that evaluate the burden upon which health and safety regulations present upon companies and employers. Since it is the duty of employers to ensure implementation of health and safety provisions the high costs of implementing such laws may have negative effects on employers.24 The British Chambers of Commerce conducted a survey of 2000 businesses to evaluate the impact of health and safety regulations on employers and businesses. Fifty-three percent of the respondents reported that it was very burdensome to achieve health and safety regulations for their employees.25 Implementing health and safety regulations can be burdensome on employers in many ways. Firstly, implementing health and safety regulation can be very time consuming for employers since there are many steps and procedures they carry out to make sure the regulations are in place. Secondly, there are many administrative requirements associated with completing the risk assessments and records. Thirdly, implementing the new regulations result to more costs in terms of the new inputs and processes developed during the implementation of the laws. Lastly, since health and safety regulation requires employers to train and advice employees, there are increased costs associated with training employees. There are also costs on obtaining external advice on implementation of the regulations. Even in Ireland, health and safety regulations can cause a burden to companies and society. However, there is a difference in distribution of the nature of the costs and distribution across Ireland. The greatest burdens to employers in Ireland are medical costs and the costs of low wages for employees.26 The Health and Safety Act 2005 introduced new obligations and responsibilities upon employers.27 An employer violating the Health and Safety Act 2005 may receive a fine not exceeding £1000 or 2 years in prison. These penalties can be burdensome to employers.28 However, the penalties and fines can vary among different industries in Ireland for instance the construction companies. Conclusion Much of the employment legislation is aimed at providing protection for employees rather than employers. Therefore, it is important for employers to be aware of their duties and rights regarding care for their employees. The Safety, Health and Welfare at Work Act 2005 in Ireland emphasizes on the duties of employers in ensuring they provide proper safety, health and welfare for their employees at the workplace. The duties and responsibilities of employers go as far as is reasonably practical in terms of the health and safety regulations. Ireland employment legislation requires employers to prevent workplace injuries and ill health among employees by providing and maintaining a safe workplace, machinery and equipment for employees. Employers should also prevent risks among employees arising from use substance and exposure to hazardous equipment. The law also forces employers to prevent any improper conduct in the workplace that would risk the safety, health and welfare of employees. In addition employers need to offer training sessions to employees on health and safety in the workplace while at the same time provide protective clothing and equipment to keep employees safe during working hours. Most of these duties and responsibilities prove to be challenging and burdensome to most employers. Through cost benefit analysis it is evident that costs of implementing health and safety regulations can be burdensome to employers. Implementing health and safety regulation can be very time consuming for employers. The processes involve many steps and procedures that employers conduct in order to implement the regulations. Many administrative requirements associated with completing the risk assessments can also be very costly to employers. Putting up the new terms and processes can introduce new costs for employers and businesses. Training employees on health and safety at work can result in increased associated costs for training employees and obtaining external advice on implementation of the regulations. Bibliography Alli, Benjamin. Fundametal principles of Occupational Health and Safety, 2nd Edition. Geneva: International Labour Office, 2008. Barnard, Catherine. 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