Health and safety law legal terms

A simple explanation of the most common terms used in law

Health and Safety

‘Health’ refers to physical and mental well being, whilst ‘Safety’ refers to freedom from risk of injury.

Regulations and Approved Codes of Practice

Under the health and safety at Work Act 1974, there are numerous delegated legislation, usually in the form of Regulation. The HASAWA within it’s structure makes the ability for the Secretary of State to introduce new legislation.

Regulations made under the HASAWA impose a statutory requirement and are in some cases supplemented by Approved Codes of Practice (ACoP) which have special legal status and may be used as evidence in criminal proceedings, where statutory requirements have been contravened. In essence they are a benchmark, a minimum standard.

ACoP’s have been made covering a whole variety of health and safety subjects. Some Regulations are supported by ‘Guidance Notes’ as opposed to an ACoP. This is significant as a ‘Guidance Note’ does not have the same legal status as an ACoP, it is simply for guidance.

Practicable and Reasonably Practicable

In many instances in the UK legislation, stemming from the HASAWA, a legal duty given in a Regulation is qualified by the words practicable or reasonably practicable:-

Practicable is defined as ‘capable of being carried out’ or ‘feasible’ within the current state of knowledge, at whatever expense, taking note of published information, Guidance Notes or ACoP.

Safety precautions must not be regarded as impracticable because they slow up production, or are difficult or inconvenient.

To be reasonably practicable, firstly it has to be technically possible. However, the risk must also be weighed against the cost of protecting or removing the hazard, and only when it can be shown that there is a disproportionately high cost, for minimal risk reduction, can it be deemed not to be reasonably practicable.

In all cases, the final decision is with the courts, and the onus of/ proof that the duty is not practicable or is not reasonably practicable is on the employer. In essence, the quantum measure given by the HASAWA.

Enforcement – The Health & Safety Inspectorate

The HASAWA created the Health & Safety Commission (HSC) and the Health & Safety Inspectorate (HSE).

The HSC act as the policy making element, whilst the HSE are the enforcing and advice arm. The HSE’s powers are defined by the HASAWA. The powers may also be exercised by Local Authority Environmental Health Officers on certain smaller sites and in offices, etc.

Investigation by a HSE Inspector

Health and Safety Executive (HSE) Inspectors have a general right to examine and investigate as may be necessary. They may enter any premises (accompanied by a police constable or other authorised person), taking with them equipment or materials for examination. They may also instruct things to be left undisturbed if required for examination or investigation.

A HSE Inspector may also take measurements, samples, photographs and such recordings as may be necessary, and have dismantled or tested any article or substance considered dangerous; or take possession of any article for examination and evidence.

A HSE Inspector may inspect or take copies of books or documents. They may demand from an employee any information they think necessary. They can also ask an employee to sign a declaration of truth appertaining to their answers. In general, a HSE Inspector can demand the full co-operation of any person to afford them such facilities and assistance as they may think necessary.

Advice and information

Health and Safety Executive (HSE) Inspectors can also act as ‘Information Officers’. It is their duty to tell employee representatives (safety representatives or union representatives) or other employees about anything that may affect their health and safety at work.

Enforcement – The powers of a HSE Inspector

Health and Safety Executive (HSE) Inspectors can use any of their powers listed below against any person taking part in, or in control of, any work activity, or piece of equipment. ‘Any person’ means an employer, self-employed person, a supplier, or the employee.

• Issue an improvement notice. Once an inspector has identified a situation which requires remedial work to be carried out and decides that they intend to issue an improvement notice, the business concerned has the right, on request of a written explanation of what is wrong, to outline what needs to be done and by when, before the notice is issued.
• The company then has two weeks to make representations to an employment tribunal, if they think that the notice should be changed or even not issued. If representations are not received, the notice will be issued.
• Issue a prohibition notice. This forbids any further activity, or use of equipment, that may be a serious risk to safety or health. The ban continues until the situation is remedied.
• Seize, render harmless or destroy any substances or articles considered to be a source of imminent danger or serious personal injury.
• Prosecute at a Magistrates’ or a Crown Court.
• Contravention of some of the requirements of the HASAWA can lead to summary prosecution in a Magistrates’ Court.

Prohibition Notice and Improvement Notice

Anyone served with an Improvement or Prohibition Notice has the right to appeal to an industrial tribunal. This must be within 21 days of the issue of the Notice. The tribunal may cancel, confirm or modify the Notice;

• On appeal following an improvement notice, the notice will be suspended until the tribunal meets and decides the issue.

On appeal following a prohibition notice, the notice will stand until the appeal has been decided, or the tribunal orders it to be suspended.

Criminal Liability and Civil Liability

All health and safety offences are tried at either a Magistrates or Crown Court, depending on the severity. Magistrates can refer cases to a Crown Court.

Health and safety law is tried as a criminal breach. It is usually a matter of the prosecution (the Crown) vs. the defendant. The burden of proof rests with the prosecution which needs to be proven beyond reasonable doubt.

Section 2 of the HASAWA creates a criminal offence, Section 33 creates the offence and the penalty. Similarly supporting legislation will define the offence and the remedy.