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FACTSHEET
HEALTH AND SAFETY AT WORK
Key points
The Health and Safety at Work etc. Act 1974 (HSWA) imposes general duties
on employers, the self-employed, controllers of premises, manufacturers and
employees to ensure health, safety and welfare.
Legislation is supported by Approved Codes of Practice (ACoPs) and guidance
notes.
Employers have a duty to employees in respect of their health and safety and
may also be liable for negligent acts committed by fellow employees acting in
the course of their employment.
Occupiers of premises owe a duty of care to lawful visitors and trespassers.
Legislation
Health and Safety at Work etc. Act 1974.
1. – Management of Health and Safety at Work (Amendment) Regulations
2006.
http://www.hse.gov.uk/press/2006/c06007.htm
http://www.hse.gov.uk/pubns/hsc13.pdf
Occupiers' Liability Acts 1957 and 1984.
Employers' Liability (Compulsory Insurance) Act 1969. Employers' Liability
(Compulsory Insurance) Regulations 1998.
Overview
The HSWA imposes general duties on all employers and the self-employed to
ensure the safety of those who may be affected by their business activities, and on
employees to look after their own safety. It also allows outdated, prescriptive
legislation to be replaced by objective-setting Regulations, supported by ACoPs and
guidance notes.
The Management of Health and Safety at Work Approved Code of Practice (ACOP – L21) has
been withdrawn and is no longer available. If you are looking for information on how to manage
risks in your business, HSE has a suite of guidance that will be able to help. Each level of
guidance on HSE’s website offers appropriately targeted information, focussed on making
compliance as straightforward as possible.
http://www.hse.gov.uk/consult/condocs/cd241.htm - replace above with this link?
The European Union has instigated the majority of recent changes in UK health and
safety legislation by issuing EU directives that Member States are required to
implement by passing their own legislation. The HSWA allows such requirements to
be implemented in the UK as Regulations.
Case law has developed alongside legislation, imposing duties of care on employers
and the self-employed to look after the health, safety and welfare of their
employees and the health and safety of others affected by their business
operations.
Breaches of health and safety legislation in the workplace can give rise to both
criminal and civil liability.
Health and Safety at Work etc. Act 1974
Before the introduction of the HSWA, health and safety legislation had developed
in a piecemeal fashion, providing specified industries and hazardous activities with
a set of prescriptive rules to follow. In 1974 this approach was replaced by the
HSWA, which is now the cornerstone of modern health and safety legislation.The
HSWA imposes duties on everyone at work – employers, the self- employed, and
employees. The principal duties it imposes are as follows.
Section 2: Duties of employers to employees
Employers must ensure the health, safety and welfare of their employees subject
only to the defence of 'so far as is reasonably practicable'.
To discharge its duty an employer must provide (so far as reasonably practicable):
safe plant and safe systems of work;
arrangements for the safe use, handling, storage and transport of articles and
substances;
adequate information, instruction, training and supervision;
safe places of work, including safe access and egress; and
a safe working environment with adequate welfare facilities.
All employers must make and review a suitable and sufficient assessment of the
risks of their activities to employees (Regulation 3 of the
An employer with five or more employees must prepare and regularly review a
written health and safety policy statement, the organisational structure and
detailed arrangements for health, safety and welfare, and bring it to every
employee's attention.
Employers must also have in place such arrangements as are necessary to
effectively plan, organise, control, monitor and review any preventive and
protective measures.
Employers must appoint competent persons to assist with the measures necessary
for ensuring health and safety (Regulation 7 of MHSWR) and must also consult
with employee representatives (including trade unions) when making health and
safety arrangements.
Section 3: Duties of employers to others
An employer must conduct his business so as to ensure that non-employees are
not exposed to health and safety risks. Again, this duty is subject to the
defence of 'so far as is reasonably practicable'. If the employer is a self- employed
person, then he must also, so far as is reasonably practicable, conduct his business
to ensure that he is not exposed to such risks. Non- employees include
contractors, visitors and members of the public.
An employer must make and review a suitable and sufficient assessment of the
risks of their activities to persons not in their employment who may be affected by
the carrying on of their business (Regulation 3 of MHSWR).
Section 4: Duties relating to premises
Those individuals or organisations with total or partial control of work premises
must, so far as is reasonably practicable, ensure the health and safety of all nonemployees who work there, to the extent of their control.
Therefore, landlords and managing agents may be responsible for the safety of
those working in the common parts of buildings (e.g. cleaners, maintenance staff,
etc.), whilst non-domestic tenants will be responsible for the health and safety of
any person in the areas covered by their lease.
Section 6: Duty of manufacturers
Anyone who designs, manufactures, imports or supplies articles or substances for
use at work must ensure, so far as is reasonably practicable, that those articles are
safe for their intended use and during cleaning and maintenance.
Section 7: Duties of employees
While at work, employees have a duty:
not to endanger themselves or others through their acts or omissions; and
to cooperate with their employer, e.g. by wearing protective equipment.
Section 8
No person (whether an employee or not) shall misuse anything provided in the
interests of health, safety or welfare.
Section 36
Where an offence is committed due to an act or default of some other person (not
being an employee), that person shall be guilty of the offence and may be charged
and convicted of it whether or not the employer is also charged.
Section 37
Where an offence by the company is proved to have been committed with the
consent, connivance or by the neglect on the part of any director, manager or
company secretary (or similar person), then he or she will also be guilty of the
offence and may be prosecuted personally.
Section 40
An employer who intends to rely on a defence of reasonable practicability in a
health and safety prosecution is required to prove that they have done everything
reasonably practicable (or everything practicable for some offences) to safeguard
the health and safety of employees, non-employees or members of the public. This
means that the burden of proof is on the employer to prove that adequate
prevention methods were in place.
Reasonably practicable
Many health and safety duties require the duty holder to do everything possible to
ensure the health and safety of others subject only to a defence of 'so far as is
reasonably practicable'. This phrase means doing less than everything physically
possible (i.e. everything 'practicable') and involves a balance to be struck between,
on the one hand, the risk to health and safety (in terms of the likelihood of harm
occurring and the potential
consequences of it if it does) and, on the other hand, the inconvenience and cost in
terms of time, money and other resources of overcoming that risk. If the costs are
disproportionate to the risks then the test is satisfied and the employer will be
more positively able to seek the defence that it was not reasonably practicable to
do more to protect against the risk.
Assistance on what is reasonably practicable comes from ACoPs and guidance
documents issued by the HSE, plus relevant British Standards and industry
guidance and common practices.
In practice however, the defence is very difficult to satisfy as it is frequently the
case that when an incident is viewed with hindsight an additional measure with a
small resource implication may have been taken in relation to that incident. In
addition, the courts have also determined that the standard of care is the same
regardless of the size of the company and its available resources.
Employers should record their risk assessments and the decisions to implement or
reject certain safety measures. Since safety measures must be proportionate to
the risk they are averting, the first step is to identify and assess the risk, after
which the available control measures should be identified and assessed. If the time
and costs involved in the control measure are disproportionately high in
comparison with the risk involved, then in theory the duty to do everything
reasonably practicable will be satisfied even though the measure is not
implemented. In practice, considerable evidence of the reasons for this decision
will be required if this defence is to be used in relation to a health and safety
incident.
The difficulty for many employers in making this judgement is that the question of
whether the correct balance is reached is one that only a court can definitely
decide after looking at all the evidence in each case.
Regulations
Parliament has passed numerous Regulations made under the provisions of section
15 of the HSWA that impose detailed obligations on employers and
those controlling work activities. The most important of these are covered in other
chapters of this handbook.
Approved Codes of Practice
The Management of Health and Safety at Work Approved Code of Practice (ACOP – L21) has
been withdrawn and is no longer available. If you are looking for information on how to manage
risks in your business, HSE has a suite of guidance that will be able to help. Each level of
guidance on HSE’s website offers appropriately targeted information, focussed on making
compliance as straightforward as possible.
For further details go to: http://www.hse.gov.uk/pubns/books/l21.htm
Prosecution
Health and safety prosecutions take place in the criminal courts, starting formally
with the receipt of a summons to appear at the Magistrates' Court. This is usually
issued in a court near to where the accident occurred. Generally, the case may be
heard in the Magistrates' Court, where the maximum penalty that can be imposed
is a £20,000 fine and/or (for a small number of charges) six months' imprisonment
for each charge. Cases that are complex, or result from a more serious outcome,
will be committed (referred) by the magistrates to the Crown Court, where the
maximum penalty rises to an unlimited fine and/or two years' imprisonment (again
for specific charges only).
Maximum penalties under the HSWA and the Regulations are set out in
Table 1.
Table 1: Maximum penalties available under HSWA and associated
Regulations
Mitigation and aggravation
Sometimes in health and safety investigations the measures which an employer
takes may amount to either a complete or partial defence to the charges.
However, if prosecuted the same information may also amount to mitigation of the
offence committed. Good mitigating factors are likely to
result in a reduction in the fine imposed.
The courts have given guidance on the particular factors which amount to
mitigating or aggravating features (that result in a higher fine) to an offence.
These include the following.
Mitigating features
A prompt admission of guilt.
The defendant fell only slightly short of meeting the test of reasonable
practicability.
A good safety record.
Positive steps taken by the company to remedy deficiencies including the cost
involved in implementing these.
Aggravating features
Failure to heed previous warnings.
Whether death or a serious injury resulted from the breach. Whether profit
was put before safety.
A deliberate breach.
Civil action
Anyone who suffers injury or ill health as a result of work activities may be entitled
to bring a personal injury claim against those responsible for compensation. To be
successful, the injured party (the claimant) must prove that:
the defendant owed him a duty of care;
the duty was breached; and
the injury was a foreseeable result of the breach.
The existence of a duty of care is generally easy to prove in an employer–
employee relationship, since the employer has a duty to provide under civil law:
safe plant and equipment;
safe systems of work;
safe workplaces with safe access and egress; and competent fellow workers.
These civil law duties mirror the duties under section 2 of the HSWA.
Comprehensive risk assessments that are up to date will provide good evidence in
defence of any claim that the employer has breached any of the above duties.
Some health and safety provisions found in Regulations also give a right of civil
action when they are breached (an action for breach of statutory duty). However, a
breach of the HSWA does not provide a right of action under
civil law.
Occupiers' Liability Acts
Occupiers (those in control) of premises are under duties contained in the
Occupiers' Liability Acts 1957 and 1984:
The 1957 Act imposes a duty to take reasonable steps to ensure that lawful
visitors to the premises are safe from dangers due to the state of premises.
The 1984 Act imposes a duty to take reasonable steps to ensure that
trespassers are not injured as a result of dangers arising from the state of
premises. This is a slightly lower standard of care than that for lawful visitors.
A breach of these Acts is not a criminal offence and is only actionable in civil law in
a claim for compensation.
Vicarious liability
An employer may be responsible for the negligent acts or omissions of employees
committed in the course of their employment. A claimant can sue the employer on
the basis of vicarious liability, provided he can show that the employee was
negligent and this caused his injury. An employer
will escape liability if he can show the employee was acting 'on a frolic of his own'
outside the course of his employment.
Damages
Successful claimants will usually receive compensation in the form of a one- off
lump sum. This is assessed under a number of headings:
pain and suffering;
damage to clothing, property, etc.;
loss of earnings;
medical or nursing expenses;
other out-of-pocket expenses, such as additional travel or medication; and
inability to pursue personal / social / sports interests or activities.
Most personal injury claims are paid for out of insurance (employers' liability or
public liability), subject to any exclusions or excesses under the policy. The
Employers' Liability (Compulsory Insurance) Act 1969 and 1998
Regulations require employers to hold a minimum of £5m insurance cover for
claims brought by their employees.
Sources of further information
Health and Safety Strategies 2007: Case Report looks in-depth at separate
management issues through detailed case studies from UK-based organisations.
This report is essential reading for all health and safety managers, and all those
responsible for managing safety in the workplace. For more information visit
https://www.workplacelaw.net/shop/product/id/503