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Esther Smith

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Ask the Expert: Are we legally obliged to have a health and safety policy?

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The question

Although my employer does not have a health and safety policy, the internal website says that:
 
"As an employee, you have a personal responsibility to take care of yourself and others and to avoid placing yourself or others in a situation that is hazardous or a risk to health."
 
I have asked the HR director about a policy and queried the fact that no-one has display screen equipment assessments, but it keeps on falling on deaf ears. What can I do?
 
 
The legal verdict
 
Esther Smith, partner at Thomas Eggar
 
Your employer should have a health and safety policy in place and should also give employees the name of a designated member of staff to whom health and safety concerns can be reported. 
 
They should also be carrying out work place assessments to evaluate any health and safety risks in the workplace generally and in relation to any VDU use in particular.
 
If such activity is not being undertaken and your requests for this situation to be rectified are not being responded to, you could raise a grievance about it. If you still get no response internally, you may be able to justify taking your concerns externally to the Health and Safety Executive, but going down this route should be a last resort.
 
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
 
 
David Ludlow, head of employment at Barlow Robbins
 
If, as appears to be the case, your employer has five or more employees, it must prepare and, as often as is appropriate, revise a “written statement” of its general policy with respect to the health and safety of the organisation and its employees while at work.
 
The arrangements for enforcing that policy should also be clarified. Your employer is obliged to bring the statement and subsequent revisions to it to the attention of you and your fellow employees.
 
Therefore, it looks as though they may be committing a criminal offence in failing to discharge this statutory duty, the penalty for which is imprisonment for a term not exceeding 12 months or a fine of up to £20,000.
 
If the offence has been committed due to the neglect of the HR director, he or she can be found guilty of the offence as well as the company itself.
 
In the first instance, you can complain about the apparent breach of a statutory duty to any appointed trade union health and safety representative or to an elected representative if there is no trade union representation. You can also make the complaint directly if the company has elected to consult directly with employees about such matters.
 
If there are no such internal procedures or mechanisms, you can complain directly to the Health & Safety Executive and they will investigate the matter (using the wide statutory powers that they have to investigate including, for example, entering the company’s premises).
 
They may choose to prosecute if it is in the public interest to do so, but it is unlikely that they would go down this route in the first instance. It is much more probable that they would serve an improvement notice, which identifies the breach of duty and requires the company to remedy the contravention within a certain time period.
 
Reasonable care
 
The reference on the firm’s internal website to employees’ individual duties “to take care of yourself and others and to avoid placing yourself and others in a situation that is hazardous or a risk to health” is a statement of the duty that you and your fellow employees have under section seven of the Health and Safety at Work etc Act 1974.
 
It requires you not only to take reasonable care in relation to your own health and safety, but also to that of other persons who may be affected by your acts or omissions. It also requires you to co-operate with your employer to enable them to discharge their duties.
 
One of these duties is a general one “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all of its employees”.
 
If you or any other staff member, or for that matter self-employed people working for the company, habitually use Display Screen Equipment as a significant part of your or their normal work, your employer must carry out a “sufficient” risk assessment of the DSE, the workstation, the job, and of any special staff needs.
 
It must also take reasonably practicable steps to reduce risks to health and safety. To this end, the company must provide you and your colleagues with: appropriate eye and eyesight tests; an opportunity for breaks; training and information about the steps it has taken in relation to DSE.  
 
Again, in relation to any suspected breaches of these specific requirements, you can report the matter to the company’s internal health and safety representatives, raise the matter directly yourself and, if nothing happens, complain to the HSE.
 
Your employer must not subject you to a detriment or dismiss you because you have taken such steps.

David Ludlow is head of employment at Barlow Robbins.

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