Alison Wallace, head of employment practice at Steptoe & Johnson solicitors presents a quick reference guide to the key health and safety obligations of employers.

Working Time
The European Parliament’s approval of the proposed amendments to the Working Time Directive which would remove the UK’s right to opt out of the 48 hour maximum working week is a significant step on the road to its abolition.

Employers may forget that the 48 hour maximum working week was brought in as a health and safety measure. The UK could not avoid complying with it so the opt out was seen as a way round the draconian legislation which many UK businesses felt was a step too far.

Duty of Care
Senior managers often brush health and safety matters under the carpet believing they are more to do with asbestos and industrial injuries even though a breach of the regulations could result in a criminal offence.

It is becoming an increasingly important area for other injuries as well. Thirty million working days were lost last year according to the Health and Safety Executive as a result of working related illnesses and much of this absenteeism is attributed to stress.

Every employer has a general common law duty to take reasonable care for the safety of its employees. The duty includes amongst other things:

• a duty to provide safe plant and equipment




• a safe place of work




• to take reasonable care to see that the system of work is safe

Key legislation

As with employment law, the development of health and safety duties has been fundamentally influenced and enhanced by the consequences of membership of the European union. Regulations are generally made under the Health and Safety at work etc Act 1974 in order to implement EU Directives.

Key legislation includes:

• Health and Safety at Work Act 1974




• Management of Health and Safety at Work Regulations 1999 and




• Workplace (Health and Safety and Welfare) Regulations 1992

The mantra for responsible health and safety provisions in a business must be assessment, monitoring and review.

The key obligations can be summarised as follows:

• Prepare and keep up to date a “written statement of the general policy with respect to health and safety at work of employees … and bring the statement and any revision of it to the notice of all employees.”
• Provide an ‘approved leaflet’ or display an approved Health & Safety law poster at a place of reasonable access to employees whilst at work or provide a leaflet outlining British health and safety laws to each employee (complying with the new form of poster or leaflet required as of June 2000).
• Carry out a risk assessment for the purpose of identifying the measures to be taken to comply with the relevant statutory provisions.
• Comply with special risk assessment duties in relation to new and expectant mothers.
• Report all work related health and safety incidents, as specified in the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995.
• Provide information, instruction and training to employees and others who may be affected by the organisation’s activities.
• Put in place management systems for the effective planning, organisation, control, monitoring and review of the preventative and protective measures.
• Appoint competent persons to assume responsibility for health and safety matters.
• Consult with employees on health and safety issues
• Establish and promote a ‘safety culture.’
• Provide appropriate health surveillance.
• Maintain appropriate records of all health and safety matters.
• Carry Employers Liability insurance

There are three distinct levels of statutory duties which allow different responses to the relevant hazards. These are:

1. Absolute duty – strict liability. There is no defence available for any offence.
2. Duty to do what is practicable. This enables the employer to take into account current technical knowledge and feasibility regarding the prevention of an offence.
3. Duty to take steps that are reasonably practicable. This allows a cost benefit analysis of the prevention of an offence.

Statutory duties such as those under the Health & Safety at Work Act 1974 and Regulations can give rise to criminal liability. This means that an offending employer may be prosecuted by the enforcement agencies and brought before the courts to answer the alleged offences.

Enforcement

A health and safety inspector can:

1. Gain access without a warrant to a workplace at any time.
2. Employ the police to assist in the execution of the inspector’s duties.
3. Take equipment or materials onto the premises to assist the investigations.
4. Carry out investigations and examinations as seen fit.
5. Direct that locations remain undisturbed for as long as is seen fit.
6. Take measurements, photographs and samples.
7. Order the removal and testing of equipment
8. Take articles and equipment away for examination or testing.
9. Take statements, records and documents.
10. Require the provision of facilities needed to assist the inspector with the enquiries.
11. Do anything else necessary to enable the inspector to carry out these duties.

Co-operation by a business with any health and safety inspector is paramount as a business can be prosecuted for failure to assist an inspector.

The financial consequences of receiving a prohibition notice if there is a contravention of any Act or Regulation is often severe because of work delays and disruptions.

Risk Assessments

The health and safety of pregnant workers and new mothers is important. The requirement to carry out a risk assessment does not arise once the employee is pregnant. It arises simply out of the fact of employment and if there are women of child bearing age employed on an undertaking, a risk assessment should already be in place.

An employer’s failure to carry out a risk assessment under the Regulations may amount to a detriment entitling an employee to bring a sex discrimination claim.

A risk assessment is nothing more than a careful examination of what in the work environment would cause harm to people that can be weighed up as to whether the employer has taken enough precautions or should do to prevent harm.

An employer should:

1. Look for the hazards
2. Decide who might be harmed and how
3. Evaluate the risks and decide whether existing precautions are adequate or consult whether more should be done
4. Record the findings
5. Review the assessment and revise it if necessary

A ‘hazard’ is anything that can cause harm, for example chemicals, electricity, wet floors, working from ladders and ‘risk’ is the chance, whether high or low, that someone will be harmed by the hazard.

Training of staff and particularly newly recruited staff on induction should not be forgotten especially where there are employees whose first language is not English.

Health and Safety Policy

The preparation of a health and safety policy (for employers with five or more employees) if there is not one already in place should be high on the agenda of any HR Department. Areas to be covered include:

• Statement of general policy on health and safety




• Responsibilities for health and safety overall, day-to-day and specific areas




• Health and safety risks arising from the business work activities




• Consultation




• Information, instructions and supervision




• Competency for tasks and training




• Accidents, first aid and work related ill health




• Monitoring




• Emergency procedures

Employees should be able to volunteer for first aid training and users of VDU equipment should be offered eye tests regularly. Visitors to business premises should not be forgotten nor those affected by the business including neighbours, the public and people who use the products and/or their services.

Home workers should not be forgotten, an employers’ duty in relation to risk assessments remains just as relevant for home workers as for office based staff.

Finally, the use of mobile phones when driving has also been considered by the Health and Safety Executive. The short answer is do not permit this unless there is a hands free system in place and even then be warned that it may not be adequate.

A lot has been written about stress within work places, it is a health and safety issue which knows no boundaries in any business and prudent employers should have a separate stress policy in place.

Government plans are in place that will mean that by 2006 all government departments and the NHS will be smoke free with the end of 2007 set as a target date for achieving this in all enclosed public spaces and work places. From the end of 2008 all licensed premises will be smoke free where food is prepared and served. Smoking therefore in private offices may soon be a thing of the past.

The scope of health and safety is very wide from the office temperature to work place stress but the underlying rationale is to reduce the risk and protect people, issues no business can afford to ignore.