Transcript NEBOSH National General Certificate

NEBOSH National General
Certificate
Unit 1: Session 2
• Criminal liability
• Health and Safety at Work Act 1974 and
subordinate legislation
• Roles and functions of external agencies
• Powers of inspectors and enforcement
Statute Law: Types
• Acts: eg, Health and Safety at Work etc Act 1974 - primary
or principal legislation with enabling provisions
• Regulations: eg, Control of Substances Hazardous to
Health regulations 1999 - delegated legislation
• Orders: eg, Commencement Orders bringing Acts into
force
• Approved Codes of Practice (ACoPs): eg, COSHH
• Guidance Notes: eg, HSE HSG and GN series
Statute Law: Status of Acts and
Regulations
• Acts: primary or principal legislation with enabling
provisions made by parliament
• Regulations: delegated (by Acts) legislation made by
appropriate Secretary of State following proposals made
by Health and Safety Commission - laid before parliament
and do not require a vote but can be vetoed within 40 days
of being laid
Status of Orders, ACoPs and
Guidance
• Approved Codes of Practice: supplementary guidance to
Acts regulations approved by HSC. Failure to comply not
an offence provided defendant can show compliance
achieved by some other equally effective means
• Guidance: eg, HSC/HSE guidance, British Standards,
industry guidance - not law but persuasive
Types of Statutory Duty
• Absolute: must be achieved whatever cost or
inconvenience
• Practicable: (possible in the light of current knowledge
and invention)
• Reasonably practicable: (Edwards v National Coal Board
(1949)) - balance between cost of action (money, time,
inconvenience) and risk - where risk is insignificant in
relation to cost action need not be taken
Criminal Law: Offences
• Summary offences: least serious criminal offences heard
only in Magistrates Courts, eg TWOC, common assault
• Triable either way: triable summarily or on indictment
(most health and safety cases): can be heard by Magistrates
Court or Crown Court - both prosecutor and defendant
have a role in deciding the venue
• Indictable offences: serious offences which can only be
heard by Crown Court, eg murder, robbery
Magistrates Courts
• All criminal cases begin in the Magistrates Court
• Magistrates are appointed members of public assisted on
law and procedure by professionally qualified Clerk to
Justices
• Summary offences: always heard in Magistrates Courts
Magistrates Courts (Cont)
• Triable either way: Magistrates decide venue but
defendant has right of trial in Crown Court. If found guilty
by Magistrates they may refer case to Crown Court for
sentencing if they feel their powers are inadequate
• Indictable offences: Magistrates ensure sufficient
evidence before referring to Crown Court (commital
hearing)
Crown Courts
• Trial by judge (decides law) and jury (decide facts)
• Trial of cases where defendant has elected jury trial or
where Magistrates have decided jury trial is appropriate
due to seriousness and/or their limited powers of sentence
• Prosecution and defendant represented by counsel
Penalties: Magistrates Courts
• Failing to comply with general duties under Health and
Safety at Work etc Act 1974: up to £20 000
• Failing to comply with Improvement or Prohibition Notice:
up too £20 000 and/or up to 6 months imprisonment
• Failing to comply with regulations: up to £5000
Penalties: Crown Courts
• All offences: unlimited fine
• Failing to comply with an Improvement or Prohibition
Notice: unlimited fine and/or up to 2 years imprisonment
Manslaughter (Involuntary)
Unlawful killing without ‘malice aforethought’ - causing
death through gross negligence. Under present law a
company cannot be convicted without proof of reckless
behaviour by at least one director (the ‘identification’
principle).
Proposed new offences of:
• corporate killing
• killing by individuals where recklessness or gross
carelessness as to health and safety precautions has caused
death
Health and Safety at Work etc
Act 1974 (HSWA 1974)
Historical Context
• 1833: first substantive health and safety legislation and
four inspectors appointed
• Early legislation selective, prescriptive and hardware based
• Robens Committee: 1970-1972
Report of Robens Committee
1972
• Replace existing legislation with one enabling Act
applying to all persons at work and persons affected by
work activities
• Create new national authorities: HSC and HSE
• Replace mass of detail with basic principles of general
application
• Place more emphasis on ‘software’ - systems of work,
training, supervision, etc
• Provide new methods of enforcement in addition to
prosecution
HSWA 1974: Section 2
General duty to ensure, so far as is reasonably practicable, the
health, safety and welfare at work of all employees and in
particular:
• safe plant and systems of work
• safe use, handling, transport and storage of substances and
articles
• provision of information, instruction, training and
supervision
• safe place of work, access and egress
• safe working environment and adequate welfare facilities
HSWA 1974: Section 2 (cont)
• Written health and safety policy statement (where 5 or
more employees)
• consultation with safety representatives and formation of
heath and safety committees where there are recognised
trade unions (Safety Representatives and Safety
Committees Regulations 1977)
Note that Health and Safety (Consultation with
Employees) Regulations 1996 extends consultation rights
to all employees
HSWA 1974: Section 3
General duty of employers and self employed to
conduct undertaking so as to ensure so far as
reasonably practicable that persons other than their
employees are not exposed to risks to their health or
safety, eg, visitors, contractors, members of public.
Potentially of wide application.
HSWA 1974: Section 4
General duty of persons concerned with premises to persons
other than their employees
Covers situations where persons permit use of non-domestic
premises by persons who are not their employees as:
• a place of work or,
• a place where they may use plant or substances provided
for their use there
HSWA 1974: Section 5
General duty of persons in control of premises
in relation to harmful emissions into
atmosphere.
Dormant section - overtaken by
Environmental Protection legislation enforced
by Environment Agency.
HSWA 1974: Section 6
General duty of manufacturer etc. as regards articles
and substances for use at work. Applies to any
person who:
•
designs, manufactures, imports or supplies any article for
use at work or,
• manufactures, imports or supplies any substance for use at
work.
HSWA 1974: Section 7
General duties of all employees at work:
• Section 7(a): to take care for health and safety of
themselves and others who may be affected by acts or
omissions and,
• Section 7(b): to co-operate with employer so as to enable
compliance with statutory requirements.
HSWA 1974: Section 8
No person to intentionally or recklessly interfere with or
misuse anything provided in the interests of health, safety or
welfare
HSWA 1974: Section 9
Duty not to charge employees for things done or provided
under specific requirements.
Employer may not levy any charge - or permit any levy to be
charged - concerning anything done or provided under
statutory requirements.
HSWA 1974: Section 37
Provides that where an offence shown to have been
committed:
• with consent or connivance of,
• or to have been attributable to neglect,
on part of director, manager, secretary, etc, both corporate
body and person may be prosecuted and punished
accordingly.
HSWA 1974: Section 40
Where a duty is qualified by reasonably practicable or
practicable the burden is on the accused to prove - on a
balance of probabilities - that it was not reasonably
practicable or practicable to do more than was done.
The ‘reverse onus of proof’.
The Management of Health and
Safety at Work Regulations 1999
• Originally implemented in 1993 as a result of EC
Framework Directive (89/391/EEC)
• Made under powers contained in Section 15 of HSWA
1974
• Accompanying Approved Code of Practice (approved
under Section 16 of HSAW 1974)
• Regulations and ACoP revised in 1999
Health and Safety Commission
(1)
HSC established with general duty ‘to do such
things and make such arrangements as it considers
appropriate for the general purposes’ of:
• ensuring health, safety and welfare of persons at work and
protecting those not at work from work activities
• controlling keeping and use of dangerous substances
• controlling emissions to atmosphere
Health and Safety Commission
(2)
• comprises up to nine members appointed by Secretary of
State (Department for Work and Pensions)
• chairman appointed by SoS and other members appointed
from industry, trade unions, local authorities and others
• HSC has several advisory committees to give it advice on
subjects such as toxic substances, nuclear safety etc
Health and Safety Executive (1)
Statutory body working under direction and guidance of HSC
(HSC may not direct HSE about enforcement in respect of
any particular case).
Main functions exercised through
inspectorates to:
• enforce legal requirements
• provide advice to employers, trade unions, etc
Local Authority Enforcement
Enforcement of health and safety legislation in lower risk
sectors, eg offices, shops, places of entertainment, allocated
by regulations to relevant local authority.
Powers of Inspectors (1)
Inspectors can:
• enter premises at any reasonable time (or any time where
there is danger)
• take a police constable where obstruction is anticipated
• take other people and equipment or materials onto
premises to assist in investigations
• carry out any examinations and investigations as required
• require locations to be left undisturbed
Powers of Inspectors (2)
• take measurements, photographs and recordings
• take samples of articles or substances
• require dismantling and/or testing of articles and
substances
• take possession of articles and substances for examination
and use as evidence
• take statements and copies of relevant documents
• require provision of facilities to assist enquiries
• do anything else necessary to enable duties to be carried
out
Enforcement
Inspectors visit premises and places for two
basic purposes:
• Proactive (planned preventive) inspections
• Investigations: usually in response to RIDDOR
reports or complaints
Enforcement: Options
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Advice (verbal or in writing)
Improvement Notice
Prohibition Notice
Prosecution (summary or indictment)
Seize, render harmless or destroy any article or
substance considered to be cause of imminent
danger or serious injury
Advice
Where health and safety is generally well
regulated and matters of minor concern are found,
inspector may give advice rather than take formal
enforcement action.
Advice may be confirmed in writing: onus placed on
employer to confirm action taken.
Improvement Notice
• requires action to be taken to remedy a breach of
statutory duty within a specified time period
• at least 21 days must be given during which an
appeal to an industrial tribunal may be made:
inspector may extend term of notice
• making of an appeal suspends notice until terms
confirmed or amended by tribunal
Prohibition Notice
• may be issued where inspectors opinion is that
work activity presents risk of serious personal
injury
• may take immediate effect (usually) or may be
deferred
• appeal to industrial tribunal may be made within
21 days but does not suspend the notice until
appeal has been heard
Prosecution
HSC expects that prosecution will be considered :
• when it is appropriate to draw general attention to
the need to comply with the relevant law,
• or there is judged to have been considerable harm
arising from breach of law,
• or the gravity of offence and general record and
approach of the offender warrants it
Enforcement Policy
Basic principles:
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Proportionality
Consistency
Transparency
Targeting
See HSC Enforcement Policy Statement: