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The Health and Safety at Work etc. Act 1974 (initialisms: HSWA, HASWA or HASAWA) is an Act of the Parliament of the United Kingdom that as of 2008[update] defines the fundamental structure and authority for the encouragement, regulation and enforcement of workplace health, safety and welfare within the United Kingdom. The Act defines general duties on employers, employees, contractors, suppliers of goods and substances for use at work, persons in control of work premises, and those who manage and maintain them, and persons in general. The Act enables a broad regime of regulation by government ministers through Statutory Instrument which has, in the years since 1974, generated an extensive system of specific provisions for various industries, disciplines and risks. It established a system of public supervision through the creation of the Health and Safety Commission and Health and Safety Executive, since merged, and bestows extensive enforcement powers, ultimately backed by criminal sanctions extending to unlimited fines and imprisonment for up to two years. Further, the Act provides a critical interface with the law of the European Union on workplace health and safety. [edit] BackgroundSecretary of State for Employment and Productivity Barbara Castle introduced an Employed Persons (Health and Safety) Bill in 1970[3] but the debate around the Bill soon generated a belief that it did not address fundamental issues of workplace safety. In the same year, the Occupational Safety and Health Act was passed into United States federal law. As a result, a committee of inquiry chaired by Lord Robens was established towards the end of Harold Wilson's first government, October 1964 - June 1970. When the Conservative Party came to power following the United Kingdom general election, 1970, they gave Castle's Bill no parliamentary time, preferring to wait for the Robens Report which was published in 1972.[4][5] Conservative Secretary of State for Employment William Whitelaw introduced a new Bill on 28 January 1974 but Labour were returned to power in the United Kingdom general election, February 1974 and the Bill again lost.[6] The new Labour administration finally secured the passage of a Bill that year. [edit] Structure of the ActThe Act lays down general principles for the management of health and safety at work, enabling the creation of specific requirements through regulations enacted as Statutory Instruments or through codes of practice. For example, the Control of Substances Hazardous to Health Regulations 2002 (COSHH), the Management of Health and Safety at Work Regulations 1999, the Personal Protective Equipment (PPE) at Work Regulations 1992 and the Health and Safety (First-Aid) Regulations 1981 are all Statutory Instruments that lay down detailed requirements. It was also the intention of the Act to rationalise the existing complex and confused system of legislation (s.1(2)). Since the accession of the UK to the European Union (EU) in 1972, much health and safety regulation has needed to comply with the law of the European Union and Statutory Instruments under the Act have been enacted in order to implement EU directives. In particular, the Act is the principal means of complying with Council Directive 89/391/EEC on health and safety at work.[7] Further important changes to section 6, duties in respect of articles and substances used at work, were made by the Consumer Protection Act 1987 in order to implement Council Directive 85/374/EEC on liability for defective products.[8] [edit] ObjectivesSection 1 sets out the objectives of the Act as:
As originally enacted, there was a fourth objective:
— but this provision was repealed when control of emissions was brought under a uniform scheme of legislation by the Environmental Protection Act 1990. In general, the other provisions about emissions in the original Act have subsequently been repealed. [edit] General duties[edit] Duties of employersSection 2 states that "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees", and in particular that such a duty extends to:
Section 3 states the duty of all employers and self employed persons to ensure, as far as is reasonably practicable the safety of persons other than employees, for example, contractors, visitors, the general public and clients. Employers must also prepare and keep under review a safety policy and to bring it to the attention of his employees (s.2(2)). Trade unions may appoint safety representatives and demand safety committees. The representatives have a right to be consulted on safety issues (ss.2(4), (6) and (7)). Since 1996 employers have had a duty to consult all employees on safety matters.[9][10] No employer may charge an employee for provision of health and safety arrangements (s.9). The Act does not apply to domestic servants (s.51). [edit] Duties of persons having control of premisesSection 4 defines a duty of occupiers of premises, for example commercial landlords, managers of serviced office accommodation, and also maintenance contractors, towards people who use those premises for work. Those premises, and the means of entry and exit, must be, as far as reasonably practicable safe and without risks to health. [edit] Duties towards articles used at workAn article for use at work is any (s.53(1):
Section 6(1) defines the duty of any person who designs, manufactures, imports or supplies any article for use at work to:
A person may rely on testing done by other so long as it is reasonable for him to do so (s.6(6)). A person may rely on a written undertaking by another person to ensure the safety of an item (s.6(8)) Designers and manufacturers must carry out research to identify and eliminate risks, as far as reasonably practicable (s.6(2)). Erectors and installers have responsibilities to ensure, as far as reasonably practicable, that an article is so erected and installed that it will be safe and without risks to health at all times when it is being set, used, cleaned or maintained by a person at work (s.6(3)). Section 6 was extended by the Consumer Protection Act 1987 to cover fairground equipment and its use by persons at work and enjoyment by members of the public.[11] [edit] Duties towards substances used at workSection 6(4) defines the duty of any person who manufactures, imports or supplies any substance for use at work to:
A person may rely on testing done by another so long as it is reasonable for him to do so (s.6(6)). A person may rely on a written undertaking by another person to ensure the safety of an item (s.6(8)) Manufacturers must carry out research to identify and eliminate risks, as far as reasonably practicable (s.6(5)). [edit] Exceptions in respect of supply of articles and substancesThe duties only extend to persons in business or acting by way of trade, even though not for profit, and only to matters within their control (s.6(7)). Persons who import into the UK are not relieved of liability for activities such as design and manufacture that took place outside the UK and over which they had control.[12] Finance companies who supply articles or substances by way of hire purchase or credit agreement have no duties under section 6 (s.6(9)). [edit] Duties of employeesUnder section 7 all employees have a duty while at work to:
[edit] Duties of persons in generalSection 8 requires that "no person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions." [edit] Reasonably practicableWhat is reasonably practicable is a question of fact. The Court of Appeal held in 1949 that:[13][14]
— and:
Where a criminal prosecution arises from a breach of duty and the accused's defence is that it would not have been practicable or reasonably practicable to act otherwise, the burden of proof falls on the defendant (s.40). The prosecution have the burden of showing beyond reasonable doubt that certain acts were done or omitted to provide a prima facie case against the accused. Only if the prosecution succeed in this does the defendant have the burden of proving that the alternative was not practicable or reasonable practicable, but only on the balance of probabilities.[15] The Court of Appeal held in 2002 that this requirement was compliant with article 6(2) of the European Convention on Human Rights (ECHR) as to presumption of innocence. The Court of Appeal noted that the "reverse burden" applied to purely regulatory breaches, rather than genuine criminal offences potentially punishable by imprisonment.[16] However, the Health and Safety (Offences) Bill 2007,[17] seeks to extend the sentences available for these offences to include imprisonment for two years. The Department of Work and Pensions has expressed the opinion that, should the Bill become law, it will still be compliant with the ECHR as it "strikes a fair balance between the fundamental right of the individual and the general interests of the community".[18] In 2005, the European Commission challenged the defence as noncompliant with Directive 89/391/EEC, which states that (Art.5(1) and (4)):
The Commission argued that the reasonably practicable defence was much broader than allowed under the directive but in 2007 the European Court of Justice found for the UK that the defence was in fact compliant.[19] [edit] Development risks defenceSection 6(10) was added by the Consumer Protection Act 1987[20] disapplies duties as to articles and substances used at work where a risk "is shown to be one the occurrence of which could not reasonably be foreseen". This is known as the development risks defence.[21][22] [edit] Health and Safety Commission and Health and Safety Executive Section 10 created two bodies corporate, the Health and Safety Commission and Health and Safety Executive who performed their respective functions on behalf of the Crown (s.10/ Sch.2). The bodies had wide powers to further their objectives by all means other than borrowing money (ss.11(6), 13). On 1 April 2008, the two bodies merged, the aggregate taking the name Health and Safety Executive.[23] [edit] Health and Safety CommissionThe Commission consisted of a chairman and between six and nine other people, appointed by the appropriate Secretary of State, after consultation (s.10(2)-(4)). The Commission's' duties were to (s.11(2)):
The Commission further had to keep the Secretary of State informed of its plans and ensure alignment with the policies of the Secretary of State, giving effect to any directions given to it (s.11(3)). The Secretary of State could give directions to the Commission (s.12). On 1 April 2006, the Commission ceased to have responsibility for railway safety.[24] The Commission could delegate any of its functions to, or otherwise direct, the Executive (s.11(4)) and could direct the Executive to hold a public inquiry or other investigation into any accident (s.14). However, as of 1 April 2008, all its powers and responsibilities were transferred to the Executive. [edit] Health and Safety ExecutiveThe Executive consists of a chairman and between 7 and 11 other people, all appointed by the Secretary of State, as of 2008[update], the Secretary of State for Work and Pensions (Sch.2). Before the 2008 merger, the Executive had to carry out all functions delegated to it, or otherwise directed by, the Commission and provide the Secretary of State with information and expert advice (s.11(5)). The Executive is responsible for enforcement of the Act and regulations made under it though the Secretary of State may transfer some of the duties to local government (s.18). [edit] Health and safety regulationsThe Secretary of State has broad powers to make health and safety regulations (s.15). Breach of regulations can lead to criminal prosecution under section 33. Further, the Commission can issue codes of practice (s.16). Though breach of a code of practice is not in itself a criminal offence it may be evidential towards a criminal breach under the Act (s.17) [edit] EnforcementEnforcement is by the Health and Safety Executive unless its functions have been delegated to local government (s.18). Local government bodies who may be enforcing authorities are:[25]
Local government bodies can be enforcing authorities in respect of several workplaces and activities including offices, shops, retail and wholesale distribution, hotel and catering establishments, petrol filling stations, residential care homes and the leisure industry.[25] As of 2008[update], 410 such bodies have responsibility in 1.1 million workplaces.[26] An enforcing authority may appoint inspectors by a written document detailing their powers and which serves as evidence of their authority (s.19) The enforcing authority may indemnify the inspector against any civil litigation if he has acted in the honest belief that he was within his powers (s.26) [edit] InspectorsPowers of the inspector may include the powers to (s.20):
The Consumer Protection Act 1987 added the power for a customs officer to seize imported goods for up to 48 hours (s.25A). In observance of the principle of a right to silence, answers given to questions that the inspector required a person to answer cannot be used as evidence against him, nor his spouse or civil partner (s.20(7)), neither can the inspector require production of a document protected by legal professional privilege (s.20(8)). [edit] Improvement noticesIf an inspector is of the opinion that a person (s.21):
— he may serve him with an improvement notice:[27]
Appeal against a notice is within 21 days to an employment tribunal who may appoint one or more assessors to sit with them (s.24).[29][28] [edit] Prohibition noticesIf an inspector is of the opinion that activities are being carried on, or are likely to be carried on, involving the risk of serious personal injury, he may serve him with a prohibition notice (s.22):[27]
The notice may start immediately or at the end of a specified period (s.22(4). Appeal against a notice is within 21 days to an employment tribunal who may appoint one or more assessors to sit with them (s.24).[29][28] [edit] ProsecutionSection 33(1) creates 15 criminal offences including breach of a duty under the Act or a regulation, contravention of a notice, or obstructing an inspector. In England and Wales prosecution under the Act could originally only be brought by an inspector or with the permission of the Director of Public Prosecutions but the Environment Agency was also authorised on 1 April 1996 (s.38).[30] All offences under the Act are either summary offences or offences triable either way so inspectors start prosecutions by laying an information before the Magistrates' Court.[31] Inspectors can themselves be authorised to exercise rights of audience before the Magistrates even though not legally qualified (s.39). If a person, by some act or omission, causes another person to commit the actus reus of an offence under the Act then they too are guilty of an offence, even if the other person was not prosecuted or could not be prosecuted because they were the Crown (s.36). Where an offence is committed by a body corporate with the consent or connivance, or by the neglect, of a director, manager, secretary or a member acting in a managerial capacity, that individual too is guilty of an offence (s.37). Where a person is convicted under the Act, the court can order that he remedy the state of affairs or can order forfeiture of an item in question (s.42). [edit] Civil liabilityThere is no civil liability for breach of statutory duty in respect of sections 2 to 8 but there is liability for breach of health and safety regulations unless the regulations themselves provide otherwise (s.47). However, a breach not actionable in itself may be evidential towards a claim for common law negligence. In particular, a criminal conviction may be given in evidence.[32] [edit] Liability of the CrownThe Crown is bound by health and safety regulations and by the Act itself save for (s.48):
— though an employee of the Crown can be criminally liable (s.48(2)). The Act was extended to the police on 1 July 1998 by the Police (Health and Safety) Act 1997 (s.51A).[33] The Secretary of State may, "to the extent that it appears to him requisite or expedient to do so in the interests of the safety of the State or the safe custody of persons lawfully detained" exempt the Crown by Order in Council (s.48(4)). [edit] Other provisionsSections 55 to 60 provide for the continued existence of the Employment Medical Advisory Service in England and Wales. Section 68 is an Henry VIII clause enabling the Secretary of State to amend certain provisions of the Act by Statutory Instrument rather than Act of Parliament. Sections 61 to 76 originally enabled the HSE to create and amend building regulations and gave them other powers over buildings control and approval. These sections were repealed by the Building Act 1984 which replaced them by a general scheme of building regulations. [edit] Territorial extentThe Act originally applied in England and Wales, Scotland (in part) and Northern Ireland (in part) (s.84). Its provisions were re-enacted for Northern Ireland in 1978 with enforcement made the responsibility of the Health and Safety Agency for Northern Ireland.[34] The Agency's name was changed to the Health and Safety Executive for Northern Ireland in 1998.[35] Section 84(3) allowed the Secretary of State to extend, by Order in Council, the provisions outside England, Wales and Scotland. In 1995, the provisions were extended to offshore installations, wells and pipelines in UK territorial waters, mines extending into territorial waters and certain other engineering activities in territorial waters. Activities on a ship under the direction of its master are excluded.[36][37] [edit] Performance of the ActReviewing performance of the Act in 2008 Lord Grocott observed:[38]
[edit] References
[edit] Bibliography
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