Responsibilities Under the Health and Safety at Work Act

Responsibilities Under the wellness and Safety at turn tail arrangeSTUDENT NAME IP OGOLOINTRODUCTIONThe purpose of this concession is to comp ar and contrast the responsibilities imposed by the duties downstairs departments 2,3,4,7 and 8 of the Health and Safety at Work Act 1974. This would be achieved by critic all(prenominal)y analysing different causa right, the Health and Safety at Work Act and other relevant literature. In this assignment, the interpretation of various invents and phrases in the above menti angiotensin converting enzymed elements of the Health and Safety at Work Act 1974 would be looked at and the elements of convictions would to a fault be analysed.OVERVIEW OF personaS 2,3 AND 4SECTION 2 OF THE HASAWA 1974 particle 2 of the Health and Safety at Work Act (HASAWA) 1974, imposes duties on the employer towards his employees. Section 2(1), states that it shall be the craft of every employer to retard so distant as is reasonably reportable the welln ess, arcticty and welf ar at bestow of all its employees. The names wellness, preventative and welfargon are non understandably checkd (Moore and Selwyn 2015) in the HASAWA 1974 however health includes both mental and natural health. Safety confer withs to the absence of predictable in get over board while welfare boots to water, lighting, bum facilities, cloakroom, canteen etceterateraThis duty is imposed on every employer irrespective of the size of the communication channel or organisation, to ensure that much(prenominal)(prenominal) hightail itplace is steady-going set asided it is reasonably viable for such employer to make it unhurt. The duties imposed by the HASAWA 1974 do non exempt employers of small businesses and the further defence from employers would be commonsense practicability. For usage, an off-license shop employer who only has two part-time employees must as well play along with the duties of the employer to ensure the health, guard duty and welfare of its part-time employees. Section 2(1) also include welfare unlike other partitions of the HASAWA 1974 which only focus on health and rubber. This promoter that employers hasten a duty to offer welfare facilities such as toilets, change room, eating area, adequate ventilation, adequate lighting, etc.The only defence for small business employers or any other employer who is non-compliant with these duties is the reasonably practicability of such health and natural rubber measures. Reasonably practicability is single of those depicted objects of debate. Reasonable practicable depends on a round of situationors which are employ to study if it was reasonably practicable for the progress to to be safe or non. These factors are weighed on a scale which measures the essays versus the sacrifices which the employer has to make in hostelry to comply with the duties. These sacrifices could be ( Matthews and Ageros 2016) time, money, man-power or the effort/ acquaintance available to perish or mitigate those health and safety lay on the lines.An example of a oddball law where so far as is reasonably practicable vie a significant use of goods and portions in the judgement is in Edwards v National Coal Board 1949 1 ALL ER 743, where a timberman who worked in a coalmine was killed by the collapse of the side walls of the road in the course of his work. The National Coal Board was defecaten to dally and they argued that it was non reasonably practicable for them to start prevented the happening. They contended that it was not possible for them to predict where and when a collapse would occur, and the live labour and effort in propping and lining all their mines outweigh the bump.Reasonably practicability ( Moore and Selwyn 2015) varies in each prosecution and it is a question of fact and evidence this depends on the employer having sufficient evidence to study that everything reasonably practicable was done to make the workpl ace safe . Therefore, what energy be reasonably practicable for bon ton A whitethorn not inevitably be reasonably practicable for caller-out B frame of reference 1 (Reasonably practicable) Sub portion 2(2) of the HASAWA 1974 states that it is the duty of the employer to ensure that plants are well maintain and safe clays of work are available so far as is reasonably practicable.Safe systems of work (Moore and Selwyn 2015) for plants can only be provided by an employer if the plant is located in a place where the employer has control all all over it and can give clear directions and procedures on how it should be utilize. Plants should be on a regular basis maintained and efficient at all times in regularise to comply with the duties under sub region 2(2)(a). The maintenance (Moore and Selwyn 2015) of plants is a matter of foresight. The employer could break planned routine checks by fitted somebodys or monitoring broadcast in place to meet the sine qua nons of this co nstituent.In section 2(2) the employer also has a duty to provide breeding, teach, instruction and supervision to its employees. The information (Moore and Selwyn 2015) which is provided must be accurate and consequenceful and also extends to contractors where necessary to ensure safety. In intimately cuticles, employers use induction training as one of the modal values to provide information to its employees. Some employers use toolbox talks and organised in-house training as nub of conveying health and safety related information to their employees. Any employer who does not provide adequate supervision to its employees would be in better of this section.Section 2 (3)-(7) imposes duties on the employer to provide and revise health and safety policy and also have safety representatives and safety committees depending on the size of the organisation.An example of a prosecution under section 2(3) is Osborne v Bill Taylor of Huyton Ltd 1982 ICR 168. This demote was (Barret and Howells 1995) a failure to prepare an adequate create verbally health and safety policy. The club carried out betting business in thirty-one separate betting shops connected by a rudimentary accounting system, management training program etc. The judge close in this case was that the beau monde was not in shift of section 2(3) because it had less than five employees for the time cosmos. In my opinion, I would disagree with the decide decision because the fact that the betting shops are centrally controlled means that it is one single working class, taking place in several locations and the total result of employees should be nearly ninety-three (93), see below for details- = 93 employeesFigure 2And at that placefore, should have been make bloodguilty for a cave in of section 2(3) because more than five employees were involveing a single parturiency in various locations.2.2. SECTION 3 OF THE HASAWA 1974Section 3 of the HASAWA 1974 covers the oecumenical duties of employers and mercenary(a) to the public/ other people not employed by them. It states that it is the duty of every employer to conduct its undertaking in such a way to ensure so far as is reasonably practicable that persons not in his employment are not undecided to health and safety risks.(The Health and Safety at Work etc. Act, 1974) Lays emphasis in subsection 3(3) that the employer and self employed persons must give information about the hazards and risks associated with the conduct of its undertaking to those who may be affected by the conduct of his undertaking in a official means. This basically means that in some cases, it would be necessary for the employer or self employed persons to provide information which could be in the form of mailed newsletters, letter or formal visits to those who may be affected by the conduct of their undertaking to provide the necessary information about the areas in which these people may be affected and ship canal to reduce delineation for the benefit of their health and safety. For example, before a look project commences, the neighbouring community inescapably to be aware of the health and safety risks such as noise, moving plants and strenuous duty vehicles, etc in order for both parties to agree on ways to reduce their exposure.In section 3, the phrase reasonably practicable has been apply which means that the employer or self employed persons need to weigh the risks versus the cost to determine if it is reasonably practicable for these safety measures to be in place. Additionally, this section refers to the word inflict which to my understanding means a specified manner in which the information has to be presented to those who may be affected by the conduct of the employers or self-employed persons undertaking. One of the most common prescribed ways in which such information may be conveyed is by means of induction training for visitors.In this section, the word risk has been used which means (Moore and Selwyn 2015) the possibility of danger and not actual danger. The HASAWA 1974 does not state that an employer needs to wait for an throw to occur before measures and procedures would be in place. It states that provided on that point is a possibility of danger or blur, so it is the duty of the employer to both eliminate or mitigate such hazards.Another key word used in section 3 is undertaking which means (Moore and Selwyn 2015) business, work activities, enterprise etc. For instance, if company A gives a contract to company B (Brick-layer) who lays bricks in company As site, then the layering of bricks forms part of company As undertaking. However, the question of how frequently control the employer has (Moore and Selwyn 2015) over the operation as part of his undertaking could make it difficult in any condemnable conviction. For example, if Company B decides to lay the bricks outside company As construction site, then company A may not have much control over how the br icklayers decide to lay those bricks with regards to health and safety. Some case law examples referring to undertaking are R v Swan huntsman Shipbuilders Ltd 1981 ICR 831 and R v Mara 1986 IRLR 154, which would be discussed later in the assignment.It is weighty to degrade that an employer (Moore and Selwyn 2015) may still be conducting his undertaking even though the business is unsympathetic. For example, a food factory may be closed but the cleaning and maintenance of machinery may still be taking place which would still form part of the employers undertaking.2.3.SECTION 4This section states the general duties of persons concerned with expound to persons other than their employees. It imposes duties on people such as landlords, security officers, estate agents etc. who have (Moore and Selwyn 2015) control over non-domestic set forth or the means of access (such as doors, stairs, lift etc) or exit or any plant or substances which are used by non-employees as a place of work, to ensure that such areas or plants are safe so far as is reasonably practicable.It is important to note that residential premise are clearly domestic set forth except the communal areas such as lifts, stairs, main door etc. which could be used as access for persons such as handyman, repairers, plumber, electricians, etc. as a place of work.The phrase reasonably practicable has also been used in this section of the Act. When a person makes (Moore and Selwyn 2015) available premise for the use of others, the cleanness of the measures taken to ensure safety must be determined in the light of the controllers knowledge of the anticipated use of those premises and his knowledge of the actual use. For example, if a Landlord rents out offices to businesses, the landlord needs to know the range of a function of these businesses in order to put certain safety measures in place.This means that the level-headedness of such safety measures (Moore and Selwyn 2015) would be weighed against the controllers knowledge, the finances and effort it would take for such hazard to be eliminated or mitigated. For instance, an uneducated landlord who owns business premises may have the finances but may not have the knowledge or effort in ensuring that such premises is safe however evidence is needed to this defence of reasonably practicability.It is important to note that the duties (Moore and Selwyn 2015) under section 4 are not limited to persons who are at work. Section 4(1)(a) states that these duties are in relation to non-employees, which would harbor the general public including children. For example, a person who controls childrens play centres, libraries, schools etc would still have a duty to ensure that such premises are safe and without risks to those who may be affected by the conduct of their undertaking.A case law example under a breach of section 4 is Mailer v Austin Rover Group Plc 1989 2 ALL ER 1087, where an employee of a contractor was killed while working for Austin Rover. Austin Rover was super charged for a breach of section 4 because it had total control of the premises and could have taken measures to prevent such fatality.Another example of a prosecution under section 4 is the case of Westminster City Council versus deal Management Ltd 1984 1 ALL ER 994. This company managed blocks of flats in capital of the United Kingdom and had control of the common areas such as lifts, staircase, and landings etc and failed to ensure that the lifts and electrical installations were safe and without risk to health and safety.SIMILARITIES AND DIFFERENCE BETWEEN SECTIONS 2, 3 AND 4 2.4.1 Sections 2 and 3 refer to the duties of the employer either towards their employees or non-employees. The employer has an obligation to ensure that the workplace is safe. Non-employers would be exempted from the duties under sections 2 and 3. Additionally, sections 2 and 3 create lamentable offences for the employer if not complied with (R v tangerine tree confectionery Ltd 2011 EWCA Crim 2015).A case law example is R versus Swan Hunter Shipbuilders 1981 ICR 831, where these companies were charged for breaching sections 2 and 3 of the HASAWA 1974. On the 25th of September 1976, a welder (an employee of Telemeter) went into a small compartment in the deck where a fire started the moment he started welding. The question that was elevated (Barrett and Howells 1995) was whether the duties imposed on Swan hunter under sections 2 and 3 include to provide the employees of sub-contractors with information about the dangers of oxygen enriched atmosphere and second with instructions to ensure that safety of the workers on board, including the employees of Swan hunters and Telemeter.Figure 3From the above diagram the relationship among Swan hunter and Telemeters is colossal and the jury made emphasis that the duties under section 2 and 3 are wide copious to cover providing information and instruction to contractors and subcontractors as well .The precedent that was established in the above case law is the meaning of the phrase conduct of its undertaking in relation to the duties imposed on the employer in section 3 of the HASAWA 1974. With regards to undertaking, the welding job done by Telemeter was part of Swan hunters undertaking and on that pointfore, failed to ensure the health and safety of persons not in its employment.Furthermore, section 2 is concerned with ensuring safety and section 3 is concerned with ensuring an absence of safety (Matthews and Ageros 2016) which mean the same thing.The level of safety in the workplace would be determined by what is reasonably foreseeable by the employer. Reasonably foreseeability is an important element in managing risks in the workplace.An example of a case law where foreseeability of risks played an important role in the judgement is R versus Tangerine confectionery Ltd 2011 EWCA Crim 2015. In this case, the defendant was charged in breach of section 2 of HASAWA 1974 be cause an operator of machinery was upset to finis by a WD machine used in manufacturing sweets. The judge in R v Tangerine Confectionery Ltd 2011 EWCA Crim 2015 stated, Safety must be judged by what might be reasonably foreseen by a reasonable and prudent employer.The defendant stated that the accident was not foreseeable. The foreseeability of risk (R v Tangerine Confectionery Ltd 2011 EWCA Crim 2015) is only reasonably practicable if a reasonable person can foresee a temporal risk which is created by a plant, machinery or work-related activity. In this case, the foreseeability of an injury occurring with the use of the WD machine was obvious. However, the jury had no evidence that (R v Tangerine Confectionery Ltd 2011 EWCA Crim 2015) the foreseeability of the risks of this machine caused the accident because the machine had been used for thousands of hours without any accidents. Irrespective of the lack of evidence on foreseeability, the jury concluded that there was a foreseea ble possibility that person might get entangled in the arms of this machine (R v Tangerine Confectionery Ltd 2011 EWCA Crim 2015).The precedent that was established in the above case is the meaning of foreseeable risk. The risk has to be a real risk which a reasonable person can foresee to be a source of danger. Foreseeability of risks is relevant to the question whether a material risk to safety exists. That is why a risk judging is an exercise in foresight. Sections 2 and 3 impose a duty on employers to ensure an absence of safety (R v Tangerine Confectionery Ltd 2011 EWCA Crim 2015) which makes them think deliberately about risks which are both obvious and not obvious. If an employer does not have the knowledge to enable him/her foresee risks, then it is his/her responsibility to employ a competent person such as a health and safety advisor to assist him in conducting an adequate risk assessment.Another example of a prosecution where foreseeability influenced the judgement is Regina v Pyranha Mouldings Ltd 2014 EWCA Crim 533. Pyranha Mouldings Ltd was prosecuted for a breach of section 2(1) of the HASAWA 1974 collectible to an incident which occurred on the 2nd of March 2011. This company manufactured tractile Kayaks and canoes which were shipped in shipping containers. On this particular day, the loader/ banksman Mark Malcom was crushed against the roof of container because the forklift device driver could not see him.This company was prosecuted because the insecure system of work had existed for over eighteen years without any risk assessment and lack of supervision of work. The jury stated that (R v Pyranha Mouldings Ltd 2014 EWCA Crim 533) the risk of sincere injury or death was substantial and foreseeable but the company did nothing about it. The foreseeability in this case played an important role in the judgement and the elements of conviction for a breach of section 2(1) are that Pyranha mouldings was the employer of Mr Malcom (the injured wo rker) and the employer also failed to ensure the health, safety and welfare of Mr Malcom and other employees including the forklift driver Mr Kevin.The incubus of proof rests on Pyranha Mouldings to show the Jury that it took all reasonably practicable stairs to keep the workplace safe, which it failed to do therefore was guilty of the offence under section 2(1) of the HASAWA 1974 .Another similarity surrounded by sections 2 and 3 is that the duties (Matthews and Ageros 2016) imposed are personal and cannot be delegated. The employer and self-employed have full responsibility to ensure health and safety and have no defence that the duties were delegated to a member of staff who failed to ensure compliance.The difference between sections 2 and 3 (R v Tangerine Confectionery 2011 EWCA Crim 2015) is on the person to whom the obligation is owed. Section 2 creates an obligation towards employees while section 3 is towards non-employees or the general public who may be affected by that employers undertaking/ job activities.An example of a case law is Veola ES v The Queen 2011 EWCA Crim 2015), a refuse collection company that was sentenced for a breach of sections 2 and 3 of the HASAWA 1974. In this case, an employee Mr Griffiths was killed on a strong dual carriage way while collecting litter. The defendant argued that the accident had nothing to do with the operation of the defendants undertaking. The appeal was dismissed because the court did not have to prove causation of the accident. Causation of the accident (R v Tangerine Confectionery 2011 EWCA Crim 2015) was a matter of evidence but not an inhering ingredient of the offence. An accident is enough evidence that a material risk existed and his employees health, safety and welfare were not ensured. Under sections 3 of the HASAWA 1974, it was the conduct of the defendants undertaking of litter collection which exposed the defendants non-employees to the accident (R v Tangerine Confectionery 2011 EWCA Crim 2015).Another similarity between sections 2, 3 and 4 is that the phrase so far as is reasonably practicable is being used, which means that these duties are not absolute. This phrase gives those obliged to fulfil their duties the freedom to weigh the risks versus the cost, in order to ensure that the workplace or premises is safe. What is reasonably practicable depends (R v Tangerine Confectionery 2011 EWCA Crim 2015) on degree of foreseeable risk of injury, the gravity of the injury if it occurs and the implications of the measures/ methods in countermanding it. An offence is committed under section 2 if the defendant cannot prove that all reasonably practicable steps have been taken to ensure that its employees are safe in the workplace. go under section 3, an offence is committed if there is a material risk to the health and safety of non-employees (R v Tangerine Confectionery 2011 EWCA Crim 2015) who may be affected by the employers undertaking and the defendant has not taken such steps as are reasonably practicable to avoid those risks.Under section 4, an offence is committed if the person in control of premises so far as is reasonably practicable has not ensured that such premises is safe and without risks to the health and safety of those who might be affected.Another similarity between sections 2 and 3 is that they both refer to the phrase in such cases as may be prescribed and in a prescribed circumstance and prescribed manner which gives an characteristic that the responsible person based on the line would fulfil these duties in a particular way.Section 3 and 4 refer to the word undertaking. In section 3 the employer needs to ensure the health and safety of non-employees who may be affected by any risks arising from his work activities. Subsections 4(4) refers to the controllers business activities or undertaking which means that any work activity connected with such controller of premises need to be done in a safe manner.Sections 2(2)(d) and 4 have similarities, in that they both refer to the provision of safe access and exit from work premises, provided it is reasonably practicable to do it. These sections also refer to the extent of control which the employer or controller of such premises has. For example in the Swan Hunter Shipbuilders 1981 ICR 831 case, the issue of control was also raised. Another case example (Barret and Howells 1995) is that of Westminster City Council v Select Management Ltd 1985, where the appellant was in breach of section 4 of the HASAWA 1974 because it failed to ensure that the communal areas of a block of flats were safe.Subsection 2(2)(a) imposes duties on the employer to ensure that plants are safe and without risks to (Barret and Howells 1995) employees, which is similar to those duties under sections 4(2).ELEMENTS OF AN OFFENCE OF BREACHING THE DUTIES UNDER SECTION 2In order for the jury to convict an employer for a breach of sections 2(1) the following elements would need to be proven ( Matthews and Ageros 2016)That the defendant was at the material time an employerThat the defendant failed to ensure the health, safety and welfare of its employees at work. A failure to ensure health and safety occurs when there is an exposure to a material risk to health and safety. The employee (Matthews and Ageros 2016) has to be at work for this to be relevant. This means that when the business is shut or closed for the day and there is no one at work then it is not applicable because no employees are exposed (Matthews and Ageros 2016).The employer would be guilty of a breach of section 2(1) unless it can prove that it was not reasonably practicable to minimize or eliminate the risk to the health, safety and welfare of its employees. Satisfying the test of reasonably practicability (Barret and Howells 1995) involves placing the risk on one scale and the sacrifices pertain in taking the necessary measures for eliminating or mitigating the risk ( time, money, effort etc) being placed on the other scale.ELEMENTS OF AN OFFENCE OF BREACHING THE DUTIES UNDER SECTION 3In order for an employer to be convicted for a breach of section 3(1) the burden of proof rests on the prosecuting officer to show the following (Barret and Howells 1995)That the defendant at the material time was an employerThat the defendant failed to conduct its undertaking in such a way as to ensure (Barret and Howells 1995) that persons not employed by the defendant who might be affected thereby were not exposed to material risks to their health and safety.AREAS OF CONTROVERSIES AND DIFFERENT INTERPRETATIONS OF THE DUTIES Some words and phrases relating to the duties under sections 2, 3 and 4 have been interpreted differently by different judges and have also created controversies in the court of law.Firstly, the HASAWA 1974 does not directly define the word employer but defines an employee to be someone who works under a contract of employment. Thus, an employer is a person who employs an employee. Therefore, if a person has no employees he/she is not an employer and does not owe a duty under section 3(1) but could be prosecuted under section 3(2) as a self-employed person. The fact that the act does not clearly define the word employer creates equivocalness in the court where someone may be regarded as an employer but no compose contract of employment exists between such employer and the employee. This also creates another issue between the contract of employment and contract of service. For example, a small business may have a contract of service with a self-employed cleaner to clean their premises on a daily basis, but there is no contract of employment between them. Would the jury regard such a cleaner as an employee or a contractor? And would the employer still owe a duty under section 2? These questions could only be answered based on the situation and evidence.Moreover, there are companies which employ nobody under a written contract of service but engage a s ignificant number of self-employed workers. In this case, a prosecution of such a company may be undertaken for a breach of sections 2(1) or sections 3(1) with the company so-called to be an employer (Matthews and Ageros 2016) through the extent of its control over those performing the work .For example, R versus Swan Hunter shipbuilder 1981 ICR 831 case.Another area of line of reasoning under these duties is with the phrase exposed to risks to health and safety. It is important to note that an exposure to health and safety risks (Matthews and Ageros 2016) occurs where there is a possibility of danger and this does not require the danger to have occurred or any dangerous occurrence to have come to pass. In some prosecutions, the prosecutors argued that an accident or injury is sufficient evidence to prove that a material risk exists in the workplace.An example of a prosecution relating to this phrase (Barret and Howells 1995) is the case of R v Board of Trustees of the Science Mus eum1993 3 All ER 853 ,where the museum was in breach of section 3(1) because two of its cooling towers could possibly be containing legionella Pneumophila bacterium. The prosecutor stated (Barret and Howells 1995) that they did not have to prove that the members of the public actually inhaled the bacteria and that the word risk means the possibility of danger and not necessarily actual danger.Even where an injury has occurred, it may not be enough for the prosecutor to simply claim that the injury demonstrates that there was a risk. Where a prosecution is brought under section 3(1), it may be necessary to recognise and prove the respects (Matthews and Ageros 2016) in which the injured person was liable to be affected by the way the defendant conducted its undertaking.Furthermore, could an employer be prosecuted under section 2 when no employee is at work? This is an area where prosecutors have debated over.For example, Bolton metropolitan Borough Council versus Malrod Insulations Ltd 1993 ICR 358, where the prosecutor appealed on allegations made against an asbestos removal company called Malrod Insulations Ltd. This company was undertake to strip asbestos insulation from the premises of Ingesoll Rand Ltd. On the 21st of November 1989, the premises were inspected by the environmental health services of Bolton metropolitan Borough council.During this inspection, there were no employees at work and it was evident that the asbestos decontamination plant had electrical defects. The prosecutor took (Barret and Howells 1995) this case to court but at the end of the case, the recorder upheld a submission that there was no case to answer because in order for Malrod Insulations Ltd to be found guilty of the offence under section 2 of the HASAWA 1974, its employees had to be at work.The appellant argued (Barret and Howells 1995) that it is not the fact of men being at work while in the course of employment which creates the offence, but the HASAWA 1974 must protect t he employees who would come to work the next day.In the above case, the interpretation of the employers duties seems ambiguous. In my opinion, section 2(1) states that the employer should ensure the health, safety and welfare of its employees at work and then section 2(2) lays down examples of how these duties can be carried out. However, (Moore and Selwyn 2015) it begins with the sentence without prejudice to the generalization of the duties under the preceding subsection. Subsection 2(2)(a) states that the provision of safe plants is a requirement irrespective of whether or not employees are at work. Referring to the above case, the fact that such unsafe asbestos decontamination plant is within the place of work increases its likelihood of been used when workers resume work the following day. The employer could argue that such unsafe plants would undergo repairs before anyone is permitted to use the