<Criminal Law Essays and Dissertations

Health and Safety Act 1974, Occupational Hazards

Extract 1 : Catering for occupational hazards
Extract 2 : Are the Health and Safety Regulations adequate ?

Introduction
The system for the regulation of health and safety before the introduction of the Health and safety act of 1974 was fragmented and very complex. Kevin Williams points out that there were about 9 different statutes, 500 pieces of delegated legislation and 7 different inspectorates controlling the system of health and safety regulation.1 Despite the number of statutes and legislation in force a large proportion of the workforce was still without protection. The Robens report of 1972 proposed a self regulatory regime and the HSA 1974 was brought in to clean up the complex system. A notable feature of the HSA 1974 is that apart from tiding up the law, it also modernised it bringing it into line with the realities of that era, which featured an economy based on the manufacturing industry. The HSA includes general duties on employers and others to secure the rights of the worker in the work place.

Catering for occupational hazards

The HSA 1974 imposes duties on everyone connected with the workplace. Its general purpose is stated in section 1 as the maintenance or improvement of standards of health and safety at work, the protection of other people against risks arising from work activities, and the control of storage and use of dangerous substances and the control of certain emissions into the air.

The duties placed on employers with regards to employees in the workplace are detailed in section 2 of the HSA. The employer has the duty to ensure the health, safety and well being of his employees as far as is reasonably practicable. This duty includes provision to ensure that plants and systems are safe, and that the risk involved in the handling and use of materials and equipment are reduced. In addition section 2 also provides that the employer ensure as far as it is reasonably practicable, that the work environment is safe and free of risks. The employer has to write a statement of its health and safety policies, which should be brought to the notice of all employees, and should also, consult and implement a system of review with regards to he health and safety measures.

Section six of the act deals with the safety of substances and articles for use at work. It places a duty on the employer to ensure that items used at work are designed and constructed to be risk free in terms of health and safety when being used, maintained or cleaned by any person at work. It is also requires that substances are disposed of in a manner which does not pose any health risks. With regard to the duty imposed by this section , the issue of whether or not the risk could be reasonably be foreseen will be considered in determining whether any duty imposed has been breached.

Section 15 of the HSA 1974 includes provisions which empower the secretary of state to make regulations, and repeal or replace them to further the purpose of the legislation. A number of health and safety regulations have been made to this end in response to the needs of the workers in the workplace, and some to incorporate the changes in law made by the EC whose provisions are directly applicable to the UK. .

A The Management of Health and Safety at Work Regulations 1999 2

This regulation increased the protection offered to the employee in the workplace in relation to occupational hazards. It incorporates the Council Directive 89/391/EEC 3 which includes more protection for the health and safety of the worker. In effect this increased the burden on the employer by introducing 'principles of prevention' which call on the employer in Article 6 (2) to

(a) avoid risks
(b) evaluate the risks which cannot be avoided:
(c) combat the risks at source;
(d) adapt the work to the individual, especially as regards the design of work places, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health.
(e) adapt to technical progress;
(f) replace the dangerous by the non-dangerous or the less dangerous;
(g) develop a coherent overall prevention policy which covers technology, organization of work, working conditions, social relationships and the influence of factors related to the working environment;
(h) give collective protective measures priority over individual protective measures;
(i) give appropriate instructions to the workers.

The employer is also required to appoint a competent person to oversee the health and safety system. Employers also lose the right to rely on the default of the worker as a defence for contravening the health and safety regulations. The increased burden on the employer grants the worker more protection with regards to occupational hazards. In Hardman v Mallon4 it was held that the employer's failure to carry out a risk assessment as required by the Management Regulations 1999 Reg. 16 on learning that M was pregnant, amounted to an unlawful act. It was held further that whilst it was the duty of every employer to carry out risk assessments on all employees, the failure to carry out a risk assessment impacted disparately on a pregnant woman, a particularly protected worker, and amounted to discrimination.
Another case that illustrates the care which employers are now obliged to take with regards to employee safety in the workplace is R. v. F. Howe 5 , where principles were laid out with regards to the sentencing of employers in breach of their duties under health and safety regulations. The employer pleaded guilty to four offences under the Health and Safety at Work Act 1974. The facts were that a man was electrocuted. It was alleged that the company had failed to carry out regular checks of the trip device and other safety measures. It was held that the facts of each case should be assessed when determining the fines that would be paid by the offending organisation, for instance deliberately flouting the regulations with a view to profit would seriously aggravate the offence. Other factors would be the extent of the danger caused by the breach, and also whether it was an isolated incident or if the breach was a continuous or repeated one. The large fine of £600,000, upheld in another case with similar facts, R. v Friskies Petcare6 reflects the increased concern over occupational health.

B. The Control of Substances Hazardous to Health Regulations 1999

Another important regulation in this area is the COSHH. As is pointed out in HSE literature, 'hazardous substances used in the workplace can harm employees' health if exposures aren't properly controlled and can add to the unnecessary and preventable burden of ill health. The Self-reported work-related illness survey 1995 indicated that there are 200,000 cases of lower respiratory disease and 66,000 cases of skin disease. In the majority of cases, the ill-health is associated with exposure to chemicals'.7 . This regulation imposes duties on employers to protect employees and other persons who may be exposed to substances hazardous to health, and also imposes certain duties on employees concerning their own protection from such exposure. It increases the protection of the worker by providing that the approval of the Health and Safety Commission is needed with regards to maximum exposure limits for substances. It also requires the employer to provide personal protective equipment which comply with the Personal Protective Equipment (EC Directive) 8

In Dugmore v Swansea NHS Trust , 9 the employee appealed against the dismissal of her claim for damages arising from the consequences of a latex allergy she developed from using powdered latex gloves while working for the Trust as a nurse between 1990 and 1996. The allergy first emerged in about 1994 and it continued to be aggravated by using latex gloves until 1996 when she suffered a serious reaction and needed time off from work. It was held in allowing her appeal that there was an absolute duty in Reg. 7(1) of both the 1988 and 1994 Control of Substance Regulations to ensure that exposure to hazardous substances was prevented or adequately controlled, and the issue of foreseeability of risk was not relevant. The Trust erred in that it failed to adequately control the employee's exposure to latex given that she was often obliged to wear latex gloves when other types of gloves could have been supplied. The Trust had either failed to have knowledge of the risk of allergic reaction to latex gloves or had underestimated the risk and taken no precautions against it. Accordingly the Trust had breached Reg. 7(1) of the 1988 and 1994 regulations.

The Bilton v Fastnet Highlands 10 Ltd indicated the strong protection that would be given to a worker endangered at work In this case the Employee developed occupational asthma as a result of her exposure to 'respirable prawn protein' and other substances which are classed as hazardous by the act. The employer was in breach of Regulation 7 of the COSHH 1988 (which has bow been repealed). It was held that the onus was on the employer to show that it had complied with the regulations in fulfilment of its statutory duty . The fact that the employee might not have taken steps to avert the danger to herself did not matter. This burden is very strict and visibly leans in favour of the worker.

C. The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995

Regulation consolidates various pieces of legislation, and upholds a requirement that the responsible person must notify, and send a report to, the Health and Safety Executive or, the local authority of fatal and certain non-fatal accidents arising out of or in connection with work, of certain specified diseases contracted at work and of certain specified dangerous occurrences.

The regulation makes a significant step by including acts of violence done to persons at work and acts of suicide on transport systems. The scope of the occurrences which must be recorded has been widened, and now includes for instance mines and quarries and offshore work places. It appears that there are not many reported cases in this area relating to workers in the workplace.

D. The Manual Handling Operations Regulations 1992

This regulation provides for minimum health and safety requirements for the manual handling of loads, especially where there is a possibility of back injury. It gives effect to the Council Directive 90/269/EEC 11. The directive provides that the employer take appropriate organizational measures, or use appropriate means, in particular mechanical equipment, in order to avoid the need for the lifting , pulling , pushing etc of goods by workers. It also provides that when manual handling can not be avoided, the employer should take the appropriate organizational measures, or provide workers with such tools / means in order to reduce the risk involved in the manual handling of such loads.

The regulation also includes safeguards for the employee by requiring the employer to give the worker specific information about the load to be lifted , for instance its weight and its centre of gravity. The employer must also ensure that the worker receives proper training and information on how to handle loads correctly and the risks they might be open to particularly if these tasks are not performed correctly. l12

In Knott v Newham Healthcare NHS Trust13 , a nurse brought a claim against the Trust for damages for a back injury. It was found that the injury resulted from the manual handling of patients without the appropriate training, equipment and assistance and, in particular, from lifting a long term brain injured patient several times in one day. It was held in favour of the nurse, that the lifting equipment provided by the Trust was inadequate to protect staff from injury when lifting patients. In addition, the Trust failed to make a proper assessment of the risk of injury and it did not take steps to reduce that risk. Accordingly, the Trust was in breach of the Manual Handling Operations Regulations 1992 Regulation 4. The absence of mechanical lifting aids meant that staff resorted to manual methods which carried an inherent and well publicised risk of injury.

In another case Kerr v North Ayrshire Council 14
The employee raised an action for damages against employer in respect of a back injury sustained at work. It was claimed that the employer had breached their statutory duties under the Manual Handling Operations Regulations 1992 Regulation 4 , and their common law duty to provide a safe system of work. The employee's duties involved setting out tables and chairs for various functions which took place at the hall where she was employed. The method for moving the tables had remained unchanged between 1989, when the she was hired, and the date of the accident. She had not been given any specific training in how to manoeuvre and lift tables and had never been told that she was handling them incorrectly. She argued that the lack of training and the system of storing tables vertically rather than horizontally had resulted in her accident. The employer maintained that there was no evidence to suggest that training would have made any practical difference. They argued that the tables in question were lightweight, portable and designed to be moved by one person and the system of always having one corner on the floor resulted in the load being reduced by half. Although the employee did not win in this instance, an important point of law was settled in the obiter. The employer's argument/ assumption that her length of service and experience as a caretaker in handling the tables was sufficient in terms of the Regulations were not valid. If the employer had flouted the health and safety regulations they would be held accountable irrespective of the experience of employees or how settled the work practices were. This is a significant protection for employees with regards to occupational hazards as their expertise / knowledge is not detrimental to their claim where the employer is found to be in breach.

E. Display Screen Equipment Regulations 1992

This regulation governs protection in relation to the use of display screen equipment in the workplace. It gives effect to Council Directive 90/270/EEC 15, which requires minimum health and safety standards for work with display screen equipment. The directive provides that the employer must keep the employee informed on all aspects of safety and health relating to their workstation. In addition, every worker should also receive training in use of the workstation before commencing this type of work and whenever the organization of the workstation is substantially modified. The directive also places a burden on the employer to plan the employees work in such a way that daily work on a display screen is periodically interrupted by breaks or changes of activity reducing the workload at the display screen. The legislation also includes provisions to ensure the protection of the workers eyesight.

One of the cases that has been considered in the light of this regulation is McPherson v Camden LBC16 The employee claimed that she developed 'De Quervain's stenosing tenosynovitis' as a result of her excessive use of the computer keyboard in the period from June 1993 to January 1994 when she was advised by her employer's occupational health department to cease all keyboard work. She was subsequently made to retire on the ground of ill health. She made a claim under the Health and Safety (Display Screen Equipment) Regulations 1992, as the employer had failed to advise her on the correct usage of the keyboard and failed to carry out an assessment of her usage of the keyboard. It was held that her condition could be a result of keyboard usage. Although her use of the keyboard might not have been the sole cause of the condition, the length of time that she spent at her keyboard and the nature of that use were material factors in the onset and deterioration of her condition. If she had been advised to limit her keyboard usage in specific ways, her prospects of developing the condition would have been significantly reduced. The employers were in breach of their duty of care by failing to carry out a statutory assessment and by failing to advise her of ways in which the risk of injury might be reduced such as taking breaks or altering her patterns of work.

F. Control of Asbestos at Work Regulations 2002

This legislation builds on the previous asbestos legislation of 1987. The Regulations impose requirements for the protection of employees who might be exposed to asbestos at work and of other people who might be affected by such work and also imposed certain duties on employees concerning their own protection from exposure. It gives effect to various pieces of E.C directive governing asbestos protection. A duty to manage asbestos in commercial premises is introduced and the manager of the premises has to pass on information on the location and condition of the relevant material to those likely to be affected by them. The employer also has to develop a system to provide information, develop a warning system and deal with emergencies relating to asbestos. Significantly the employer has also acquired a burden with regards to health records and medical surveillance where an employee is found to have an identifiable disease or adverse health effect caused by exposure to asbestos at work.

Even where the work in question is not directly related to the use of asbestos, the courts have exhibited a strong desire to offer protection the worker. In Shell Tankers UK Ltd v Jeromson17 the employer denied liability for the death of two employees who had contracted 'mesothelioma' following prolonged exposure to asbestos. The employer argued that it had not been negligent in failing to take precautions to protect the employees against exposure to asbestos, given the limited knowledge available as to the risk of harm arising from the limited level of exposure. They also claimed that they were not in breach since the regulations applied only to the "asbestos industry" and C's use of asbestos had been merely incidental to its business.

G. The Noise at Work Regulations 1989

The Noise Regulations provide protection for the worker with regards to the risks related to exposure to noise at work. The regulations mean that the employer has to reduce the risk of damage to the hearing of their employees. Employers are required to provide ear protectors and to provide information by marking out ear protection zones. There is also an obligation to instruct and train employees with regards to the dangers of noise and the proper use of equipment and protection. In addition employers have to assess and review noise, and keep records of the assessments and reviews.

In Jeffrey v CMB Speciality Packaging18 the worker was exposed to high levels of noise in a factory where he was employed as storekeeper. In 1969, he first began to experience problems but instituted proceedings for industrial deafness only in 1993. It was found that his hearing damage was attributable to his working environment. Despite the expiry of the limitation period the employee was allowed to proceed with his claim, regard being given to the fact that his employers took no physical steps to protect their employees' hearing, or provide any form of warning.

  1. Kevin Williams , 'Deregulating Occupational Health and safety' [1995] I.L.J Vol 24, page 133[^ Return]
  2. Statutory Instrument 1999 No. 3242[^ Return]
  3. OJ No L 183, 29.6.89, p.1[^ Return]
  4. Hardman v Mallon (t/a Orchard Lodge Nursing Home), [2002] 2 C.M.L.R. 59[^ Return]
  5. [1999] 2 Cr. App. R.(S.)[^ Return]
  6. [2000] 2 Cr. App. R. (S.) 401[^ Return]
  7. 'Preventing or controlling exposure to hazardous substances at work', www.hse.gov.uk [^ Return]
  8. Regulations (regulation 7(5)[^ Return]
  9. [2003] P.I.Q.R. P15[^ Return]
  10. 1998 S.L.T. 1323[^ Return]
  11. Official Journal L 156 , 21/06/1990 P. 0009 - 0013[^ Return]
  12. Article 6 of RIDDOR[^ Return]
  13. 2002 WL 31257263[^ Return]
  14. 2002 Rep. L.R. 35[^ Return]
  15. OJ No. L156, 21.6.90, p.14[^ Return]
  16. 1999 WL 819068[^ Return]
  17. [2001] I.C.R. 1223[^ Return]
  18. [2000] C.P. Rep. 1[^ Return]

Bibliography

Barrett, B, Trends in Occupational Health and Safety [1994] Industrial Law Journal Vol. 23 pp. 60-64

Holgate, G, Workplace Health and Safety: Challenging Regulatory Standards, [1994] Industrial Law Journal Vol 23 pp 246-252

Williams, K, Deregulation Occupational Health & Safety [1995] I.L.J Vol 24 pp 133-140

Wright, F,B Law of Health and Safety at Work , Sweet & Maxwell, 1997 pp 111-174

Gunningham and Johnstone , Regulating Work Safety , 1999 , Oxford University Press.

Michael Gerrard , 'old wounds -- in April, the House of Lords will weigh up the rights of asbestos sufferers to claim compensation -- this debate will reverberate throughout the PI world', Law Society Gazette Vol 99 No 09 p 22

Extract 1 : Catering for occupational hazards
Extract 2 : Are the Health and Safety Regulations adequate ?

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