Module 4:

Understanding your responsibilities

Key learning points
1. What does the law require you to do?
2. How does the law work?
3. What are the key parts of a health and safety management system?

Notes:

What does the law require you to do?

OK, so you know as a manager you have health and safety responsibilities – but what
should you worry about, how far should you go, what’s the best way to do it, when do
you stop and what‘s there to guide you?

The minimum you need to do is to comply with the law, as

the law sets the boundaries within which companies must
operate. However, from what you’ve seen and heard so far,
you’ll realise that there are many benefits to your business
from managing safely.

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As a manager, you need to assess ‘reasonably foreseeable’ risks and put in place
control measures to reduce the risks so far as is reasonably practicable.

Reasonable foreseeability – being responsible for

everything that is foreseeable would be a burdensome task.
Instead the law tries to be fair by requiring you to be
responsible only for reasonably foreseeable risks. For
example, if you see a trailing cable across a doorway you
know that there’s a high risk that someone will trip over it.

In summary, an employer must be able to demonstrate reasonable foreseeability of

significant risks covered by tests 1 and 2 but they would rarely face an expectation under
test 3, unless they were an expert.

Employers aren’t responsible for issues they can successfully argue as ‘not reasonably
foreseeable’, but are responsible where reasonable foreseeability can be argued.

To help you further, there are three tests you can apply:

1. Common knowledge

You’re expected to foresee what the average person

in the street would have foreseen, as that
information is common knowledge. For example, if
the public would have known that working on a roof
in a gale without anything to stop a fall was
dangerous, then so should the employer.

2. Industry knowledge

If a safety issue is beyond public knowledge,

your company is expected to have the same level
of background knowledge as other companies
working in the same industry.

For example, if a company was using a chemical and didn’t realise how dangerous it was,
but the rest of the industry had realised for years, and had introduced control measures
or had replaced it with an alternative, the employer wouldn’t be able to argue against
reasonable foreseeability.

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3. Expert knowledge

Only if you’re an expert are you expected to have expert

knowledge. For example, a research chemist would quite
reasonably be expected to understand all the different
properties of the substances they were handling, even if
some risks were peculiar to the substance in very
specific circumstances, beyond normal use.

Consider the jobs you and your team do at work that give rise to reasonably
foreseeable concerns. Those are the ones you need to act on.

Reasonable practicability – we’ve already covered this

in Module 3 but just to recap, this means that if the cost
– in terms of time, effort, money or inconvenience –
associated with the risk control outweighs the benefits of
the risk reduction, then it’s not ‘reasonably practicable’ to
use that risk control.

Notes:

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Case study – Burns v Joseph Terry & Sons Ltd (1950)

Mr Burns was a keen and enthusiastic young employee at Terry’s chocolate factory.
His job was to feed sacks of cocoa beans into a machine and to collect up any that fell
on the ground.

He noticed that, somehow, some beans had found their way up onto a shelf. The shelf
was too high to reach so he got a ladder. There was no place to rest the top of the
ladder so he chose to rest it on a slowly revolving shaft. At the end of the shaft, not far
from the ladder, were some cogs. These cogs were well fenced in from the front. They
were not fenced on top or on the sides because it wasn’t expected that anyone would
get up there. There was simply no way, other than resting a ladder on the revolving
shaft, that anyone could get up there.

While up the ladder clearing the beans from the shelf, Mr Burns felt the ladder start to
slip on the revolving shaft. He reached out for support and took hold of one of the cogs.
This pulled his hand into the mechanism and crushed it. He tried to claim damages for
breach of statutory duty arising from the company’s failure to ‘securely fence’ the
dangerous parts of this transmission machinery.

It was decided that the expression ‘securely fenced’ means well fenced from all
foreseeable risks. The test is whether a reasonable person, with the factory occupier’s
knowledge, would reasonably anticipate that injury could occur from incomplete
fencing, or whether incomplete fencing provided security against all reasonably
foreseeable risks.

In this case, there was only one way a person could have got into the difficulties which
Mr Burns found himself in. That was by doing what Mr Burns did. It was entirely
unforeseeable that any person would rest a ladder against a revolving shaft and get his
hand around the fencing so that it was in contact with the dangerous cogs behind.

The final decision was that the employer wasn’t liable and therefore Mr Burns did not
win his case.

Notes:

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How does the law work?

You don’t need to know the detail of every regulation, but you do need to understand a
little more about how the law works in relation to health and safety.

Remember the workplace accident in Module 1?

We said that if the accident had happened because of a

failure to manage health and safety risks in the
organisation, the regulator may take action, which in turn
may lead to prosecutions, fines and imprisonment. Also, the
injured worker may seek compensation for their injuries.

Essentially, there are two types of legal proceedings that

could take place as a result of the accident: a criminal
law case and/or a civil law action.

So, as a manager, you need to understand why.

Criminal law case

Employers have a legal duty under the Health and Safety at Work etc Act 1974
(HASWA) to manage health and safety risks. This Act is known as a statute and is
created by Parliament – in other words, it’s the law of the land. As you can imagine, there
are many statutes relating to a whole range of issues, not just health and safety matters.

The type of law created by statutes is referred to as

criminal law. So, breaching health and safety law is a
criminal offence, which can be punished through
fines and/or imprisonment.

Usually, any legal action must start within six months

of the accident or from when the Health and Safety
Executive (HSE) or Local Authority (LA) realise
the organisation has broken the law.

• All employers, directors, managers, manufacturers and employees have a duty

under HASWA to ensure, so far as is reasonably practicable, health and safety in
relation to their activities.

• Under the Management of Health and Safety at Work Regulations 1999, additional
general requirements are placed on employers to carry out assessments of reasonably
foreseeable risks and to implement risk controls, so far as is reasonably practicable.
• The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations
1995 (RIDDOR) require the reporting of certain types of accidents and incidents.

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Other regulations set minimum requirements for a range of specific hazards – for
example, chemicals and work equipment.

This type of law is proactive – it’s designed to encourage prevention and avoidance – and
reactive – it provides punishment for lawbreakers.

In criminal law, the case against the accused must be proved by the prosecution, in this case
the State or its representative, ‘beyond reasonable doubt’. This is also known as the
‘burden of proof’.

Penalties for criminal offences can be fines and/or

imprisonment. The severity of the penalty depends on the
seriousness of the crime. These fines come out of the
company’s bottom line – they’re not covered by
insurance policies.

Notes:

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Remember we said that the injured person might also bring a personal injury claim against
the company. So how does that work?

Civil law action

In civil law, victims of harm or loss, caused by the fault or negligence of

another party, can seek compensation for that harm.

Usually, the legal action must start within three years of the accident
or when the injured person found that the injury was the fault of the
employer. The amount of compensation awarded depends on the
nature of the injury and its effect on the person’s ability to earn a living.

This type of law is not produced by government but is developed over time by the
decisions made by judges – also known as precedents. So a decision taken by a judge in
one particular case will apply to all future similar cases. You can think of this type of law
as ‘judge-made’.

This type of law is entirely reactive – someone has to suffer harm or loss before a
case can be brought to court.

In such cases, the responsibility is on the claimant (the injured party) to demonstrate
that the defendant has been negligent so that the judge is more certain than not of the
defendant’s negligence – this level of proof is usually referred to as ‘the balance of
probabilities’.

For the claimant to be successful, they have to show

three things:

1. that the defendant owed the person a duty of care

2. that the duty of care was breached
3. that the injury was caused by a breach of the duty.

So in the case of our accident, the company owed the employee a duty of care not
to cause them foreseeable injury. By failing to manage foreseeable safety risks, they
breached the duty of care and caused the injury.

If the employee is found to have played a part in contributing towards their own injury,
the claim for compensation may be reduced or even denied because of their ‘contributory
negligence’.

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Also, the employer can be liable for the negligent actions of his employees which cause
injury to others while they’re in employment. This is known as vicarious liability.

In addition to establishing negligence, breaching some statute law gives a right to pursue a
civil action.

Employers are required to take out and maintain insurance policies against liability
for injury or illness sustained by their employees while in their employment.

Employers’ liability insurance is compulsory for many organisations – exceptions are

public organisations, health service bodies and other public funded bodies. This insurance
allows businesses to meet the costs of compensation and legal fees for employees who
are injured or made ill at work through the fault of the employer.

By law, an employer must be insured for at least £5 million.

Notes:

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To conclude, here’s a summary of both criminal and civil law:

Criminal law Civil law

Who does the court The accused – the individual The injured party – the
case focus on? or organisation who’s person who’s suffered
accused of breaking the law harm as a result of the
actions of others

What is the main Statute law Common law precedence

source of this type
of law?

Who makes this kind Parliament – usually takes Judges – might change
of law? years to change tonight

Who initiates legal Health and Safety Executive Anyone affected

proceedings? or Local Authority

What is the most Fines and/or possible Compensation payouts

likely outcome for imprisonment
this case?

Who is responsible The State (subject to health The claimant

for proving the case and safety law)
(burden of proof)?

What is the burden Beyond reasonable doubt On the balance of

of proof? probabilities

Normally, how soon Six months for summary Three years from discovery
must legal action offences (but can be of harm (but courts have
start? extended) discretion to extend)

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 Criminal law Civil law
What are the main Health and Safety at Work Duty of care
parts of the law that etc Act 1974 (HASWA) and
apply? associated regulations Negligence

Breach of statutory duty

Did you know…?

In late August 2005, Transco plc was fined a total of £15 million due to failure
to keep accurate records of its pipelines, which led to a fatal explosion. The
company was also found guilty of failing to ensure that members of the
public were not exposed to risks to their health and safety.

Notes:

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Help with interpreting and applying the law comes in the form of:

• approved codes of practice

• guidance documents

• industry-specific guidance.

So now you know that you have to manage foreseeable risks to the extent that is
reasonably practicable. You also have an insight into how things might pan out if there
were a serious accident.

There doesn’t have to be an accident for an inspector to take action! If an inspector has
concerns about your activities and believes you’ve broken the law, they can take action
by issuing an improvement notice or prohibition notice.

• An improvement notice gives you a time limit in which to resolve the problem.
• A prohibition notice means that you must stop an activity that’s considered to
present a risk of serious personal injury.

Now we need to look at the best way of managing foreseeable risks. The ideal way to do
this is to incorporate health and safety into everything you do by planning, doing what you
plan, checking that this was OK and, if not, acting accordingly and planning again. This
process is central to good business management, not just health and safety.

We’ll now consider the key elements in a health and safety management system.

Notes:

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What are the key parts of a health and safety management system?
Most health and safety management systems are based around the principle of plan,
do, check and act.

Policy, planning and organising

Implementation and operation

Measuring performance

Reviewing
and continual
improvement

The key benefits for you and your organisation of introducing a health and safety
management system (HSMS) are:

• complying with legislative and other requirements

• helping you to deliver the policy
• enabling improved management of health and safety risks
• providing competitive edge
• providing synergy with good business management.

Notes:

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Effective health and safety management systems include the following elements:

Policy

Say what you’re going to do – a statement of

commitment by the organisation’s senior management to
comply with health and safety law and meet ethical and
professional responsibilities for health and safety. If you
employ five or more people it is a legal requirement to
have a written health and safety policy.

Planning

Plan how you’re going to do it – a plan for hazard

identification, risk assessment and risk control, being
prepared for emergencies and response, together with
identification of the relevant legal and other standards
that might apply to your organisation.

Organising

Get the people in place – a definition of who’s

responsible for what in terms of health and safety
and how to make sure that everyone’s capable of
fulfilling their responsibilities. You also need to
consult on health and safety matters – there’s a
fund of knowledge and expertise within the
workforce, clients, suppliers and other stakeholders
that can help you. And remember communication –
from basic information and work procedures to how
the system works – is vital.

Implementing and operating

Doing it – the process of putting in place the

plans and getting involved in all the necessary
activities, from risk assessment, through safe
systems of work, to audit.

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Measuring performance

Find out how well you’re doing – from reactive

data (for example, on injuries and ill health) to
active data (such as on inspections and training).
This will give you an indication of whether your
actions are working. Audits will help you judge
whether the whole system is working. You’ll
need to make adjustments as necessary.

Review and continual improvement

Overall, does the system work and how can we make

it better? – an evaluation of the overall design and
resourcing of the system compared with the
performance achieved. It shows a commitment to
manage health and safety risks proactively so that
accidents and ill health are reduced and/or the
system achieves its goals using fewer resources.

A number of health and safety management systems have been published, but all
reflect the plan–do–check–act cycle.

Find out what health and safety management system is in use in

your organisation.

Notes:

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Getting it right

• You need to appreciate the key concepts and enforcement procedures, so you
understand when to act, when not to act and when you might need help on health
and safety matters.

• You need to assess reasonably foreseeable risks and put in place control measures
that reduce risks down to the lowest reasonably practicable level.

• To be successful, the health and safety management system has to match your
organisation’s needs and its management approach. You’ll probably find that all
systems need to be adapted to the specific needs and culture of the organisation in
order for it to be sustainable.

• It’s vital to get everyone involved to make health and safety management a success.

Notes:

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Summary

1. The law requires you to assess ‘reasonably foreseeable’ risks. The three tests you
can apply are…

2. The law consists of two distinct pathways…

3. The six key parts to a safety management system are…

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Glossary of terms

Burden of proof is an obligation to prove what is alleged.

Civil law is the section of the law that deals with disputes between individuals
or organisations.

Criminal law is the section of the law that punishes criminals for committing
offences against the State.

Duty of care is the legal requirement that employers must do everything

reasonably practicable to protect others from harm.

Health and Safety Executive (HSE) reports to the Health and Safety Commission and is the
British government body responsible for regulating risks to health and safety in the UK.

Health and Safety at Work etc Act 1974 (HASWA) places duties on employers,
directors, managers, manufacturers and employees to ensure, so far as is
reasonably practicable, good health and safety in relation to their activities.

Local Authority (usually through Environmental Health Officers (EHOs)) aims to

protect people from environmental health hazards in their living and working
surroundings. They enforce legislation such as the Health and Safety at Work etc Act
1974, the Food Safety Act 1990 and the Environmental Protection Act 1990. They also
advise householders, shopkeepers, business owners, managers and workers in industry.

Management of Health and Safety at Work Regulations 1999 place additional general
requirements on employers to carry out risk assessments of reasonably foreseeable
risks and to implement risk controls so far as is reasonably practicable.

Precedent is a type of law not produced by government but is developed over time by
the decision made by judges. So a decision taken by a judge in one particular case will
apply to all future similar cases.

Reporting of Injuries, Diseases and Dangerous Occurences Regulations

1995 (RIDDOR) require the reporting of certain types of accidents and incidents.

Statutory law consists of laws that have been made by Acts of Parliament. Governments
may introduce a bill to update existing laws or develop new ones to respond to changes in
society. A bill is debated in Parliament and, once passed, is drafted into law.

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