Typical Examination Questions based on Element 2 The Health & safety Policy

As the title sugests this post contains example question from element 2 of the NGC1 Management of health & safety certificate,

The Health & safety Policy

1. Outline the main components of a health and safety management system. (8)


2. Explain the factors that should be considered when drawing up the arrangements section of a safety policy. (8)


3. Outline the factors that should be considered when auditing the effectiveness of compliance with an organisation's health and safety policy. (8)


4. (a) Outline the legal requirements whereby employers must prepare a written statement of their health and safety policy. (2)

(b) Explain the purposes of EACH of the following sections of a health and safety policy document:


(i) 'statement of intent' (2)
(ii) 'organisation' (2)
(iii) 'arrangements' (2)

(c) Outline the issues that are typically included in the arrangements section of a health and safety policy document. (12).


5. (a) Identify the typical content of the 'statement of intent' section of an organisation's health and safety document. (2)
   (b) Outline the factors that may indicate that health and safety standards within an organization do not reflect the objectives within the 'statement of intent'. (6)

Element 2 The Health & safety Policy Typical Exam Questions Answers

E2/1 Answers should have included the objectives set out in HSG65.These are:

The safety policy as being a clear statement of intent, setting the main health and safety aims and objectives of the company

The organisation for health and safety to be such as to ensure clear allocation of responsibilities to members of staff with the emphasis on achieving competency, control, communications and consultation.

Planning and implementation to involve risk assessment, the setting of standards and the introduction of appropriate control measures to achieve standards

Measuring performance by proactive and reactive monitoring methods

Review and auditing to check whether what was planned is actually happening and to consider options for improvement, setting new targets where necessary

E2/2 The answer should include factors rather than a list of topics.
For example, type of Organisation, work processes, hazards, format, layout, skill factors and type of workforce. Marks would be awarded for considering content although this is not the main thrust of this question.

E2/3 Factors that could be included are; the quality, availability and understanding by the workforce of the policy; The use of site tours and inspections etc.; the relevance of performance indicators (e.g. accidents/incident rates); the standard and use of training and maintenance along with records; the cross-checking of health and safety arrangements against practical implementation, the standard of conformance with both management and shop floor activities.

E2/4
(a) The requirements for a safety policy is imposed on employers with 5 or more employees by the Health and safety at Work Act 1974

(b) Statement of intent - demonstrates the organisation's commitment to, and sets objectives for, health and safety

Organisation - identifies health and safety responsibilities and communication channels within the organisation

Arrangements section - details the practical means of achieving the objectives laid down in the policy statement

(c) This section should identify a range of health and safety issues for which arrangements should be in place. For example: Machinery, hazardous substances, manual handling, fire, accident investigation, reporting and control, employee consultation, monitoring arrangements, emergency procedures, risk assessments, maintenance, selection and training of staff etc.

E2/5

1. (a) The 'statement of intent' is designed to provide an overview of the general health and safety goals and objectives of an organization. Additionally, it should be signd by the most senior person in the organization to demonstrate management's commitment to achieving the stated objectives.


2. (b) Answers should include:
   
   
   • Failure to communicate the policy to employees
   • A lack of commitment from management
   • A lack of investment in health and safety
   • A poor overall safety culture
   • High accident, incident and ill-health rates
   • Low moralamongst employees
   • High staff turnover
   • Unacceptable rates of absenteeism
   • Unsafe and poorly maintained equipment
   • Inadequate provision of personalprotective equipment
   • The absence of monitoring procedures.
     

The Health & Safety Policy

This post is inteneded to help explain the purpose and importance of setting policy for health and safety and describe the key features and appropriate content of an effective health and safety policy.

1. The importance of setting policy for health and safety

The most effective means of demonstrating the importance of health and safety issues is for organisations to have a health and safety policy that is signed and dated by the most senior member of the management team. The need for all employers to create in writing a safety policy is a statutory requirement under section 2(3) of the Health and Safety at Work etc. Act 1974. Small organisations with less than 5 employees still require a health and safety policy, but not in writing.
This is only the law emphasising what has been known for many years - good organisations have safety policies at the heart of their safety manag.ement arrangements.
Policies should be 'enabling' like the Health and Safety at Work etc Act itself that is, written in a way that is reasonable and logical and the touchstone against what every activity within the organisation can be benchmarked.
The policy in itself can assign responsibilities and set methods by which the organisation's policy on health and safety issues can be implemented.
These assigned responsibilities and accountabilities must not be in any conflict with any person's job descriptions and should be taken into account when considering if what employees are being asked to do is reasonable within time constraints.
Accountability is the primary key and this is not the same as responsibility. Accountability is responsibility that is evaluated and measured during safety audits and, during annual individual job appraisals.
The policy should include a simple statement of the intent of management, together with the details of the organisation along with delegated responsibilities at each level of the operation.
This policy must be made known to every employee and 'made known' does not mean just displaying it on the company notice board. A useful method to ensure that the policy is 'made known' to every employee is to arrange for them to read it and sign a document to that effect.


2. The key features and appropriate content of an organisation's health and safety policy

We must not get mixed up in our minds between a safety policy and a safety manual. These are not the same even though in some organisations they are combined.
The safety policy should set targets and make reference to the safety manual as well as other stand-alone documentation like maintenance manuals or training programmes.
The policy should provide all employees with concise details of the health and safety objectives of the organisation.
That is what everyone must know and take account of.
Employees must also be aware of their responsibilities as related to their particular job within the organisation and how their actions or inaction impact upon other people..
In large organisations with several sites, possibly doing entirely different types of operations, the safety policy of intent will be the same but detailed arrangements for implementing it will be written at local level.
Organisational arrangements
Whether the company is a multi-national corporation or a small business, the policy must contain the same basic matters.
Obviously, the requirements for large corporati6ns will be much more extensive than for amall business where in many cases the management system can be to a great extent informal.
A health and safety policy will normally have three sections:-
The statement of intention - this will set out an expression of intention, and commitment, to matters concerning health and safety.
The organisation section will describe the responsibility of line managers and employees at all levels.
The arrangements section will detail the way in which health and safety is managed. The arrangement section may include:-

• The systems by which safety performance is monitored in order to identify, record and take appropriate action to deal with deficiencies in performance
• Identification of the main hazards likely to be encountered by the workforce or other persons who may be affected by work activities.
• Significant findings of generic risk assessments and any circumstances when specific risk assessments will be required with arrangements or cross references for dealing with them
• Employee selection criteria and subsequent training arrangements
• Buildings, plant, machinery, equipment selection criteria along with maintenance arrangements and statutory examination and testing
• Material and substance purchasing policy and arrangements
• Safety arrangements for products and services
• Occupational health facilities including first-aid arrangements
• Environmental monitoring policy and arrangements
• Methods of reporting accidents and incidents
• Methods used to investigate accidents and incidents
• Arrangements to validate, appoint and control the work of contractors
• The policy for the assessment of the need for personal protective equipment, it's purchase, availability, use, storage and replacement arrangements along with training requirements
• Workers consultation arrangements, for example, safety committees
• Fire and other emergency arrangements
• Arrangements for dealing with safety violations and of encouraging conformance

Other considerations

Safety policies as written statements of the intention of management should be live working documents. They serve as a record of the standard of care that management is intending to provide.
They offer a useful method of evaluating an organisation in terms of their commitment to health and safety matters.
Unfortunately in a considerable number of organisations, especially smaller ones, the policy is merely a useful document to produce if asked to do so by inspectors, insurance companies or clients. In these cases any similarity between what the policy says and what is happening may be only co-incidental!
In using the policy to validate clients it is important to look closely at samples of activities to assess if the policy is indeed a live enabling one or merely cosmetic.
Because the policy is a statutory requirement it may well be used as evidence during a possible prosecution or civil claim for damages.

Revision of safety policy

Safety policies should be revised as often as is necessary. If the statement of intent is well worded in enabling terms it should, like The Health and Safety at Work etc. Act 1974, stand up well to the test of time.
It is more likely that changes will be required occasionally for one or more of the following reasons:

• New or amended legislation
• The setting of new case law precedents
• Following an incident that demonstrated a need for change

Changes in:

• products or services
• work processes or machinery
• personnel
• hours of work
• premises

The function of the safety policy

Safety policy statements and associate documentation serve as a structure to demonstrate that the organisation is meeting its common and statutory legal requirements. It should always be remembered that the law demands only the minimum of what is acceptable.
Good organisations should use the policy as a stepping-stone to higher objectives that can be based on moral duties and the reduction of financial loss.

Typical Examination Question (with answers) From the Management of Health & Safety Paper NGC1

1.

(a) Define the term 'Negligence' (2)
(b) Outline the THREE standard conditions that must be met for an employee to prove a case of alleged negligence against an employer. (6)

Answers

(a) Negligence is a civil wrong (delict/tort) involving unreasonable, careless conduct or a breach of common law duty of care resulting in loss, damage or injury.
(b)

1. A duty of care was owed by the employer
2. There was a breach of that duty
3. The breach led directly to the loss, injury or damage.

2. Explain with examples the meaning of the follow terms:

(i) 'Hazard' (2)
(ii) Risk (3)
(iii) 'So far as is reasonably practicable' (3)

Answers

(i) Hazard - Something with the inherent ability to cause harm
(ii) Risk- The degree•of exposure to the harm x the potential harm factor

(iii) So far as is reasonably practicable - Assessing risk i.e. the potential harm against sacrifice i.e. the cost in terms of money loss of production or other costs

3. Outline with an example of each the difference between a HSC approved codes of practice and a HSE guidance note. (8)

Answers

An ACOP is a practice approved by the HSC with the consent of the Secretary of State and is a recognised interpretation of how an employer may comply with their associated legislation. Although failure to comply is not in itself an offence, the failure may be cited in court in criminal proceedings.
Employers would need to show the met the requirements of the ACOP or show they complied with an equal or better standard. An example is the ACOP to the Management of Health and Safety at Work Regulations 1999
Guidance is is ued by the HSE with the intentions of giving advice on good practice Guidance is normally more practically based than ACOP's and has no legal standing in a court of law.
Examples include those issued on manual handling or Display screen equipment

4. Outline the difference between civil law and criminal law. (8)

Answers

Among the differences are Civil law provides remedies while criminal law punishes. The burdens of proof are different in civil law 'On a balance of probability', .in criminal law 'beyond all reasonable doubt'. In civil law the parties involved are two civil bodies (individuals or corporate bodies) whereas in criminal cases it is the state and an individual or corporate body.
There are differences in the sources of law with criminal law generally written in statutes and civil law by judicial precedent

5. (a) Explain giving an example in each case the circumstance under which a health and safety inspector may serve;

(i) An improvement notice• (3)
(ii) A prohibition notice (3)

(b) State the effect on each type of enforcement notice of appealing against it. (2)

Answers

Improvement notices are issued when an inspector believes a statutory duty is being, or likely to be breach. For example carrying out work which may have significant risks associated with it and which no risk assessment has been made.
Prohibition notices are issued when the inspector considers there is imminent danger. For example, working with a crane in close proximity to high voltage power lines with no specific safety arrangements.
An appeal against an improvement notice would mean the notice is set aside until the appeal is heard. In the case of an appeal against a prohibition notice the notice will stand until the appeal is heard.

6. Outline the powers given to health and safety inspectors under The Health and Safety at Work etc Act 1974 (8)

Answers

Powers given to inspectors include:

• Gain access, without a warrant, to a workplace at any reasonable time.
• Employ police to assist them, where necessary.
• Take equipment, etc on to premises to assist in investigations.
• Carry out examinations and investigations as deemed necessary.
• Direct that locations remain undisturbed for as long as he/she deems necessary.
• Take measurements, photographs and samples.
• Take statements; remove certain records and documents.
• Require facilities to assist with enquiries.
• Issue improvement or prohibition notices
• Instigate criminal proceeding against individuals or corporate bodies for breaches of criminal law
• Do anything else necessary to enable his/her duty to be carried out.
  

MANAGEMENT OF HEALTH AND SAFETY

Foundations in health and safety

From this post is is hoped that readers whos are studying for a NEBOSH certificate will gain an understanding of what will be required for the NCG1 paper, this post is intended to help
1.1 Outline the scope and nature of occupational health and safety
1.2 Explain briefly the moral, legal and financial reasons for promoting good standards of health and safety.
1.3 Outline the legal framework for the regulation of health and safety
1.4 Describe the roles and powers of enforcement agencies, the judiciary and externalagencies
1.5 Identify the nature and key sources of health and safety information
1.6 Outline the key elements of a health ansafety management system.

Content

1.1 The scope and nature of occupational health and safety

Health, safety, welfare and environmental protection

• Health is concerned with the soundness of our physical body and our mind. That is, a condition of our mind and body.
• Safety is defined as 'free from harm, injury and risk'. That is, a condition we are in, where the wellbeing of our body and mind are not in danger of being adversely affected.
• Welfare is a collection of things that are put in place to ensure our wellbeing (our health) is looked after.
• Environmental protection is the guardianship we use to protect the environment, that is, the air, water and earth that surrounds us.

From these statements it can be seen that each of the above is different yet at the same time interrelated in that they are all concernd with the basic function of protecting life and the wellbeing of people.
Accidents, dangerous occurrences, near misses, and work-related ill health (physiological and psychological)

• Accidents can be defined as undesired, unplanned events in a series of planned events. The adverse consequences are, in the majority of cases immediate, but can be longer term. These consequences can have both physiological and psychological effects.
• Dangerous occurrences are events that have the ability to cause injury and damage. The consequences can be anything from minor to disastrous.
• Near misses, are dangerous occurrences that, in the incident in question, did not lead to an accident or dangerous occurrence.
• Work related ill-health happens when our protective shields of welfare and environmental protection fail to protect us. Ill-heath, like an accident, can have immediate consequences, but more likely will have long-term consequences often referred to as slow injuries.

Hazard and risk

• Hazard is something that has the inherent ability to cause harm. It can be animal, vegetable, mineral or abstract. It is quantitative; for example, slightly hazardous or very hazardous. Examples: a human, a poisonous plant, asbestos, or threatening behaviour.
• Risk is the possibility of exposure to a hazard. Often measured as: Severity of hazard x probability of exposure

1.2 The moral, legal and financial reasons for maintaining and promoting health and safety

Civil law and criminallaw (purpose, burdens of proof and remedies)

Civil law is the law that remains in areas where the state, through Acts of parliament, has not penetrated or intervened. It is law based upon the determination of particular cases in which judgements are made in courts, or on the formulation of general principles.
The purpose of civil law is to compensate a person or organisation (the pursuer) who brings an action for damages against another (the defendant) who has been found guilty of negligence. The person who has suffered the injury or damage must start the action.
The burden of proof is based on 'a preponderance (balance) of probability' and the remedy is reparation or financial compensation.
Criminal law is concerned essentially, with those offences that the state seeks to prevent. These offences can be against the state, against persons or against property.
The burden of proof is 'beyond all reasonable doubt' and it is for the prosecutor to prove this.
A person or organisation found guilty under criminal law of an offence can have penalties imposed. These penalties can befines or imprisonment.

Common (Civil) Law

The evolvement of acceptable customs

We,that is, The people living today, are a product of an evolved civilisation going back through history to a time when groups of people lived in isolation. As communal groups increased, it was necessary that members of the communities developed culturally acceptable standards of behaviour compatible with living together. This is true of all animals e.g. rats, elephants, tigers, humans, monkeys or apes etc.

Eventually the various types and forms of living creatures, of which man is one, developed customs, practices and procedures which allowed the groups to live in comparative peace and harmony, both within the groups and indeed in co-habitation with other groups.
As groups enlarged and developed, leaders or councils were elected and they in turn appointed people to make judgements about disputes within the group. This has evolved until today where we have sheriffs and judges who make decisions through our civil courts settling disputes between various individuals and/or factions.

When decisions are not well received within a society, wise leaders pay attention to this, so that if a similar type incident arises, decisions will be based on how their previous decisions were accepted.

Today we call such action 'Court Precedents'.

There are many former court cases, which have set precedents and are used by sheriffs and judges when making decisions on cases. It should be noted that, when a superior court makes a judgement, all inferior courts must take the decision into account in making their judgements.

From this method of precedents and evolving law based on cultural acceptable standards, we developed what is known as 'Common Law'.

At work under common law there are five main duties of care that employers owe to their employees. These are to give them:

(i) A safe place of work

In complying with this duty, we must consider the complete 'goldfish bowl' in which people work. That is, the condition of the following:

• Grounds, buildings and layout.
• Machinery.
• Safe storage, handling and use of articles and substances.
• Utility services (electricity, gas, water, pneumatics, hydraulics etc).
• Environment (temperature/dust/fumes/humidity/lighting/noise/quality of air etc).

(ii) Safe access and egress to/from the workplace

Consider: vehicles, passageways, stairs, ladders, scaffolds, special needs of people, emergency arrangements etc.

(iii) Adequate (fit for purpose) plant, machinery and tools

Consider: fitness for purpose, maintenance, controls, ergonomics (both physical and psychological) etc.

(iv) Safe systems of work

Consider: associated hazards, risks, dangers, compatibility with human abilities and limitations etc.

(v) Competent work-mates

Understand that work-mates are not only members of peer groups of workers but also include:

• Supervisors, managers and directors whose acts or omissions ca_n affect others
• Contractors who become work-mates.

All of these duties evolve in line with what is acceptable within society. Therefore what was acceptable yesterday may not be acceptable today, and what is acceptable today may not be acceptable tomorrow.

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One of the basic problems with common law is that before a person can proceed ith a civil action for injury or damage the injury or damage has to be_ sustained.Hence the reason the state brings in statutory laws.

The size of the health and safety problem can be seen in the following chart:

Key annual figures 2010/11
Ill Health	1.2 million working people were suffering from a work-related illness.
	Occupational Cancer Over 5000 casesestimated each yearfrom the constructionindustryOther
	Occupational Asthma About 30 000 people currently report they are suffering from breathing or lung problems caused or made worse by their work 2321 people died from mesothelioma in 2009 and thousands more from other occupational cancers and diseases such as COPD.
Injuries	171 workers killed at work.
	115 000 injuries were reported under RIDDOR.
	200 000 reportable injuries (over 3 day absence) occurredoccurred, according to the Labour Force Survey, a rate of 710 per 100 000 workers..
Working Days Lost	26.4 million working days were lost due to work-related illness and workplace injury 15 days per case of work-related illness or workplace injury.
Enforcement	551 offences were prosecuted by HSE with a conviction rate of 94%
	129 offences were prosecuted by local authorities with a conviction rate of 97%

Source: HSC Health and Safety Statistics 2010/11.

It speaks for itself when reflecting on these figures that there is a strong moral argument in a civilised society to do all that we can to stop people's quality of life, if not life itself, being destroyed by work activities.

Cost of accidents

Justification of costs of implementing safety and health measures can be seen in terms of:

• Keeping the company on the right side of the law
• Reducing insurance claims
• Good public and industrial relations
• Looking after the good reputation of the organisation
• Improving morale within the workforce

In addition to the above, accidents are more costly to a company than is generally appreciated. The cost of accidents is divided into direct costs (that is insurance costs) and indirect costs. Associated with every accident unplanned and/or unmanaged event) are considerable losses that are absorbed into what is called overhead costs. These costs are in addition to what would normally be recovered from insurance plus the cost of first-aid facilities.

Indirect costs can include:

• Lost time and talent of the injured employee
• Lost production and with it, the possible goodwill of customers )
• Cost of investigation with possible highlighting of other deficiencies
• Court expenditure, including possible fines etc.,
• Damage to property, plant and machinery
• Cost of industrial and/or public unrest
• Increased insurance premiums

Accident costs

These average indirect costs are based on random sampling.

• Three day reportable type incidents resulted in losses of................... £589.00
• First aid treatment incidents (including up to two days absence) ........ £18.00
• Damage type incidents .....................................................................£274.00

The average number of reportable injury incidents in a factory employing 1,000 people is 30 per year.
A review of first aid incidents indicates that the number of entries in first aid books tends to be around
75% of the numbers employed. Note: This does not means that 75% of the workforce requires treatment. Some employees attend for treatment more often than others.
All statistical evidence suggests that there are many more damage type incidents at work than injury incidents.
The survey did not take account of either downtime incidents or cumulative injuries, unless they were recorded in accident books. Note: Statistics have shown that on average, there are a great many more cumulative health injuries at work than physical reportable type injuries.

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Indirect costs

Using these figures we arrive at:
30 x three day incidents at £589.00 each ..........= £17,670.00
750 incidents at £18.00 each ............................= £13,500.00

Assuming that the number of damage incidents are the same as injury ones:
780 damage incidents = £213,720.00

This gives a totalcost of
Turnover costs: = £244,890.00

The only place the money to pay for accidents can come from is turnover profit.
If an organisation's turnover profit is 10%, then for every pound lost in accidents, they must turnover ten pounds.


From the figures above, the organisation would have to turnover £2,448,900

In terms of production this would be the equivalent of:
Making and selling 244,890 shirts with a wholesale price of £10.00.

Purchasing land, obtaining building permission, designing houses and then building an estate of 30 semi-detached houses and selling them.

Optimum level loss control

It is not possible to save all such losses. However if an organisation commits itself to diligently applying a total loss prevention programme, substantial savings can be made on losses that are normally just absorbed into 'overhead costs'.

1.3 The legal framework for the regulation of health and safety

Statute (criminal) law

Today much of our statute law is being brought in under the umbrella of the Regulations and Directives from the European Union. EU Regulations are directly imposed upon member states, whereas Directives set out general principals that each member state must encompass into their statute laws within an agreed time-scale.

Statute laws, when introduced by the state, will mean that those not complying with the law can be prosecuted by the state through the criminal courts, where if found guilty, the perpetrator of the
offence can be given a warning, fined or sent to prison.

Statutory law

Statute laws are Acts of Parliament such as The Health and Safety at Work etc Act 1974, together with the Regulations, Rules and Orders made within the scope of the Acts.

Modern Acts of Parliament set out principles or objectives and use specific Regulations or Orders to implement the principles/objectives.

Acts of Parliament are primary or principal legislation, whereas Regulations made under the Acts are secondary delegated legislation.By-laws made by local authorities are another example of delegated legislation. Ministers of the Crown make regulations via powers given to them by a Principal Act. Once introduced, they become statute law like the Acts of Parliament and breaches of them
constitute a criminal offence.

Most current legislation concerning health, safety and welfare and almost all of what will be future legislation originates within the European Community framework.

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Administration

The administration of the E.U. is carried out through four bodies:

• The Commission

This is formed of Commissioners representing each of the member states. The Commission administers the law throughout the E.U. similar to that of the U.K. civil service. E.U.. Iegislation originates from the Commission in the form of Directives sent for approval to the Council of Ministers.

• The Council of Ministers

This is composed of delegates from each member state. It is similar to the Government of the U.K. and voting is proportional, depending on the size of each country's population. Matters concerning health and safety are subject to qualified majority voting.

• The European Parliament

This is formed of representatives elected from constituencies from within member states. It consults and debates on all proposed legislation.

• European Court of Justice

This adjudicates on the law of .the EEC and its decision is binding upon all member states' judicial courts by virtue of the EEC Act 1972. It has 13 Judges, including one from each member state. The European Court of Human Rights enforces agreed community standards on the protection of human rights and fundamental freedom.

Elements of EC law

Apart from the general provisions of the Treaty of Rome (which is signed by all member states), there are three elements of European Law:

• European Regulations

These are passed by the Council of Ministers and are adopted immediately .into the legal framework of each member state. They a.re directly imposed on every citizen living within the EC.

• Directives

These set out general objective standards, which must be achieved by member states within a specific time-scale. Member states can decide whether to alter their own individual legal framework to meet the objectives of Directives or adopt them directly. In the UK, the implementation is by Statutory Instruments, i.e. Regulations.

• Decisions

These are decisions reached when a matter is taken to the European Courts and affects only the parties directly concerned, although they do set precedents.
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Statutory Jaw

Statute laws are Acts of Parliament such as The Health and Safety at Work etc Act 1974, together with the Regulations, Rules and Orders made within the scope of the Acts.
Modern Acts of Parliament set out principles or objectives and use specific Regulations or Orders to implement the principles/objectives.
Acts of Parliament are primary or principal legislation, whereas Regulations made under the Acts are secondary delegated legislation. By-laws made by local authorities are another example of delegated legislation. Ministers of the Crown make regulations via powers given to them by a Principal Act. Once introduced, they become statute law like the Acts of Parliament and breaches of them constitute a criminal offence.

The Health and Safety at Work etc, Act, 1974

This is the primary piece of legislation on which all of our statutory legal requirements concerning health and safety at work is based. It is an enabling Act in that it sets out objectives to be achieved rather than specific requirements.

The following sections, 2 - 9 contain the main thrust of those requirements.

Section 2

Employers must take all reasonable care to safeguard the health, safety and welfare of their employees. In particular this means providing and maintaining:

• Safe plant and systems of work.
• Safe handling, storage, maintenance and transportation of articles and substances associated with work.
• Adequate selection of employees and thereafter providing sufficient information, instruction, training and supervision.
• Safe places of work including access and egress.
• Safe working environments and adequate welfare facilities

There is an absolute duty on employers with five or more employees to prepare revise as necessary and communicate to all staff, a written safety policy detailing a policy of intent and organisational arrangements for implementing it.
Employers must consult with employees on health and safety matters, and where requested to do so by two or more trades union appointed safety representative, set up a safety committee.
The self -employed has similar duties but do not require a written safety policy.

Sections 3 and 4

These sections impose duties of care on employers towards persons other than employees, e.g. contractors, visitors, self-employed and general public.

Section 5

Repealed

Section 6

Designers, manufacturers, importers, installers and those who hire out plant and/or equipment have a duty to ensure, so far as is reasonably practicable, that the article or substance for use at work is safe when being properly used.
Sufficient tests etc., must be competently carried out to validate the article or substance for use at work.
All necessary information must be provided regarding the article or substance and the safeguards to be observed when using or storing it. Such information should not just be 'made available'.

Section 7 and 8

Duties are placed on employees at work to:

• Take all reasonable care for their own health and safety and the health and safety of anyone who may be affected by their acts or omissions.
• Co-operate with their employers to meet legal obligations.
• Neither intentionally, nor recklessly interfere with or misuse anything whether plant, equipment or methods of work, provided by their employer to meet obligations under this or any related legislation.

Section 9

The employer is not allo ed to charge employees for anything done or provided to meet specific statutory requirements.

Approved codes of practice

These are brought in to supplement statutory legislation such as Acts and Regulations.
They give guidance on the general requirements and explain how the requirements can best be adequately implemented. This effectively allows standards to be kept current by altering the ACOP rather than having to amend the legislation.
Failure to comply with an ACOP is not in itself an offence, but failure is held to be proof of contravention unless the defender can show the compliance was achieved in some other way.
The test would be that the 'other way' did not in any way circumvent the element of care in the ACOP.

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Guidance notes

These are issued by the HSE as opinions of good practice. They have no legal force, but becquse of their origin would be 'persuasive' in practice with lower courts, and useful in civil cases to establish reasonable standards of care.
Types of duties imposed by statute

• Absolute duty - otherwise known as 'Strict Liability'

An Act or Regulation where there is a high risk of severe injury or a high risk of an occurrence,
which could lead to severe injury, imposes this duty. The words 'must' or 'shall' appear in the , )
requirement of the Act or Regulation.

• Duty to do what is 'Practicable'

• Some Regulations state that action must be taken so far as is practicable. To implement this duty, the employer must consider current technological knowledge and feasibility. Some degree of reasonability can be applied and account taken of current practice - but cautiously. 'Practicable' means something less than physically possible.

• Duty to do 'So far as is reasonably practicable'

This phrase qualifies almost all of the general duties imposed by the Health and Safety at Work etc. Act 1974.
It allows a balance to be made between the cost of the action proposed (in terms of money,
time or inconvenience) against the degree of risk associated with the situation being )
considered.

The employer's duty of care and the rights and expectations of employees

The employer's duty of care toward employees is expressed in common law as providing:

• A safe place of work
• Safe access and egress to and from the place of work
• Adequate and safe plant machinery and tools for use at work
• Safe systems of work
• Competent work-mates

In addition employers have a duty to ensure their work activities do not impinge upon the wellbeing of other persons.
These duties are now embedded within statutory law in the form of The Health and Safety at Work etc., Act 1974 and Regulations made thereunder. Employees have the right to expect their employer to give all due care and attention to matters concerning their health and saf ty. That is the employer meeting both his statutory and common law duties of care.

The employer's common law and statutory duties of care

The duties of care include such items as ensuring:

• Adequate consideration is given to the selection of staff that are, or can be, developed through education and training to be able to competently carry out the type of work detailed in their job
  description.
• Proper consideration is given to the adequacy and maintenance of places of work, plant,
  machinery, tools and systems of work. These must be maintained in conditions that are safe and free from undue risks to employees or any other persons who may be affected by work activities.
• Sufficient monitoring arrangements are carried out that will identify non-conformances of or to the management systems and thereafter taking appropriate action to eliminate such non­ conformances.

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1.4 The role and powers of enforcing agencies,the judiciary and external agencies

Criminal liabilities

The enforcement arrangements

• The Health and Safety Executive (HSE) is the enforcement body of the Health and Safety Commission (HSC).

The HSC consists of ten .members appointed by the Government from industry, trade unions, local authorities and other interested groups (currently consumers).
The HSE has the principle responsibility for enforcing legislation and employ enforcement officers (inspectors). For lower risk activities and premises such as offices and retail outlets, the powers of enforcement are delegated to local authority environmental departments, whose officers (EHOs) have the same powers as HSE inspectors.

Powers of inspectors

An appointed inspector can:

• Gain access, without a warrant, to a workplace at any reasonable time.
• Employ police to assist them, where necessary.
• Take equipment, etc on to premises to assist in investigations.
• Carry out examinations and investigations as deemed necessary.
• Direct that locations remain undisturbed for as long as they deem necessary.
• Take measurements, photographs and samples.
• Take statements; remove certain records and documents.
• Require facilities to assist with enquiries.
• Do anything else necessary to enable their duties to be carried out.

Enforcement

Where an inspector discovers what is considered to be a contravention of an Act or Regulation, they
can:

• Issue a Prohibition Notice with immediate or deferred effect. Such a notice will prohibit the activity described in it. The inspector will issue such a notice where it is considered that there is an imminent risk of serious injury.
  • An appeal can be made against the notice but the notice will remain in force until the appeal is heard.
• Issue an Improvement Notice, which will specify a timescale within which the rectification of the contravention must take place.
  • Appeals can be made within 21 days to an employment tribunal.This would postpone the notice until the appeal is heard.
• Prosecute any individualwho contravenes a requirement or fails to comply with a notice.
• Seize and/or render harmless any substance or article which is considered to be of imminent danger.

Penalties

The Health and Safety at Work etc Act, section 33 (as amended) sets out the offences and maximum penalties under health and safety legislation.

Failing to comply with an improvement or prohibition notice, or a court remedy order (issued under the HSW Act sections 21, 22 and 42 respectively):

Lower court maximum £20,000 and/or 6 months imprisonment

Higher court maximum unlimited fine and/or 2 years imprisonment

Breach of sections 2 - 6 of the HSW Act, which set out the general duties of employers, self­ employed persons, manufacturers and suppliers to safeguard the health and safety of workers and members of the public who may be affected by work activities:

Lower court maximum £20,000

Higher court maximum unlimited fine

Other breaches of the HSW Act, and breaches of 1relevant statutory provisions' under the Act, which include all health and safety regulations. These impose both general and more specific requirements, such as requirements to carry out a suitable and sufficient risk assessment or to
provide suitable personal protective equipment:

Lower court maximum £5,000

Higher court maximum unlimited fine

Contravening licence requirements, or provisions relating to explosives. Licensing requirements apply to nuclear installations, asbestos removal, and storage and manufacture of explosives. All entail serious hazards, which must be rigorously controlled.

Lower court maximum £5,000

Higher court maximum unlimited fine and/or 2 years imprisonment

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Employment tribunals

Tribunals are part of the statutory system of law in which different tribunals are regulated by differing statutory provisions. They are not courts but are bodies established to make decisions in particular areas of law. The legal instrument that brings them into being regulates them. Employment Tribunals are chaired by a legally qualified person and normally have one member representing the CBI and one representing the TUC. The tribunal has the power to either cancel or affirm a notice. The tribunal can affirm the notice in its original form or with such modifications as the tribunal may in the circumstances see fit.

Appeals against tribunal decisions are allowed on questions of law, decisions being referred back to the tribunal if it has acted improperly, exceeded it's jurisdiction or refused to hear a case.

Civil liabilities

A 'delict' is a civil wrong; it is termed a 'tort' in England. It is harmful conduct by a person or organisation that causes loss or injury to another person. It subjects the person or organisation responsible for a loss or injury to legal liability and to make reparation for the damage caused.
Delict is summed up by the maxim 'Damnum injuria datum'- loss caused by legal wrong. The three elements can be defined as:

• Damnum - loss or injury suffered by the party who has been wronged.
• Injuria - conduct which mounts to a legal wrong.
• A causative link between damnum and injuria Le.loss and injury must be directly linked to the legal wrong.

The duty of care required by common law, if civil liability for negligence is to be avoided, seeks to ensure simply that a person takes 'reasonable care' if he is in a situation where, if he were to fail to take such care, it could be foreseen that somebody else might suffer injury or loss.
Negligence is when a person fails in their common law duty of care to another.
The three questions, which must be answered in the affirmative in order to establish liability for negligence, are:

(i) Did the defender owe a duty of care to the pursuer?
(ii) Was there a breach of that duty of care?
(iii) Did the damages sustained by the pursuer result directly from the breach of duty?

Vicarious liability

Vicarious liability is where one person is held responsible for the acts or omissions of another.
Under common law, an employer is always held responsible for the acts or omissions of his employees whilst they are at work.

Courts

Civil cases in Scotland are dealt with at the Sheriff Court and appeals firstly at the Court of Session
and thereafter in the House of Lords.
Criminal cases in Scotland would normally be heard in the Sheriff Court and appeals in the High
Court of Justiciary and thereafter the Criminal Court of Appeal.

Defences

General defences that may be pleaded are:

• All reasonable action was taken.
• No duty of care was owed.
• There was no breach of duty.
• The injury/damage was too remote from the breach.
• Mistake.
• Statutory requirement i.e. the act was carried out under a statutory requirement.
• Necessity e.g. where a house on fire is demolished.
• Private defence e.g. reasonable force is used to defend oneself.
• Inevitable accident e.g. not avoidable by any reasonable action that may have been taken.
• Volenti-non-fit injuria i.e. a person cannot complain of an injury if they deliberately took the risk.

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The Health and Safety Commission (HSC)

The HSC are appointed by the Secretary for State and consists of a chairperson and nine members. Three are appointed after consultation with employers' organ_isations, three after consultation with employees' organisations and two after consultation with local authorities.
It is the duty of the HSC to:

• Assist and encourage people in furthering safety
• Arrange for the carrying out of research and to encourage research and the provision of training and information by others
• Provide an information and advisory service
• Submit proposals for regulations
• Report to and act on directions given by the Secretary for State
• Liase with local authorities and fire authorities to whom it has delegated some of it's duties

The Health and Safety Executive (HSE)

The HSE, which is appointed by the HSC, has responsibility for implementation. It consists of three persons one of who is the director and has a duty to perform such functions that the HSC directs him to do. For example the HSC may direct the HSE to make a special report on any accident, occurrence or other matter for a general purpose or with a view to making new Regulations.
The HSE employs Inspectors whose main function is to oversee the ways in which organisations try to comply with statutory duties of care and to take action where they find non-conformances.

Local Authorities

Local authorities have delegated powers to bring in specific by-laws. They also employ Environmental Health Officers (EHO's) who have the same powers as HSE inspectors. Environmental Health Officers inspect standards of compliance within offices, shops and non-or light industrial premises.

Fire Authorities

The Fire Authorities carry out inspections of work places and enforce compliance with in particular issues relating to fire risk assessments. They also offer advice on fire precautions and have powers to issue prohibition and improvement notices in the same manner as the HSE and EHO inspectors.

The Scottish Environmental Protection Agency

The Scottish Environmental Protection Agency was established in 1996 by the Environmental Protection Act and laid down its authority and responsibility. The Agency has amongst its duties a responsibility to carry out assessments of existing/potential pollution levels. It will also identify options for prevention/minimisation rather than punishment and compensation for individual offences committed and injuries suffered in connection with occupation of land (e.g. common law nuisance). To some extent this is still the trend today. A similar Agency operatesin England and Wales.

Insurance Companies

There are two forms of insurance that are compulsory. These are Employer's Liability and Motor Insurance. Other types of insurances are optional although few companies would operate without for example, fire insurance.

The trend today is for insurance companies to take a more hands-on approach when underwriting liability and engineering insurance.

Most insurers employ liability surveyors to visit their clients in order to establish the level of safety culture that exists. They will also assess the quality of management system and it's implementation as well as compliance with statutory duties of care.

They will consider the monitoring arrangements within the organisation to identify non-conformances and take corrective action.

The insurer will then recommend an action plan to the insured and whilst these are only recommendations, non-compliance may affect the premiums for insurance and in some instances lead to a cancellation.

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1.5 Sources of information on health and safety

Within an organisation there will be a variety of different sources of information both internal and external:
Internal sources:

• Drawings of buildings, describing materials, incoming services etc.,
• Manufacturer's instruction manuals for plant and machinery
• Maintenance records of plant and machinery
• Accident and incident investigation records
• Names of suppliers and service organisations
• Reports from outside agencies such as HSE, customer audits, and insurance companies
• Training records
• Job descriptions
• Safety policy and arrangements

External sources:

• Manufacturers handouts and booklets
• HSC and HSE publications
• Trades associations
• International Labour Organisation
• British standards
• Internet
• Encyclopaedias
• Case law
• Magazines and newspapers

1.6 The key elements of a health and safety management system

In the HSE publication HSG65 the six main elements for successful health and safety management are listed as:

• Policy

Having in place a well written and clearly definitive policy with regards to health and safety issues

• Organisation

Adequate levels of control, communications, competence, co-operation

• Planning and implementing

Pro-active management planning to ensure all events are adequately managed and active and positive implementation of planning strategy

• Measuring performance

Active (inspections, sampling or health monitoring etc.,) and re-active (investigating accidents, dangerous incidents, health problems etc.,) monitoring

• Reviewing performance

Carrying out critical analysis of how well the system of management is functioning with regards to h alth and safety issues

• Auditing

Carrying out a comprehensive audit to identify non-conformances of or.to the management system and then taking appropriate action to eliminatthe non-conformances.

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