NEBOSH National General Certificate

1
NEBOSH National General Certificate

• Unit 1 Session 2
• Criminal liability
• Health and Safety at Work Act 1974 and
  subordinate legislation
• Roles and functions of external agencies
• Powers of inspectors and enforcement

2
Statute Law Types

• Acts eg, Health and Safety at Work etc Act 1974
  - primary or principal legislation with enabling
  provisions
• Regulations eg, Control of Substances Hazardous
  to Health regulations 1999 - delegated
  legislation
• Orders eg, Commencement Orders bringing Acts
  into force
• Approved Codes of Practice (ACoPs) eg, COSHH
• Guidance Notes eg, HSE HSG and GN series

3
Statute Law Status of Acts and Regulations

• Acts primary or principal legislation with
  enabling provisions made by parliament
• Regulations delegated (by Acts) legislation made
  by appropriate Secretary of State following
  proposals made by Health and Safety Commission -
  laid before parliament and do not require a vote
  but can be vetoed within 40 days of being laid

4
Status of Orders, ACoPs and Guidance

• Approved Codes of Practice supplementary
  guidance to Acts regulations approved by HSC.
  Failure to comply not an offence provided
  defendant can show compliance achieved by some
  other equally effective means
• Guidance eg, HSC/HSE guidance, British
  Standards, industry guidance - not law but
  persuasive

5
Types of Statutory Duty

• Absolute must be achieved whatever cost or
  inconvenience
• Practicable (possible in the light of current
  knowledge and invention)
• Reasonably practicable (Edwards v National Coal
  Board (1949)) - balance between cost of action
  (money, time, inconvenience) and risk - where
  risk is insignificant in relation to cost action
  need not be taken

6
Criminal Law Offences

• Summary offences least serious criminal offences
  heard only in Magistrates Courts, eg TWOC, common
  assault
• Triable either way triable summarily or on
  indictment (most health and safety cases) can be
  heard by Magistrates Court or Crown Court - both
  prosecutor and defendant have a role in deciding
  the venue
• Indictable offences serious offences which can
  only be heard by Crown Court, eg murder, robbery

7
Magistrates Courts

• All criminal cases begin in the Magistrates Court
• Magistrates are appointed members of public
  assisted on law and procedure by professionally
  qualified Clerk to Justices
• Summary offences always heard in Magistrates
  Courts

8
Magistrates Courts (Cont)

• Triable either way Magistrates decide venue but
  defendant has right of trial in Crown Court. If
  found guilty by Magistrates they may refer case
  to Crown Court for sentencing if they feel their
  powers are inadequate
• Indictable offences Magistrates ensure
  sufficient evidence before referring to Crown
  Court (commital hearing)

9
Crown Courts

• Trial by judge (decides law) and jury (decide
  facts)
• Trial of cases where defendant has elected jury
  trial or where Magistrates have decided jury
  trial is appropriate due to seriousness and/or
  their limited powers of sentence
• Prosecution and defendant represented by counsel

10
Penalties Magistrates Courts

• Failing to comply with general duties under
  Health and Safety at Work etc Act 1974 up to 20
  000
• Failing to comply with Improvement or Prohibition
  Notice up too 20 000 and/or up to 6 months
  imprisonment
• Failing to comply with regulations up to 5000

11
Penalties Crown Courts

• All offences unlimited fine
• Failing to comply with an Improvement or
  Prohibition Notice unlimited fine and/or up to 2
  years imprisonment

12
Manslaughter (Involuntary)

• Unlawful killing without malice aforethought -
  causing
• death through gross negligence. Under present
  law a
• company cannot be convicted without proof of
  reckless
• behaviour by at least one director (the
  identification
• principle).
• Proposed new offences of
• corporate killing
• killing by individuals where recklessness or
  gross carelessness as to health and safety
  precautions has caused death

13
Health and Safety at Work etc Act 1974 (HSWA 1974)

• Historical Context
• 1833 first substantive health and safety
  legislation and four inspectors appointed
• Early legislation selective, prescriptive and
  hardware based
• Robens Committee 1970-1972

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Report of Robens Committee 1972

• Replace existing legislation with one enabling
  Act applying to all persons at work and persons
  affected by work activities
• Create new national authorities HSC and HSE
• Replace mass of detail with basic principles of
  general application
• Place more emphasis on software - systems of
  work, training, supervision, etc
• Provide new methods of enforcement in addition to
  prosecution

15
HSWA 1974 Section 2

• General duty to ensure, so far as is reasonably
  practicable, the
• health, safety and welfare at work of all
  employees and in
• particular
• safe plant and systems of work
• safe use, handling, transport and storage of
  substances and articles
• provision of information, instruction, training
  and supervision
• safe place of work, access and egress
• safe working environment and adequate welfare
  facilities

16
HSWA 1974 Section 2 (cont)

• Written health and safety policy statement (where
  5 or more employees)
• consultation with safety representatives and
  formation of heath and safety committees where
  there are recognised trade unions (Safety
  Representatives and Safety Committees Regulations
  1977)
• Note that Health and Safety (Consultation with
  Employees) Regulations 1996 extends consultation
  rights to all employees

17
HSWA 1974 Section 3

• General duty of employers and self employed to
• conduct undertaking so as to ensure so far as
• reasonably practicable that persons other than
  their
• employees are not exposed to risks to their
  health or
• safety, eg, visitors, contractors, members of
  public.
• Potentially of wide application.

18
HSWA 1974 Section 4

• General duty of persons concerned with premises
  to persons
• other than their employees
• Covers situations where persons permit use of
  non-domestic
• premises by persons who are not their employees
  as
• a place of work or,
• a place where they may use plant or substances
  provided for their use there

19
HSWA 1974 Section 5

• General duty of persons in control of premises
• in relation to harmful emissions into
• atmosphere.
• Dormant section - overtaken by
• Environmental Protection legislation enforced
• by Environment Agency.

20
HSWA 1974 Section 6

• General duty of manufacturer etc. as regards
  articles
• and substances for use at work. Applies to any
• person who
• designs, manufactures, imports or supplies any
  article for use at work or,
• manufactures, imports or supplies any substance
  for use at work.

21
HSWA 1974 Section 7

• General duties of all employees at work
• Section 7(a) to take care for health and safety
  of themselves and others who may be affected by
  acts or omissions and,
• Section 7(b) to co-operate with employer so as
  to enable compliance with statutory requirements.

22
HSWA 1974 Section 8

• No person to intentionally or recklessly
  interfere with or
• misuse anything provided in the interests of
  health, safety or
• welfare

23
HSWA 1974 Section 9

• Duty not to charge employees for things done or
  provided
• under specific requirements.
• Employer may not levy any charge - or permit any
  levy to be
• charged - concerning anything done or provided
  under
• statutory requirements.

24
HSWA 1974 Section 37

• Provides that where an offence shown to have been
• committed
• with consent or connivance of,
• or to have been attributable to neglect,
• on part of director, manager, secretary, etc,
  both corporate
• body and person may be prosecuted and punished
• accordingly.

25
HSWA 1974 Section 40

• Where a duty is qualified by reasonably
  practicable or
• practicable the burden is on the accused to prove
  - on a
• balance of probabilities - that it was not
  reasonably
• practicable or practicable to do more than was
  done.
• The reverse onus of proof.

26
The Management of Health and Safety at Work
Regulations 1999

• Originally implemented in 1993 as a result of EC
  Framework Directive (89/391/EEC)
• Made under powers contained in Section 15 of HSWA
  1974
• Accompanying Approved Code of Practice (approved
  under Section 16 of HSAW 1974)
• Regulations and ACoP revised in 1999

27
Health and Safety Commission (1)

• HSC established with general duty to do such
• things and make such arrangements as it considers
  
• appropriate for the general purposes of
• ensuring health, safety and welfare of persons at
  work and protecting those not at work from work
  activities
• controlling keeping and use of dangerous
  substances
• controlling emissions to atmosphere

28
Health and Safety Commission (2)

• comprises up to nine members appointed by
  Secretary of State (Department for Work and
  Pensions)
• chairman appointed by SoS and other members
  appointed from industry, trade unions, local
  authorities and others
• HSC has several advisory committees to give it
  advice on subjects such as toxic substances,
  nuclear safety etc

29
Health and Safety Executive (1)

• Statutory body working under direction and
  guidance of HSC
• (HSC may not direct HSE about enforcement in
  respect of
• any particular case).
• Main functions exercised through
• inspectorates to
• enforce legal requirements
• provide advice to employers, trade unions, etc

30
Local Authority Enforcement

• Enforcement of health and safety legislation in
  lower risk
• sectors, eg offices, shops, places of
  entertainment, allocated
• by regulations to relevant local authority.

31
Powers of Inspectors (1)

• Inspectors can
• enter premises at any reasonable time (or any
  time where there is danger)
• take a police constable where obstruction is
  anticipated
• take other people and equipment or materials onto
  premises to assist in investigations
• carry out any examinations and investigations as
  required
• require locations to be left undisturbed

32
Powers of Inspectors (2)

• take measurements, photographs and recordings
• take samples of articles or substances
• require dismantling and/or testing of articles
  and substances
• take possession of articles and substances for
  examination and use as evidence
• take statements and copies of relevant documents
• require provision of facilities to assist
  enquiries
• do anything else necessary to enable duties to be
  carried out

33
Enforcement

• Inspectors visit premises and places for two
• basic purposes
• Proactive (planned preventive) inspections
• Investigations usually in response to RIDDOR
  reports or complaints

34
Enforcement Options

• Advice (verbal or in writing)
• Improvement Notice
• Prohibition Notice
• Prosecution (summary or indictment)
• Seize, render harmless or destroy any article or
  substance considered to be cause of imminent
  danger or serious injury

35
Advice

• Where health and safety is generally well
• regulated and matters of minor concern are found,
• inspector may give advice rather than take formal
• enforcement action.
• Advice may be confirmed in writing onus placed
  on
• employer to confirm action taken.

36
Improvement Notice

• requires action to be taken to remedy a breach of
  statutory duty within a specified time period
• at least 21 days must be given during which an
  appeal to an industrial tribunal may be made
  inspector may extend term of notice
• making of an appeal suspends notice until terms
  confirmed or amended by tribunal

37
Prohibition Notice

• may be issued where inspectors opinion is that
  work activity presents risk of serious personal
  injury
• may take immediate effect (usually) or may be
  deferred
• appeal to industrial tribunal may be made within
  21 days but does not suspend the notice until
  appeal has been heard

38
Prosecution

• HSC expects that prosecution will be considered
• when it is appropriate to draw general attention
  to the need to comply with the relevant law,
• or there is judged to have been considerable harm
  arising from breach of law,
• or the gravity of offence and general record and
  approach of the offender warrants it

39
Enforcement Policy

• Basic principles
• Proportionality
• Consistency
• Transparency
• Targeting
• See HSC Enforcement Policy Statement