MHSWR 1999

Impose a duty on employers to make a suitable and sufficient assessment of the risks to health and safety of employees and others affected by their work.

 Reg 2 requires company to have written H & S policy

 Reg 3 employers are duty bound by risk assessments. Purpose is to help the employer to determine what measures should be taken to comply with his duties under the relevant statutory provisions. Just visit the Notaries in London for more information.

 Reg 5 steps taken to ensure risk assessments carried out and the risks identified are sorted out.

 Reg 7 requires the employer to have a competent assistant in applying the provisions of H & S law, i.e. a health and safety official, where dismissal for carrying out any activities in this capacity would render the dismissal automatically unfair.

 Reg 10 every employer must give his employees comprehensive and relevant info on the risks to their health and safety identified by the assessment and the preventive and protective measures.

 Reg 13 ensures that every employer provides adequate H & S training to their employees.

 Breach of the MHSWR can lead to criminal prosecution by the HSE not civil action.

Breach of the other Regs (ie noise, COSHH etc) can lead to civil liability and possible

prosecution by the HSE.

Plan of Attack

1) S.2/3/4 HSWA 1974 (and others if relevant)

2) Regs 3/4/5 MHSWR (and others if relevant)

3) Relevant specific Regs – if breach can give rise to civil liability and/or prosecution by the

HSE.

4) Common Law – duty of care owed by employer to employee to take reasonable care of his employees’ health and safety. Duty to protect people by having a safe premises, plant and equipment and a safe system of work, inc work related stress.

5) Contractual obligations – employees may also have claims on the basis of breaches of contractual obliges (express or implied) owed by employers to employees. Eg it’s possible for an employee whose complaints of excessive stress are not properly responded to could resign and claim constructive dismissal on the basis that their employer had breached the implied duty of trust and confidence.

Also, courts have been willing to imply similar terms to those existing under common law into the contract of employment. In Walton’s and Morse v Donnington 1997, the EAT held that there was an implied term in the contract that an employer will provide and monitor for employees, so far as reasonably practicable, a working environment which is reasonably suitable for the performance by the employees of their contractual obliges. Here they held the employee had been constructively dismissed when her employers failed to provide her with a smoke free environment, they also held there had been a breach of the implied duty of trust and confidence when her employers failed to deal adequately with her problems relating to those who smoked around her.

Liability for breach of statutory duty

Even though HSWA and MHSWR expressly excludes civil actions, the majority of Regs under

the HSWA do not exclude civil actions thus they may be tried to found a civil claim if an

employer fails to comply with the Regs. To be successful in a claim for breach of statutory

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duty, an injured employee must show that the breach is actionable in civil court, duty is owed

to C by D, C’s loss is within the mischief of the legislation, D is in breach of the duty and the

breach caused the loss.

Vicarious Liability

Defined as, ‘the liability of an employer to persons injured by the wrongful acts of his

employees, if committed in the course of their employment’. From the Lister case liability

now turns on whether there was a close connection between the employee’s act and the

nature of the duties he was employed to do.

Breach of HSWA

Vast majority of breaches are remedied by verbal advice and letters issued by enforcing authorities, which are quick, informal and usually effective. More formal methods include improvement and prohibition notices and prosecution.

The HSE can issue:

 Improvement notices are usually served relating to important issues but not where imminent danger exists, e.g. requiring a safety policy risk assessment of a machine or process. The notice must state the legal requirements being broken and require the person on whom it’s served to remedy the contravention within the stated time period, which may not be less than 21 days from the date of its service.

 Prohibition notices are served where activities involve a risk of serious personal injury. Service is effected on the person carrying on or in control of the activities. Notice gives info regarding the complaint but orders the activity to stop until notice complied with. Notice can take immediate effect, or must take effect at the end of the 21 day period allowed for appeal.  Criminal prosecution against companies or its officers for contravening Regs under

HSWA, obstructing or failing to comply with any requirements imposed by inspectors, failing to comply with an improvement or prohibition notice etc. Where person found guilty of failing to discharge a duty under ss 2-6 of HSWA, he is liable on summary conviction to a fine not exceeding £20,000, or on conviction on indictment to an unlimited fine. Terms of imprisonment are also available for failing to comply with court orders, improvement notices or prohibition notices.  HSE carry out a name and shame policy, where they attract adverse publicity to the accused, forcing them to improve their heath and safety policies.

 Breach of HSWA cannot lead to civil liability.

Framework Regulations

Purpose they tell e/ers what to do to comply with the HSWA

they’re basically guides to approaching Health and Safety on a practical level

it identifies the risks, etc

the Regs are criminal as well so you’re prosecuted rather than sued

Some of the more common ones:

The Management of Health and Safety at Work Regs (MHSWR) 1999

The Noise at Work Regs 1989

The Provision and Use of Work Equipment Regs 1998

The Manual Handling Operations Regs 1992

The Control of Substances Hazardous to Health Regs 1999

The Workplace Regs 1992

For the full list and details see Appendix E p305 RB.

Regs intended to supplement the general duties imposed by HSWA 74 with more specific requirements. For more information, follow the abogados Florida blog

Austin’s conception

  • In Austin’s conception of a society there are no legal limits on the power of a sovereign. The only limits on his ability to legislate are his own morality, fear of popular rebellion etc. What about constitutions or courts? Are countries with these not legal systems. NB There is a difference between having legally unlimited power e.g. absolute monarch, and being supreme within a system e.g. British Parliament.
  • After attacking Austin’s model, Hart redefines what law is: The union of primary (rules governing standards of behaviour) and secondary (rules governing the making/changing etc of primary rules) rules. Primary rules impose duties, secondary rules confer power i.e primary deals with “actions”, secondary deals with “operations”.
  • Hart says there is a difference between being obliged and being under an obligation. Austin treats both as the same, in that a person is obliged to obey the law if he will suffer some punishment as a result. This would mean that a gunman’s order to hand over your wallet is law: plainly wrong. Equally this interpretation would mean that where a law requires a person to do something but there is no risk of punishment (e.g. if he has escaped the jurisdiction), then he is no longer under an obligation to comply- clearly wrong. Instead, “to be obliged” really just refers to a person’s motives for doing something, whereas to be “under an obligation” refers to the existence of a social rule, entailing a general demand for conformity and social pressure/sanction is applied to a non-conformant to a great extent. Only being under an obligation can come within law, not simply to be obliged.
  • What are the defects of a non-legal society (i.e. where things are merely done by social pressure, uniformity of beliefs etc)? Firstly it could only successfully exist where there is a small commune and people are able to function thus i.e. couldn’t work where social pressure is an inadequate form of coercion; Secondly social rules are not codified and therefore there would be uncertainty; Thirdly the rules would be “static” i.e. hard to change, as there are no rules governing how to create or change the rules of society. Fourthly is the inefficiency of social pressure as a means of changing the rules e.g. no method of determining if a person has broken the rules and no agency to administer the sanction. Primary rules of obligation and secondary rules of operation resolve these problems.
  • The operation by which primary laws are made and whether something is a primary law depends on the recognition of it as such by officials, judges etc. This is the rule of recognition. The rule of recognition sets out criteria by which the validity of a law can be tested. E.g. “is the council’s by-law valid? Yes. Why? Because it is made in compliance with the powers conferred on it by the minister.” This demonstrates a rule of recognition that councils only have as much power as the executive grants them. The rule of recognition is a question of fact: It exists in fact and for this reason is the “ultimate rule” as it is the rule that tests whether all others constitute laws.
  • Rule scepticism is the idea that talk of rules is a myth, since in reality the decisions of the courts (and the prediction of them) are the laws (not merely interpretation/application of the rules). Hart disagrees since without secondary rules governing the courts’ functions and powers, the courts might not exist at all, or there decisions would be indistinguishable from those of ordinary citizens. Therefore it makes no sense to talk of the courts as being all-powerful in this way.
  • Kelsen views laws as instructions to officials to do X in Y circumstances.

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