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

5

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