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As companies and directors increasingly face fines
and imprisonment, health and safety is a management
area you cannot afford to ignore.
We are able to provide you with up-to-date practical
advice on all the regulations and Codes of Practice
to help you ensure that your employees have a health
and safety working environment and to keep you outside
the arena of legal enforcement.
We can help you with:
- Management of health and safety
- Policies and assessments
- Defending you or your company against civil claims
or prosecutions in the Magistrates Court
We can advise you on the proper involvement of trade
union or employee health and safety representatives.
If you have any concerns please telephone or call in
and see us for the cost of an audit. This will probably
be very much less expensive than you anticipate. We
can prevent you breaching your statutory obligations.
Below is set out a brief resume of how health and safety
law affects you.
The health and safety regulations
Six directives from Europe became effective on 1 January
1993. The UK, in common with other EU states, had to
introduce regulations to make the directives effective,
leading to six sets of regulations (the "6 Pack"):
- The Management of Health and Safety at Work Regulations("The management regs")
- The Manual Handling Operations Regulations ("The manual handling regs")
- The Workplace (Health, Safety and Welfare) Regulations ("The workplace regs")
- The Provision and Use of work Equipment Regulations ("The equipment regs")
- The Personal Protective Equipment at Work Regulations ("The PPE regs")
- The Health and Safety (Display Screen Equipment) Regulations ("The DSE regs")
The management of health and
safety at work regulations
These regulations supplement the Health and Safety at
Work Act 1974. The first principle is that work should
be adapted to the worker, not the worker adapted to
the work.
Risk assessments
Employers must conduct risk assessments in respect of
employees whilst at work. Risk assessments must be carried
out by "competent persons". The assessments
must be "suitable and sufficient". They must:
-
Enable employers to "identify and prioritise"
the measures that need to be taken to comply with the
relevant statutory provisions.
-
Be appropriate "to the nature of the work and such
that it remains valid for a reasonable period of time".
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Be reviewed when circumstances change.
-
Record any significant findings (where there are five
or more employees) of assessments and the identity of
any groups of employees especially at risk.
-
After a risk assessment employers should put preventative
measures into effect. The code of practice to the regulations
says measures should aim to:
-
If possible avoid a risk.
-
Combat risks at source.
-
Wherever possible adapt the work to the individual.
-
Take advantage of technological and technical progress.
-
Ensure that risk prevention measures form part of a
coherent policy, giving priority to measures that affect
the whole workplace.
-
Make sure that workers understand what they need to
do.
-
Develop an active health and safety culture affecting
the organisation as a whole.
-
Employers are required to establish procedures for serious
and imminent danger.
Training
The regulations require adequate health and safety training
on:
- Recruitment.
- Being exposed to new risks because of transfer or change
of responsibilities.
- The introduction of new equipment, new technology or
new or changed systems of work.
- The training must take place during working hours and
refresher training should be provided where appropriate.
Information
Employees should be provided with information on:
- Risks to health and safety identified by an assessment.
-
Preventative and protective measures.
-
Procedures for serious and imminent danger.
-
Competent persons responsible for evacuation procedures.
-
Risks notified by other employees on the same work site.
Consultation
- Employers should consult, in good time, with health
and safety representatives on:
-
Introduction of any measure which may substantially
affect health and safety.
-
Arrangements for appointing competent persons.
- Any health and safety information the employer is required
to provide to employees.
- Planning and organisation of any health and safety training.
- Health and safety consequences for employees of the
introduction of new technologies.
- Employers must provide such facilities and assistance
as safety representatives reasonably require for carrying
out their regulatory functions.
Employees' duties
Employees have duties to:
- Take reasonable care for the health and safety of themselves.
-
Co-operate with the employer in the performance of any
statutory duty.
They must also:
- Comply with any duties imposed by the regulations.
- Use machinery and equipment in accordance with their
statutory duties.
- Inform the employer, or any fellow employees, of any
situation which might reasonably be considered to represent
a serious and imminent danger to health and safety or
to represent a shortcoming in the employer's protection
arrangements for health and safety.
The provision and use of work equipment
regulations
There are strict rules governing work equipment and the
steps that employers must take to protect employees from
accidents involving work equipment, including the assessment
of risk, for the provision of effective controls and guarding
arrangements.
The personal protective equipment
(PPE) at work regulations
Employers are obliged to protect the workforce by effective
controls and systems of work. They must check to see if
a job can be done in a different way which will render
it safe and only if this is not possible should PPE be
considered. If PPE is necessary, the employer must carry
out a proper assessment of the job requirements, the person
who is doing it and the PPE necessary. The regulations
include such equipment as eye protection, protective clothing
and protective footwear. They also deal with the cost
of providing this equipment.
The manual handling operations
regulations
This requires a risk assessment of all jobs involving
manual lifting. First, the regulations require consideration
of avoiding a task altogether if possible. Only if this
is not possible should the employer devise a safe way
of doing it.
The workplace (health, safety and
welfare) regulations
The workplace regulations deal with specific issues
that employers should address to ensure that the workplace
is safe. There are requirements regarding:
- Effective and suitable ventilation.
- Reasonable temperature whilst working indoors.
- Sufficient floor, height and unoccupied space.
- Adequate work stations and seating arrangements.
All these factors can reduce stress and are issues that
employers should address in a risk assessment.
Negligence
The law of negligence - the "common law" -
is largely judge made. Judges refer to previously decided
cases. Judges have ruled that an employer's duty is
to provide:
- A safe place of work.
- Safe plant and equipment.
- A safe system of work.
- Adequate supervision and instruction.
- Competent fellow workers.
When things go wrong
Accidents can happen because of chance or bad luck.
But a vast majority of accidents are foreseeable and
occur because employers fail to take adequate steps
to prevent them.
Most injuries from accidents at work are minor. Tragically,
some are fatal. All injuries result in some trauma to
the injured person and very often financial loss as
well.
It is always worth taking advice if you have been in
an accident at work which has resulted in injury. Even
if you think you are partly to blame, you can still
be awarded compensation.
If a claim for compensation is pursued it is unlikely
to reach court. Over 90% are settled by agreement before
trial.
Time limits
Court proceedings in personal injury claims must be
started within three years of the date of an accident.
After this, the case will be out of time.
Although the vast majority of claims relate to accidents,
there are increasing numbers of disease claims such
as asbestos-related disease, dermatitis and repetitive
strain injuries.
In disease cases, proceedings must be commenced within
three years of the date when the injured person knew,
or should have known, that the condition was caused
as a consequence of their work.
Often this 'knowledge' will not arise until medical
advice has been given. But it is far safer to ensure
that claims are submitted as soon as the worker experiences
any symptom or discomfort which they consider may be
due to the job that they have been doing. If an accident
happened over three years ago, or a condition was diagnosed
over three years ago, then seek specialist legal advice
immediately.
Never wait to see if an injury becomes disabling.
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Accidents at work
The first steps
Ensure that the accident is recorded as soon as possible.
Ensure that the record is absolutely accurate and gives
a correct description of what happened. If a claim comes
to court, much can turn on the version of events contained
in the company's records. Courts are impressed by records
made shortly after an accident when events were fresh.
Follow these guides:
- Prepare a short but accurate statement as soon as possible
after the event.
- Obtain the names and addresses of all eye-witnesses
so that statements can be taken at a later date. Statements
will be obtained later but it can be very helpful if
early statements - they needn't be anything fancy -
are taken from witnesses at the time.
- Witnesses to the circumstances: are there any people
who can vouch for the fact that the danger has been
in existence for some time? If so, their names and home
addresses should also be obtained for later use.
- Previous similar accidents? Sometimes employers will
argue that they could not have foreseen an accident
happening or did not have any reasonable opportunity
to take steps to prevent it. If there is evidence of
previous incidents which the employer did not act upon,
these arguments can be successfully countered.
- Photographs are always helpful, although this may be
difficult if permission is needed before photographs
can be taken.
- Sketches, either completed by the injured person or
by the union representative or witnesses, can be vital
for prompt, early assessment of the situation.
- It is essential to seek legal assistance as soon as
possible after the accident.
Pursuing a claim - Thompsons' procedure
Once Thompsons is instructed, the case will be
allocated to one of our teams of highly-experienced compensation
claims lawyers.
We will then contact the injured person and arrange to
take a detailed account of the accident and information
relating to financial losses. We will also want details
of other previous similar accidents.
At the same time we will write to witnesses, asking
them to provide a statement to assist in the preparation
of the case. We will want to write to witnesses at their
home addresses, rather than at the company. Confidentiality
is very important and we do not want the company to
be in receipt of letters that are sent for the purpose
of investigation.
Medical examinations Once
we have decided that legal proceedings are more likely
to succeed than fail, a medical examination is arranged.
The doctor instructed will be highly experienced in medico-legal
work and will usually be different from the treating doctor.
Unfortunately it is sometimes necessary to wait many months
before the doctor can see the injured person. We will
do whatever we can to minimise this delay.
It is important that the doctor has a full account of
the injuries, treatments, and the extent to which the
injuries continue to cause problems.
Court proceedings Once we
have authority we will start court proceedings straightaway.
At this stage the company's solicitors and their insurers
become involved and we then take steps to prepare the
case for trial. It is the job of the other side's solicitor
to protect the company's position and make our job as
difficult as possible. This usually means that we have
to make court applications which adds to the length of
time that it takes for the case to come to trial. During
this period the client may receive correspondence from
us asking him or her to do a number of things, such as:
- Attend another medical examination - usually for the
other side's doctor. The other side will (in England
and Wales) and may (in Scotland) have seen the medical
evidence and may not like it. They may want to obtain
a report of their own and may ask for an examination
by their doctor. We will give advice about this and
the other side will pay any losses or expenses for attending
the examination. The court also has the power to order
a joint medical examination on behalf of both sides.
- Answer certain questions relating to the proceedings
which may not have been covered before. In these circumstances,
we may need to send one or more questionnaires which
we need to be completed and returned promptly. Once
proceedings have begun there is a strict timetable by
which we have to comply.
- Sign and return statements. Again, these need to be
dealt with promptly.
- Attend meetings to discuss progress in the case.
Offers
At any stage during proceedings (and sometimes before)
the other side may put forward an offer to settle the
case. In every case, we look at the offer on its merits
and give the appropriate advice.
It is commonly thought that the first offer is usually
low and should be refused. This is not true. Sometimes
the other side wish to settle the case at an early stage
and put forward a realistic offer to begin with. Sometimes
we receive several offers and advise refusal of them all.
We may also put forward offers to settle the case. The
other side's lawyers will then respond.
Payments into court: England
and Wales Once proceedings are under way the
other side may make a 'Payment into Court'. This means
that a sum of money is lodged at court and the judge will
not be told about it. If the judge finds the other side
at fault and values the case at less than the 'Payment
In', then the lesser sum is received, the balance is repaid
to the other side and there are also negative cost consequences.
If it is more, then the sum paid in is received plus the
balance on top.
Tenders: Scotland A tender
or formal offer can be made and although there is no
actual payment into court of money the effect is the
same. If the judge doesn't award more than the tender
the lesser sum is received and there are cost consequences.
The hearing At the trial
the client will be asked to give evidence about the
accident and about his or her injuries. They will be
cross-examined. It will also be necessary to ask the
witnesses to give their evidence and they will also
be cross-examined. We will advise on trial procedures
and how to handle cross-examination.
What the court has to decide
A court has to consider if the employer took reasonable
care for the employee's safety and if the employee was
reasonable in what they did.
What is 'reasonable' is different in each case. What may
be reasonable for one case may not be reasonable for another.
Each case is decided on its own facts.
The employer does not have to take absolute care. But
does have to guard against accidents that are reasonably
foreseeable. The more severe the foreseeable outcome,
the greater the steps the employer should have taken to
satisfy the duty of care.
It is possible for the injured person to be wholly or
partly blamed themselves. This is called "contributory
negligence" - a failure on the part of the individual
to take reasonable care for their own safety.
Contributory negligence is expressed as a percentage.
If a person is found 25% to blame, they will only receive
75p out of every £1 compensation that they would
have received had they not been partly at fault. This
means that the employee can recover some compensation
even if they were partly to blame for their own injuries.
Vicarious liability Employers
are responsible for the actions of their employees.
This is known as "vicarious liability". There
is some limit on the liability.
Employers will not be responsible if a fellow worker
who caused an accident or injury is "off on a frolic
of their own". For example, if they are doing something
which has nothing to do with work.
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