Health And Safety Law

A Straightforward Guide

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• Publisher: Straightforward Publishing Digital
• Year: 2015
• ISBN:
  9781847166326
• Topic: Derecho
• Subtopic: Derecho laboral y del empleo

Health and Safety, The Essential Handbook for Businesses Large or Small by Samantha Walker is the first book of its kind targeting small to medium business. This book will prove invaluable as a complete handbook for existing and developing business and will guide managers in those businesses and assist them in ensuring that a comprehensive health and safety strategy is in place.

Chapter 1

Companies, Structures and Employment Status

 

Before you start doing anything you need to know what type of legal status applies to you as an individual or a company and those that undertake work for you on your behalf, as there are numerous different types of employment status such as sole trader, self-employed, partnership, limited company, employee, and this can affect your and other people’s responsibilities under health and safety law.

You can get advice on company structures, as with all matters relating to law and business, from an accountant or solicitor as appropriate, on the specific legal structure that would suit you best for your company. There may well be pros and cons associated with the legal structure that you choose.

In brief, to be a partner, sole trader or a member of a limited liability partnership as an individual, you must be self-employed and register as such with H M Revenue and Customs –which means that any work you do for this particular business is done on a self-employed basis. As a sole trader you take the responsibilities for health and safety yourself; in a partnership the two or more persons involved would share these duties. Unlike a limited company a partnership has no legal existence distinct from the partners themselves. Limited companies exist in their own right, therefore the companies’ finances are separate from the person’s finances. Private and public limited companies must be registered at Companies House and must have a least one Director (two if a PLC) and a Company Secretary who may also be shareholders. However, from October 2008 it hasn’t been be necessary for private limited companies to have a Company Secretary.

The name of a limited company must end with the word ‘limited’ or ‘ltd’. A limited company can commit a health and safety breach and it will be the company, in general, who will be prosecuted if proceedings are taken against it. Directors, managers, employees and others can all be liable as individuals under health and safety law. Company Directors can be disqualified through the Courts under certain circumstances. A company also need not have any employees. If a company changes its name, this does not affect any legal proceedings made against it in the former name. Trading names have no legal status and the real name and a specified address (not a PO Box number) must be used on correspondence and letters. This information must also be displayed at every place of business where the company operates. A partnership cannot be prosecuted as it has no legal ‘personality’ in terms of criminal law- the individual partners are therefore potentially jointly liable for an offence. Partnerships shouldn’t be confused with limited liability partnerships, though, which do have a legal personality. Limited liability partnerships must also register with Companies House. In certain circumstances, companies in insolvency procedures may also be liable for prosecution for a health and safety offence. Once a company dissolves it ceases to exist and therefore cannot be prosecuted for a health and safety offence.

So, once you are clear on the legal structure, you can then work out whether those that you give work to are direct employees or not, as more legislation may be applicable to direct employees although there are still many duties owed to the self-employed and contractors who may work for you. In terms of health and safety, employment status is not always clear-cut. Indicators of a contract of employment would include 1) whether the employer has the power to select and appoint the individual, and to dismiss or suspend them, along with paying their wages and holiday and sick pay, 2) whether the employer supplies the tools and equipment, and fixes the times and place of work, and 3) the type of contract - even a verbal contract can stand in a court of law. Payment by job, as opposed to being on the PAYE system, may point away from employment. Look at the terms of the contract that you have with workers - it is always best to seek advice on these issues, if you are not sure.

If you employ anyone you also need to have Employers’ Liability Compulsory Insurance and this certificate must be displayed in your workplace and must obviously be renewed when it runs out to ensure continuous cover. This is to insure against injury or liability for disease to employees arising from their employment. You can be fined if you do not hold a current Employers’ Liability Insurance policy. If an employee is injured at work or even a former employee becomes ill as a result of their work whilst in your employment they may try to claim compensation if they believe that your company was responsible. The Employers’ Liability Insurance that you take out will enable you to meet the costs of compensation. Many road accidents which occur whilst employees are working for you may be covered separately by your motor insurance. Public Liability insurance covers you for claims made against you by members of the public or other businesses but not by employees. Having Public Liability Insurance is generally voluntary, depending on your business. For Employers’ Liability Compulsory Insurance you must use an authorised insurer (which you should check they are before you take out the policy.) The Financial Conduct Authority (FCA) maintains a register of authorised insurers which you can find at www.fca.gov.uk. You will have an agreement with your insurer as to the circumstances in which they will pay out. For example, the policy will cover the specific activities which relate to your business. They cannot refuse to pay purely because you have not met a legal requirement connected with the protection of an employee but this does not mean that you can forget about your legal responsibilities. If the insurer believes that you failed to meet your legal responsibilities for health and safety to your employee and this has led to the claim, they could then sue you to reclaim the loss of the money paid in compensation. Currently you must be insured for at least £5 million but most insurers offer cover for more than that. The Employers’ Liability (Compulsory Insurance) Act exempts the following employers: health service bodies, most public organisations, and some family businesses (so if all of your employees are closely related to you then it may not be needed.)

Be aware that some people who you may think of as self-employed may be considered as employees for the purposes of the Employers’ Liability Insurance and you would need to check this out with the insurer. It does depend on your contract with the ‘employee’ - normally if you deduct NI and Income tax from their wages then they will be classed as an employee, and if you supply most materials and equipment that they use, and if you control their working hours. You must tell your insurance company if you take on people who are unpaid, such as school children, or volunteers. Motor vehicle insurance will also be needed if you supply vehicles for people to use as part of their work. You must keep copies of the certificates of insurance for at least forty years as diseases can take a long time to surface. If you do not display a certificate of Employers’ Liability Insurance or refuse to make it available you can be fined, and you can also be fined for any day on which you are without this insurance.

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Chapter 2

Starting From the Beginning-The Basics That Need to Be in Place

Health and safety law has its origins in the Robens Report of 1972, which formed the basic idea for the Health and Safety at Work etc. Act 1974, which is the main piece of legislation governing health and safety law in the UK. This also introduced the idea of having an authoritative body, known as the Health and Safety Executive (HSE) which develops policy, secures compliance and enforces the law whilst aiming to protect people at work and ensure that all occupational risks are controlled properly.

Health and Safety law is enforced by Inspectors from the Health and Safety Executive or by Environmental Health Officers (EHOs) from the Local Authorities. EHOs have similar powers but they cover different types of premises to the HSE.

Like the HSE, Local Authorities enforce the laws as made by Government. There are over 400 Local Authorities with responsibilities for enforcement, so they make up a significant part of the role of the enforcer. The Local Authorities also cover food safety, and areas such as housing as well as some health and safety issues.

The HSE currently comes under the Department for Work and Pensions and is therefore accountable to Parliament for their activities and performance although they remain largely independent. Local Authorities are the principal enforcing authority in retail, sales, warehousing, catering, offices, hotels and the leisure industry, although responsibility can be transferred between HSE and Local Authorities by agreement. They also inspect each other, although I don’t think this happens very regularly! HSE deals with factories, motor vehicle repair workshops, hospitals, schools, universities, offshore gas and oil installations, farms, the movement of dangerous goods, and construction, amongst other workplaces. There is often an overlap and you may end up being visited by both enforcers! HSE carries out scientific research in conjunction with other organisations, and consults industry and the Trade Unions via consultations and committees. The HSE also includes Occupational Health Inspectors, the Nuclear Safety Directorate, and the Hazardous Installations Directorate (who deal with sites who have large quantities of hazardous chemicals) and the Laboratories (HSL) which conduct experiments and analyse evidence.

Health and safety law applies to all businesses, no matter how small, and covers all types of employees - full and part time, temporary and permanent, the self-employed, those on work experience, apprentices, charity workers, mobile workers and home workers. You will also have responsibility for any temps and casual workers brought in from agencies. If you use temps or agency workers you must tell the employment agency who hires them about the risks to that worker’s health and safety and the steps you have taken to control those risks, any necessary qualifications or skills needed to do the job, and any health surveillance that will need to be undertaken. The employment agency must then pass this information on to the worker in whatever form they feel appropriate but you must ensure that information has been received and understood so it is probably better for you to also give this information to them yourself. You need to ensure that they have understood what you have said and measures may need to be put in place if they have any special needs, especially if they do not understand the language and/or English is not their first language. Some leaflets produced by the HSE have been translated into other languages which you might find a useful aid. You have also got to protect the health and safety of the public from any risks caused by your work activities.

Health and safety Inspectors have the right to enter work premises without giving prior notice although often notice is given if it is deemed necessary. During preventative inspections they are more likely to turn up without warning to see the business as it usually operates, on a normal day. Inspectors have enforcement powers that they can use if health and safety standards are not found to be satisfactory. These include Improvement Notices, which require problems to be rectified within an agreed time period, and most often the Inspector will re-visit to check that the remedial action has been taken. Inspectors can also serve Prohibition Notices, with deferred or immediate effect, where there is deemed to be an activity or circumstance which involves, or will involve, a risk of serious injury. A Prohibition Notice means that until you have complied with the remedial action the activity will not be allowed to resume. Further information about Notices can be found in the section entitled ‘When things go wrong.’

HSE inspectors also prosecute where serious, or consistent, failings have been found. Most cases are heard by Magistrates in England and Wales, who may for serious offences impose a maximum fine of £20,000. If cases go to Crown Court there is no limit on the fine which may be imposed. Manslaughter investigations reside with the Police, although the HSE/Local Authority may work in conjunction with them to assist with specialist knowledge or with the gathering of evidence. In Scotland most cases are taken in the Sheriff’s Court either on summary procedure or on indictment procedure before a jury. There are a number of differences to be found in Scotland, namely in that Scottish HSE Inspectors do not prosecute as they do in England and Wales; instead the HSE reports to the Crown Office and Procurator Fiscal Services who decide whether or not to instigate proceedings. The reports put forward by the HSE to prosecute can be rejected.

The HSE also has Health and Safety Awareness Officers (HSAO’s) that undertake certain roles. Unlike Inspectors they do not have powers to enter your premises without your agreement and can only enter with your consent. The limited powers that they do have are to enforce certain aspects of the Employers’ Liability Compulsory Insurance legislation. They are trained staff whose role is to support the HSE’s regulatory work. They aim to provide information and will often bring free literature and leaflets with them to promote health and safety awareness. They are also there to collect information about your business which can be used by the HSE in further contact with you and to gain information about your activities and numbers of staff that can then be used should an inspector visit your business. They are not Health and Safety Inspectors and they will not give technical advice or opinions on how you are managing health and safety or your compliance with the law. They may talk to your health and safety representative, as will an Inspector, and will send a copy of any correspondence that they send to you to the representative as well. If an HSAO thinks that you need more information than they can give you, or if they think there are health and safety issues within the workplace, they may suggest that an inspector also undertakes to visit in the near future. Health and safety representatives should be given the opportunity to speak privately to the HSAO and indeed on a visit an Inspector may often request that they have a word alone with anyone that wishes to speak to them privately.

A large part of an Inspectors role is to undertake inspections (funnily enough). HSE Inspectors tend to have a specified area (such as a county) in which they work and they try to have an up-to-date list of premises in that area that they try to visit. Many inspections also take place in response to a complaint. A company with a history of non-compliance may be visited more frequently than other workplaces to ensure that workers are protected.

Starting up

Starting up a business or starting to implement health and safety law in your business can seem at first quite a laborious and confusing task. Where do you start? There are certain components that you need to have in place as a small to medium enterprise, or indeed any business, to ensure that you are complying with health and safety law.

Firstly, you must employ one or more Competent persons to provide health and safety assistance. The competent person should ideally be appointed from within your workplace, as they are technically always on hand, or it can be yourself as the duty holder if you think you have enough knowledge or time or you have few employees. Alternatively you can use external services such as a consultancy. The employee(s) will need to be given time, resources and training to enable them to provide this service and this needs to be provided by the company. External services can also help with ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• Chapter 1 - Company Structures and Employment Status
• Chapter 2 - Starting From the Beginning: The Basics that Need to Be in Place
• Chapter 3 - Health and Safety Law
• Chapter 4 - From Asbestos to Zoonoses: General Health and Safety Topics
• Chapter 5 - Investigating and Reporting Accidents
• Chapter 6 - Health and Safety Prosecutions
• Help and Information
• Index