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EMPLOYMENT – HEALTH AND SAFETY
VICARIOUS LIABILITY - *Employer will be liable for the acts committed by
the employee in the course of his employment
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*Liability for independent contractors is more
complex -Biffa Waste Services Ltd v Maschinenfabric GmbH *Modern test, see
Lister v Hesley Hall Ltd/ Fennelly v Connex South Eastern Ltd
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HARASSMENT AND BULLYING *Protection from Harassment Act 1997
(civil liability for tort s
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26 Equality Act 2010: harassment prohibited
generally
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As such Health and Safety Executive
(HSE) was formed
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Covers all employees, except domestic workers
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Covers non-employees affected by activities carried out in
workplace
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However, Act creates criminal sanctions
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*The HSE is responsible along with enforcement officers, for enforcement and
prosecutions under the Act
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*Improvement notices: S21: inspection of opinion that person contravening
statutory provision, or has done so and likely to be repeated, then can give an
Improvement Notice to remedy contravention – cannot be less than 21 days
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*Can take effect immediately or after a certain
period
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*Withdrawal of notice: A inspector may be withdrawn at anytime before expiry of
21 days or a deferred prohibition notice
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*Effect on notice: Improvement notice suspended or withdrawn; Prohibition
notice only suspended if ET directs and only for a limited time
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Breach of a statutory duty; 2
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Absence of risk of any danger; and
4
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1
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Does not matter
that there has been no accidents
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2
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The ET will also take into account reputation of company
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Absence of risk of any danger - South Surbiton Co-operative Society v
Wilcox ((even though the risk was minimal it was an absolute liability, so had to
fix the tile)/CF Associate Dairies Ltd v Hartley
4
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*TC Harrison Ltd (Newcastle-upon-Lyme) Ltd v Ramsey
*Financial difficulties are no defence – otherwise a firm could have an advantage
over competitors, keeping down prices and undercutting them, but not following
requirements
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* Factors to consider: efforts to remedy breach; strength of appeal;
was breach trivial (South Surbiton Co-Operative Society)
*Failure to comply with order - Criminal offence – no defence that
employer took reasonable practicable steps to comply with order
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*ET only applies to civil matters
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*Failure = contempt of court
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*Consequences for breach: Up to 6 months custodial/ £20,000 fine
(Magistrates Court)/ Up to 2 yrs/ unlimited fine (Crown Court)
DUTIES OWED BY THE EMPLOYER - Section 2 – duties are owed by
all employers and extend to premises over which e’yer has actual control
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Not absolute –
reasonably practicable
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*Requirement to have a written safety policy: S
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No guidance as to content – needs to
be prepared and revised
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Should lay out responsibility of all employees, e
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Board of Directors
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This is an active duty
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3: Covers lawful visitors and
those outside his premises
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* The extent of this duty is conduct
undertakings
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DUTIES OF EMPLOYEES - S
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* S
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Covers intentional and reckless interference/
misuse
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44 Right not to suffer a
detriment in health and safety cases
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100 Right not to be dismissed
unfairly in certain circumstances involving health and safety cases
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Management of Health and Safety at work Regulations 1999
(as amended); Workplace (Health, Safety and Welfare) Regulations 1992;
Provision and Use of Work Regulations 1998; Personal Protective
Equipment at Work Regulations 1992; Manual Handling Operative
Regulations 1992; Health and Safety (Digital Screen Equipment)
Regulations 1992
PENALTY OF BREACH - *Individual or organisations can be charged
and convicted
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*Armour v Skeen: failure of senior
management in H&S policy implementation
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*Reverse burden of proof - Under s
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*Balance of probabilities: civil
standard
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Then burden passes to
accused that they have done all which was reasonably practicable to avoid
risk
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*An offence
requires: Manages or organises its activities which causes death, in a manner
which amounts to a gross breach of duty of care; Way in which senior
managers manage or organise substantial activities must be a substantial
element of the breach; A breach occurs when it falls below what can
reasonably be expected or organisation in the circumstances
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This is rare!



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