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NEBOSH National Diploma | Unit A

C O N T E N T S

Element Title Page A7 Principles of Health and Safety Law INTRODUCTION............................................................................................................................................... 7-2

SOURCES AND TYPES OF LAW ......................................................................................................................... 7-3 STATUTE LAW............................................................................................................................................................ 7-3 COMMON LAW ........................................................................................................................................................... 7-4 CRIMINAL LAW........................................................................................................................................................... 7-5 CIVIL LAW ................................................................................................................................................................ 7-5 BURDEN OF PROOF ..................................................................................................................................................... 7-6 LAW OF CONTRACT ..................................................................................................................................................... 7-6 EMPLOYMENT LAW IN RELATION TO HEALTH AND SAFETY...................................................................................................... 7-9 DISCRIMINATION...................................................................................................................................................... 7-13 REVISION QUESTIONS................................................................................................................................................ 7-21

ABSOLUTE AND QUALIFIED DUTIES.............................................................................................................. 7-22 THE CONCEPT OF ABSOLUTE AND QUALIFIED DUTIES ......................................................................................................... 7-22 DEFINITION OF TERMS............................................................................................................................................... 7-22 REVISION QUESTION ................................................................................................................................................. 7-24

ROLE OF THE EUROPEAN UNION ................................................................................................................... 7-25 INFLUENCE AND ROLE OF THE EUROPEAN UNION REGARDING UK HEALTH AND SAFETY LEGISLATION............................................... 7-25 COMPOSITION AND ROLES OF THE MAIN INSTITUTIONS ...................................................................................................... 7-26 INSTRUMENTS IN EU LAW ........................................................................................................................................... 7-30 DIRECTIVES ............................................................................................................................................................ 7-30 THE EUROPEAN COURT OF JUSTICE ............................................................................................................................... 7-35 REVISION QUESTIONS................................................................................................................................................ 7-37

UK LEGISLATIVE FRAMEWORK...................................................................................................................... 7-38 STATUS AND PROCEDURE FOR MAKING UK ACTS OF PARLIAMENT, REGULATIONS AND ORDERS ...................................................... 7-38 USE OF SOCIO-TECHNICAL COST-BENEFIT ANALYSIS IN THE ECONOMIC ASSESSMENT OF PROPOSED LEGISLATIVE/REGULATORY CHANGE . 7-41 REVISION QUESTIONS................................................................................................................................................ 7-43

STRUCTURE OF THE COURTS ......................................................................................................................... 7-44 FUNCTIONS, JURISDICTION AND POWERS OF THE COURTS AND TRIBUNALS ............................................................................. 7-44 BASIC PROCEDURES FOR PROSECUTIONS AND CIVIL ACTIONS............................................................................................... 7-50 PROCEDURES OF EMPLOYMENT TRIBUNALS IN MATTERS OF HEALTH AND SAFETY....................................................................... 7-53 RIGHTS AND RESPONSIBILITIES OF ACCUSED PARTIES AND WITNESSES................................................................................... 7-55 THE APPEALS SYSTEM ................................................................................................................................................ 7-56 REVISION QUESTIONS................................................................................................................................................ 7-57

ENFORCEMENT OF HEALTH AND SAFETY LAW............................................................................................... 7-58 AUTHORITIES EMPOWERED TO ENFORCE HEALTH AND SAFETY LEGISLATION ............................................................................ 7-58 DIVISION OF RESPONSIBILITIES BETWEEN ENFORCING AUTHORITIES ..................................................................................... 7-58 POWERS OF ENFORCING AUTHORITIES AND THEIR INSPECTORS ............................................................................................ 7-60 OBLIGATIONS OF ENFORCING OFFICERS ......................................................................................................................... 7-62 OFFENCES AND MAXIMUM PENALTIES UNDER THE LAW ....................................................................................................... 7-63 OPTIONS FOR ENFORCEMENT ACTION ............................................................................................................................ 7-64 IMPLICATIONS OF SECTIONS 36 AND 37 OF HSWA AND MHSW REGULATION 21 ....................................................................... 7-68 APPLICATION OF MANSLAUGHTER AND CORPORATE MANSLAUGHTER TO WORK-RELATED INCIDENTS............................................... 7-71 REVISION QUESTIONS................................................................................................................................................ 7-76

SUMMARY ...................................................................................................................................................... 7-77

NEBOSH National Diploma - Unit A | Managing Health and Safety

© RRC Training Element A7 | Principles of Health and Safety Law 7-1

NEBOSH National Diploma | Unit A

Element A7 | Principles of Health and Safety Law

Learning Outcomes On completion of this element, you should be able to:

Describe the sources and types of law in force in the UK relevant to health and safety.

Explain the concept of absolute and qualified duties in relation to health and safety legislation.

Outline the influence and role of the European Union on UK health and safety legislation.

Describe the status and procedure for the creation of UK Acts and Regulations.

Describe the structure and functions of courts and related institutions in the UK.

Describe the responsibilities and powers of enforcing agencies and officers and explain the range of options related to enforcement action, their implications and appeal procedures.

Unit 7:


INTRODUCTION This element must be studied in conjunction with the online RRC Health and Safety Law and Case Law Guide, where you will find details of cases and Acts and Regulations mentioned in the course material - log in to RRC’s support website at www.rrc.co.uk to access this important resource.

You should note that the Diploma syllabus contains references to recommended prior learning (RPL). These are highlighted in blue and red in the NEBOSH Diploma Guide. In most cases, RPL will have been covered in a suitable lower level course such as the NEBOSH National General Certificate (Unit NGC1 and Unit NGC2). It is important for you to remember that RPL material is examinable, and has indeed featured in examinations, so you are expected to be familiar with it. In accordance with NEBOSH guidelines, and to reduce wholesale and unnecessary duplication, some RPL content may not be repeated in the RRC Diploma course notes, although some aspects may be developed further. To facilitate revision of RPL material, you are provided with an electronic copy of the RRC Unit NGC1 and Unit NGC2 course notes. Please note that the recommended minimum hours of study for each element do not include recommended prior learning.

RPL content relating to this Element may be found in Element 1 of Unit NGC1.

7-2 Element A7 | Principles of Health and Safety Law © RRC Training


SOURCES AND TYPES OF LAW Law is a collection of rules designed to regulate and control the conduct of citizens, laid down by those in authority and enforced by its officials. Our present-day laws have evolved from a number of sources, but there are two primary sources of law: statute law and common law.

Statute Law Statute law (otherwise known as “legislation”) is written law produced through the parliamentary process. Statutes (Acts of Parliament) supersede all other forms of law, and only Parliament can make, modify, revoke or amend statutes.

Acts of Parliament Acts of Parliament (otherwise known as “statutes”) begin their life as Bills and go through several readings in the Houses of Parliament before finally becoming Acts. The process is described in detail later in this element. An example is the Health and Safety at Work, etc. Act 1974.

Due to the supremacy of Parliament, the authority of Acts of Parliament cannot be challenged in the courts.

Regulations Regulations are a class of statutory instrument, one of several types of delegated legislation made under the auspices of an Act of Parliament. Parliament has limited time and, apparently, a great deal to do, so delegation is a practical solution.

Examples of regulations are the many you will encounter during your studies that have been made under the enabling provisions of the Health and Safety at Work, etc. Act 1974 (HSWA), e.g. Control of Substances Hazardous to Health Regulations 2002 (COSHH), Control of Noise at Work Regulations 2005 (CNAWR). HSWA is a statute that delegates to a government department the power of creating subordinate legislation (i.e. regulations).

Although, because of the supremacy of Parliament, no-one can challenge the authority of an Act of Parliament in the courts, it is possible to question the validity of delegated legislation. This is because the minister to whom the power to make legislation was delegated may have exceeded his authority, i.e. acted ultra vires ("beyond the powers"), in which case the court can declare the regulation(s) void.

Regulations are often supported by Approved Codes of Practice. These give detailed guidance on what constitutes compliance with the law in specific areas. These are described in Element A8.

European Directives and Regulations The EU has a major influence on UK health and safety law. Many of the recent regulations have originated as a result of the United Kingdom's membership of the European Union.

The Council of the European Union (formerly Council of Ministers) may issue regulations, directives and decisions, make recommendations and give opinions.



A directive states the objective to be achieved but permits each member state to implement it through its own legislative system, by either introducing new legislation or modifying existing legislation. The UK meets this obligation in respect of occupational health and safety requirements usually by modifying or introducing new regulations made under HSWA.

The Management of Health and Safety at Work Regulations 1999 were created as a result of the 1989 Framework Directive.

A regulation applies directly to member states without being assimilated into national laws. Such regulations are rarely used.

Common Law Common law originates from judicial decisions based on custom and practice. The principle on which a former decision was made is thus binding on all subsequent cases of a similar nature. The advantage of this system of law is that decisions are based on practical experience. The disadvantage is that, until a case comes before a judge, the law is uncertain.

Nature and Development The term 'common law' means the body of accumulated rules which is based on the decisions of the courts over many years. For this reason, it is sometimes called “case law” or judge-made law. Case law is founded on the doctrine of judicial precedent, i.e. previous decisions made by judges have a certain authority in the legal system. Its principles and doctrines are recorded in the various Law Reports, an example of which is the All England Reports (All ER). It is a self-endorsing process which is perpetuated by previous binding cases and also by the interpretation of legislation.

Each judgment (which comprises a speech) contains the judge's enunciation of the facts and will include the following important features:

• Ratio Decidendi - the Reason for the Decision

A statement of law based on an examination of the facts and the legal issues surrounding them. This is the most important part of a judgment and contains the actual binding precedent.

• Obiter Dicta - Words said By The Way

These may contain a statement about the law which is not based on the facts of the case under review and which will not therefore be part of the decision. This is often held to be of persuasive authority.

The doctrine of precedent requires an inferior court to follow the judgment of a higher court and ensures consistent application of the law. This will become clearer when we examine the hierarchical structure of the courts in a later section.

Judicial Precedent We have established that the previous decisions made by judges, termed "precedents", have a certain legal authority. Judicial precedent can be defined as:

"a decision of court to which authority is attached".



Judicial decisions have at all times enjoyed high authority as indications of the law because, in the social organisation of states, judges occupy high status and issues of importance frequently come before them. Precedent not only affects the growth of the law, but is itself one of the material sources of the law.

To say that a previous case is a "binding decision or precedent" means that the principle upon which the decision is made is binding in a subsequent case which is based upon similar facts.

A precedent may be authoritative or persuasive.

• Authoritative precedents are decisions which judges are bound to follow - there is no choice in the matter, e.g. a lower court is bound by a previous decision of a higher court.

• Persuasive precedents are decisions which are not binding upon a court, but to which the judge will attach some weight, e.g. decisions given by superior courts in Commonwealth countries will be treated with respect in the English High Court.

Criminal Law

Purpose A crime is an offence against the state and the aim of prosecution is to impose punishment, perhaps a fine or a prison sentence. What behaviour constitutes a criminal offence is largely dependent on Parliament and can therefore be influenced by political concerns. Prosecutions are brought by officials such as the Crown Prosecution Service (England), the Procurator-Fiscal (Scotland), the Director of Public Prosecutions (Northern Ireland) or, more importantly in relation to health and safety offences, the Health and Safety Executive and the local authorities.

Sanctions Criminal prosecutions brought by individuals are rare. As we noted above, the main sanctions of a criminal court are fines and imprisonment. These are intended to punish, to deter and to reform, but not to compensate the injured party.

Civil Law

Purpose A civil action is between individuals, with one party initiating proceedings against another. The aim is for the claimant (formerly the 'plaintiff') to seek restitution for a wrongdoing from the defendant.

Types of Remedy The remedy sought may be financial compensation (damages), or an injunction (court order) to prevent the defendant perpetrating the wrongdoing (an injunction to prevent nuisance arising from noise, for example).



Burden of Proof

Difference Between Criminal and Civil Cases The burden of proving a criminal charge is normally on the prosecution and it must be proved beyond reasonable doubt that a person committed an offence. This means the judge, jury or magistrates must be sure that the case is proven. This is not the case for most health and safety offences (see the discussion on the effect of Section 40 of HSWA on criminal proceedings later in this element).

A civil case must be proved on the balance of probabilities, which is a lower degree of proof than the criminal requirement of "beyond reasonable doubt". This means that in the opinion of the judge the evidence favours either the defendant or the claimant.

Law of Contract

Definition of Contract The whole essence of business life is the making of contracts - contracts to perform work, contracts to buy and sell, contracts to make something, or to employ someone, or to use something. We must therefore know what a contract is, and when we have one.

A contract is an agreement between two or more people. Every contract is an agreement, but not every agreement is a contract. Say two people agree about something to be done; they are called 'the parties'. Firstly, the subject of their agreement may be such that neither of them has the remotest intention that any legal consequences should flow from it. For example, you invite someone to dinner and he says: "Yes, I would love to come". You have an agreement, but if he just does not turn up, neither of you would expect to hurry round to court and sue for the cost of the wasted food! So the first essential of a contract is that the parties should intend their agreement to have legal consequences.

Secondly, the agreement reached may have certain things about it which make it such that the law will not enforce it. In other words, although it is a contract, it is not a valid contract.

Principles of the Law of Contract and Their Application to Health and Safety Issues There are many types of contract (e.g. simple, specialty) and different rules apply in each case. We will consider only simple contracts here. A valid simple contract that the law will recognise and enforce must have the following essential features:

• Agreement – between the parties, or a meeting of minds (consensus ad idem).

• Consideration – something of value (though not necessarily adequate) must be given in exchange for a promise.

• Legal relations – there must be an intention to create legal relations; that is, that there will be legal consequences.

• Legal capacity – the parties must have legal capacity to contract, e.g. persons must be over 18 years of age, of sound mind, not drunken, etc. This is to protect the more vulnerable people in society.



• No illegal circumstances – there must be no circumstances surrounding the contract which make it unenforceable, void or illegal.

• Form of contract – most contracts are equally valid whether they are verbal or written (although it is more difficult to prove the details of a verbal contract).

• Simple contracts – the limitation period for simple contracts is six years; that is the claimant can only pursue legal action for failure to fulfil a simple contract up to six years from the date that he could have brought such an action. There is normally no legal remedy available after that period.

Most contracts can be broken down into a number of constituent parts – promises to do something, or to abstain from doing something else; statements of fact or opinion; assurances of quality, quantity or performance. However, it is rare for all the terms of a contract to be written down or agreed between the parties. Certain things are too obvious to need mentioning.

Relationship Between Producer and Vendor A producer is one who produces an article for use whereas a vendor is one who sells. The producer therefore supplies the vendor with the article for sale. The producer must ensure that the article complies with relevant legislation and standards and is "fit for purpose". Any person injured due to a defective product can sue the producer.

Manufacturers/producers of products owe a duty of care to persons affected by the product both in the tort of negligence and in the requirements of the Consumer Protection Act 1987. The latter does not require the claimant to prove negligence.

Relationship Between Vendor and Consumer A consumer is a user of an article or a purchaser of goods or services. The vendor neither amends nor makes a product but merely sells it to the consumer. The vendor, however, may be liable in tort if he/she is under a duty to inspect the goods and fails to do so. For example, in Donoghue v. Stevenson (1932), the café owner could not have been expected to inspect the ginger beer before selling it (the bottle was opaque). However, a second-hand car dealer would be expected to identify a defect which rendered a car dangerous.

Relationship Between Client and Contractor A client is a person using the services of a professional person, e.g. lawyer, architect, social worker. A contractor is an undertaker of a contract (especially for building to specified plans). If a client appoints a contractor to do work then each party will owe a duty of care to the other. The rules of the torts of negligence and breach of statutory duty (see Element A9) will cover such events.

The client has a responsibility to appoint a competent contractor. This can be achieved by checking qualifications, experience, reputation as well as membership of professional bodies, as appropriate.

Certain construction activities are covered by the Construction (Design and Management) Regulations 2007. For example, under Regulation 9, the client has a duty to ensure that there are suitable arrangements for the management of the construction project by all duty holders, and that these arrangements are maintained and reviewed throughout the project. Under Regulation 10, there are specific Client duties to provide pre-construction information to contractors and others.



Similarly, the contractor has specific statutory duties under CDM. For example, under Regulation 22 the principal contractor has to plan, manage and monitor the construction phase, which specifically includes things such as taking reasonable steps to ensure that only authorised persons are allowed access to the construction site.

Exclusion Clauses and the Effect of the Unfair Contract Terms Act 1977 An exclusion clause is a clause which is aimed at excluding or exempting or reducing the seller's liability for failure to perform his part of the contract as promised.

The Unfair Contract Terms Act 1977 applies to all contracts and it extends to the use of contract terms to exclude or limit liability for negligence. The Act attempts to close any loopholes in its provisions by:

• Preventing evasion by means of secondary contracts.

• Outlawing restrictive or onerous conditions in contracts.

• Preventing people avoiding its provisions or prejudicing the rights of people who seek to pursue remedies.

The Unfair Contract Terms Act 1977 has a great impact on what commercial concerns or businesses can include in their agreements. It introduces the following:

• A distinction between contracts, where one of the parties "is in the course of a business" and the other is a consumer (i.e. person not acting in the course of a business).

• A distinction between a party seeking to rely on its own standard written terms of business, and reliance on terms which have been separately negotiated.

• The concept that terms excluding or restricting liability should be enforceable only if they are reasonable in all the circumstances.

The Act ensures that a person cannot by means of any term of a contract, exclude or restrict his liability for death or personal injury resulting from negligence. Volenti non fit injuria (voluntary acceptance of risk) does not apply. In the case of other types of loss, or damage, he can exclude or restrict his liability for negligence only insofar as is reasonable.

The guidelines for the application of the test for reasonableness have probably had the greatest impact.

They are included in Schedule 2 and are used if any of the following appear to be relevant:

• The strength of the bargaining positions of the parties relative to one another, taking into account alternative means by which the customer's requirements could have been met. (This effectively will favour the party with the weaker bargaining power.)

• Whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term.

• Whether the customer knew or ought reasonably to have known of the existence or extent of the term (and so could have acted to protect himself, e.g. by insurance).

• Where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable.



• Whether the goods were manufactured, processed or adapted to the special order of the customer.

Other criteria which the court will take into consideration in deciding on the reasonableness or otherwise of a contract term include: advertising method and content, responsibility for insurance, choices available to the parties, the resources of the respective contracting parties, the price of the goods, any defined maintenance obligations, the terms of any relevant codes of practice in the trade or industry concerned, the typeface used and the relative prominence of the exclusion clause.

Employment Law in Relation to Health and Safety

Contract of Employment Employment is founded on a contract between employer and employee - the 'contract of employment'. When a contract of employment is made, it consists of a number of terms and conditions. Many of these are express, i.e. spelled out in written or spoken words. Other terms are implied by custom and practice; or incorporated from collective agreements. Some terms are inserted into the contract by law, as various employment protection rights. A contract, whether verbal or in writing, is legally binding on both parties.

Other Conditions Some details must be provided of items that are not strictly part of the contract:

• Staff should be advised of any disciplinary rules that apply to them.

• They should be advised of procedures for appealing against disciplinary action and informed of who to contact if they wish to raise grievances relating to their employment.

The legal obligation is to issue the statement within two months of the date on which employment commences. It may, however, be administratively convenient to issue the statement earlier, either with letters of appointment or on the first day of employment. If the statement is not issued with letters of appointment, many of the terms may be specified separately in the letter of appointment.

Under the Employment Protection (Part-Time Employees) Regulations 1995, part-time workers whose hours are less than 16 hours per week were given statutory protection for the first time. The number of hours worked was no longer a qualifying factor in determining their statutory rights.

Statutory Restraints In establishing terms of employment, an employer must pay regard to restraints imposed by the provisions of several different statutes:

• Equal Pay Act 1970.

• Sex Discrimination Acts 1975 and 1986.

• Race Relations Act 1976.

Union Agreement Some changes in terms are brought about by agreement between management and unions or staff associations. The union may, in effect, by reaching agreement with management, be consenting on behalf of employees affected by the changes. An individual who refuses to



agree to work under new terms may be held to have consented by reason of the union acting as an agent on his behalf. This form of consent may depend on a number of circumstances, which tribunals would consider in particular cases before ruling that the employee was deemed to have consented.

If an employee does not consent to changes, certain consequences may follow:

• He/she may be dismissed. In many cases, he/she may have a claim for either:

− Redundancy compensation; or

− Unfair dismissal.

• He/she may resign. An employee who resigns may claim constructive dismissal. In this case, the basis of the claim is that, by changing his/her terms without consent, the employer has broken the contract of employment.

Disciplinary Procedures Employers and safety practitioners may find themselves in the position of having to discipline, or even dismiss, an employee for failing to comply with safety rules and regulations. It is, therefore, important that you understand the essentials of such procedures in order to avoid being found guilty of unfair dismissal before an employment tribunal. It is also a requirement of your syllabus that you have a general understanding of the relevant legislation.

Employers need to ensure that employees, and employees of outside contractors working on premises under their control, are made aware of any rules concerning safe working practices. Remember that employees must understand the reasoning behind the rules, as well as the need for them to comply with them.

The basic reason for disciplining an employee should be to prevent danger to other employees. This, along with the vicarious liability of employers (see Element A9) has been the position in common law for many years and has been carried through into legislation in Acts such as the Law Reform (Personal Injuries) Act 1948. Under such legislation employers must, through line management, ensure that employees are protected against the negligent conduct of other employees. If a particular employee is known to be a source of danger, then the employer is duty-bound to remove that source of danger. Remember these points as you study the following sections dealing with discipline and dismissals.

A disciplinary procedure that is made known to all within the organisation who are concerned with disciplinary matters is the first requirement for any company that wishes to ensure that this aspect of managerial control is properly handled. Such a procedure does not, in itself, provide guidance on issues such as deciding whether any form of disciplinary sanction is or is not justified in a particular case.

Dismissals Legal Definition of Dismissal Legally, dismissal occurs in the following circumstances:

• The employer terminates the employee's contract, with or without notice.

• The contract is terminated by the employee, who resigns because of the employer's behaviour. This is known as constructive dismissal.



Unfair Dismissal The concept of 'unfair dismissal' can affect many cases in which no question arises as to whether or not the employee's rights to notice have been honoured. Unfair dismissal is concerned with whether or not the decision to dismiss can be justified by the reasons given for the decision and the manner in which the dismissal is handled.

Dismissal for Taking Action on Health and Safety Grounds The law on this subject is contained within sections 100(1) and 105(3) of the Employment Rights Act 1996 (as amended).

"Employees will be unfairly dismissed if their employer dismisses them (or selects them for redundancy when others in similar circumstances are not selected) because they:

• carry out or propose to carry out any activities which they are designated by their employer to carry out in connection with preventing or reducing risks to health and safety at work; or

• perform or propose to perform any functions they have as official or employer-acknowledged health and safety representatives or committee members; or

• bring to their employer's attention, by reasonable means and in the absence of a representative or committee with whom it would be reasonably practicable for them to raise the matter, a concern about circumstances at work which they reasonably believe are harmful to health or safety;

• in the event of danger which they reasonably believe to be serious and imminent and which they could not reasonably be expected to avert, leave or propose to leave the workplace or any dangerous part of it, or (while the danger persists) refuse to return; or

• in circumstances of danger which they reasonably believe to be serious and imminent, take or propose to take appropriate steps to protect themselves and other persons from the danger.

It is also unlawful for an employer to subject an employee to any other detrimental treatment on one of these grounds.

Whether or not the steps which an employee takes to protect him or herself or others from danger are 'appropriate' will be judged by reference to all the circumstances including, in particular, the employee's knowledge and the facilities and advice available at the time.

It will not be unfair for an employer to dismiss an employee (or subject him or her to any other detriment) if it was, or would have been, so negligent for the employee to take the steps he or she took, or proposed to take, that a reasonable employer could have reacted in that way.

There is no qualifying period of service, or age limit, for employees who wish to complain that they have been dismissed for one of the reasons described in this section."

(Source DTI © Crown copyright 2003. Reproduced with permission.)

Remedies for Unfair Dismissal There are three possible remedies for unfair dismissal, two of which involve re-employment of the applicant by the employer:

• Reinstatement (the employee is to be treated in all respects as though the dismissal had not occurred).



• Re-engagement (the employee is to be re-employed but not necessarily in the same job or on the same terms and conditions of employment).

• Compensation.

Where the remedy is reinstatement or re-engagement, some compensation for loss of earnings may also be awarded.

Awards of Compensation Compensation is by means of the following awards:

• A Basic Award

There is a minimum basic award and a maximum figure.

• A Compensatory Award

The amount is based on assessment of the financial loss suffered by the dismissed employee. There is no limit where the unfair dismissal is for reasons connected with health and safety matters.

• An "Additional Award"

Payment of an "additional award" occurs only in exceptional circumstances where the employer fails to reinstate or re-engage an employee who has been unfairly dismissed.

• A Special Award

This is made where an employee has been dismissed for:

− Union activities or membership.

− Non-membership of a trade union.

− Redundancy on union membership grounds (unfairly selected).

− Reasons associated with health and safety matters.

Each of the above would amount to unfair dismissal.

For further information on trade union issues as related to dismissal and other employment matters, see the Trade Union and Labour Relations (Consolidation) Act 1992 in the RRC Health and Safety Law and Case Law Guide.

The tribunal may take account of factors such as the employee's contribution to his dismissal, in reducing the amount of compensation.

Employment Rights Act 1996 As we have seen, the Employment Rights Act 1996 protects all employees (including safety representatives) from being dismissed for performing their functions. Among other things, it also makes it unfair to treat employees detrimentally (i.e. victimise) on health and safety grounds.

Under the Act (Section 44(1)), employees are entitled not to be victimised for the following:

• Having been designated to carry out health and safety duties by the employer, carried out or proposed to carry out such duties.



• Being a safety representative or member of a safety committee, performed the functions of a safety representative or safety committee member.

• Being an employee at a place where there was no safety representative or safety committee, or there was such a safety representative or safety committee but it was not reasonably practicable to highlight the problem through the committee or safety representative, having brought to his employer's attention problems connected with his work that he reasonably believed to be harmful or potentially harmful to health and safety.

• Having left or proposed to leave or refused to return to his place of work or any dangerous part of such place, in dangerous circumstances, which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert.

• Taking or proposing to take appropriate steps to protect himself or others from danger in dangerous circumstances which the employee reasonably believed to be serious and imminent.

Note that employees without a specific safety role will also be protected if they leave their work to help prevent any serious danger. In addition, pregnant women gain the right to 26 weeks' maternity leave and become protected against dismissal for being pregnant.

As well as the right not to be dismissed, there is also the right not to be unfairly selected for redundancy.

Remedies against unfair dismissal or unfair redundancy selection would be by appeal to an employment tribunal.

Discrimination We have already covered certain aspects of employment law. This wide subject can best be understood if we concentrate on the particular aspects which affect the work of the safety practitioner, and which are required by your syllabus. A clear understanding of the relevant pieces of legislation is important. For example, sex discrimination may be suspected if a woman is moved from a task purely because a reproductive hazard is thought to exist; Sikhs may resist a company regulation concerning the wearing of safety helmets and evoke the Race Relations Act.

Since World War II, and mainly in the 1960s and 1970s, a number of statutes have been passed to regulate the recruitment of employees and give them some protection against discrimination. The main statutes are:



• Disability Discrimination Act 1995.

• Employment Rights Act 1996.

• Social Security Act 1996.

• Equality Act 2006.

The Sex Discrimination Act 1975 provides that in full-time and part-time employment, training and related matters:



• Discrimination against women (or men) is unlawful.

• Discrimination against married persons is unlawful.

• Indirect discrimination is unlawful.

The Race Relations Act 1976 makes it illegal to discriminate against anyone on grounds of race, including:

• Colour.

• Race.

• Nationality.

• National or ethnic origins.

The Disability Discrimination Act 1995 has phased out the previous 'quota system' for the employment of disabled employees in companies with more than 20 employees. It was, in any case, unworkable and incapable of being policed effectively. The 1995 Act is aimed at eliminating discrimination against disabled persons, particularly in the field of employment.

Based on the Pregnant Workers' Directive, the Trade Union Reform and Employment Rights Act 1993 and the Employment Rights Act 1996 made certain provisions for pregnant women. They have the right:

• Not to be dismissed because of pregnancy.

• To receive maternity pay.

• To return to work after pregnancy, provided they give notice of their intention to do so.

• To time off for antenatal care.

• To receive 14 weeks' continuous leave allocated before and/or after confinement.

Sex Discrimination Act 1975 Discrimination occurs when a person is treated less favourably than he or she would otherwise have been treated because of sex or marital status.

The Act contains provisions covering discrimination in areas beyond the scope of this course. Our concern is with discrimination in employment:

• Discrimination against women (or men) is unlawful:

− In arrangements for recruitment and selection.

− In the terms on which employment is offered.

− By refusing or deliberately omitting to offer employment on grounds of sex.

Discrimination in matters of training, transfer, promotion, or the provision of benefits, facilities, or services relating to employment is also unlawful.

• Discrimination against married persons is unlawful. A married person may be the victim of unlawful discrimination in treatment compared to either a person of the same sex, or of the opposite sex.

• Indirect discrimination is unlawful. The concept of indirect discrimination includes discrimination which occurs by imposing a requirement (other than sex or marital status) which has the effect of excluding a major proportion of applicants of a particular sex or marital status:



− Direct discrimination might take the form of advertising a job inviting applications from "males only".

− Indirect discrimination may take the form of imposing a term such as "Applicants must be 6 feet tall", which would exclude more women than men, although there is no explicit discrimination on grounds of sex.

Since differences between the sexes are fairly obvious, direct sex discrimination can be avoided easily, but some care is required to avoid indirect discrimination, which could occur inadvertently.

The Act contained exclusions within the sex discrimination provisions, some of which have been repealed by the Sex Discrimination Act 1986. Because the Sex Discrimination Act 1975 failed to comply completely with EC Directives on sex discrimination, the Sex Discrimination Act 1986 aimed to rectify these failures. The 1986 Act cancels or amends existing exclusions within sex discrimination legislation, and repeals many of the traditional restrictions on women's hours of work.

Certain exemptions apply (section 7 of the Act), such as "genuine occupational qualification", but this has very restricted applicability.

The Act also requires that employers do not discriminate against women in relation to retirement, covering employment in terms of dismissal, promotion, training, provision of facilities and any other benefits. The former practice whereby employers operated different retirement ages for male and female employees is considered discriminatory.

Enforcement

• Commission for Equality and Human Rights (CEHR)

Under the Equality Act 2006 (see especially sections 8 and 36), the Commission for Equality and Human Rights (website: www.equalityhumanrights.com) has responsibility for promoting equality (including sex equality); their role includes enforcing the relevant law. In relation to sex discrimination, this role was formerly undertaken by the Equal Opportunities Commission (which now no longer exists). The CEHR can enforce equalities duties; this includes launching investigations and inquiries. The CEHR may take legal action on behalf of individuals – especially where there are potential test cases to create legal precedents. The CEHR also provides help, advice and guidance.

• Employment Tribunals

The remedy open to persons who believe they have been the victims of sex discrimination is to raise a complaint with an employment tribunal. In the first instance such cases are referred to the EOC, who may support the claim if they believe that discrimination has occurred. Tribunals are empowered to award damages. Most such awards to victims of sex discrimination are not very high.

Race Relations Act 1976 Legislation on race discrimination was introduced before legislation on sex discrimination (earlier statutes were passed in 1965 and 1968). The 1976 Act replaced these previous statutes and went some way towards harmonising provisions on race and sex discrimination. Its enactment gives effect to the view that 'race' is not a valid criterion on which employment discrimination should be based.



Like the Sex Discrimination Act, its provisions extend into areas other than employment, which are beyond the scope of this course.

A significant difference between 'sex' and 'race' (in the context of the Acts) is that, while the former does not require a formal legal definition, the latter does.

Discrimination on grounds of race covers:

• Colour.

• Race.

• Nationality.

• National or ethnic origins.

A significant exclusion from this is a 'religion', which in some parts of the UK is regarded as a criterion on which many 'unfair' employment decisions are based.

Exclusions There are some circumstances in which race discrimination is permitted:

• Genuine occupational qualifications: these cover employment in work such as modelling, ethnic restaurants, dramatic performances. There are also certain jobs providing services to a racial group that are exempt from the unlawful discrimination restraints.

• Private households are excluded, unless alleged discrimination takes the form of victimisation.

• Training: it is possible to discriminate in certain training provisions, such as providing training in English for non-English-speaking people.

Enforcement The following bodies enforce racial equality:

• Commission for Equality and Human Rights (CEHR)

CEHR, as described previously, also has enforcement responsibilities for racial equality. Formerly, these responsibilities were under the Commission for Racial Equality (which now no longer exists).

• Employment Tribunals

As with alleged sex discrimination, cases of alleged race discrimination can be referred to an employment tribunal. The tribunal may award compensation or specify other action to eliminate discrimination.

Disability Discrimination Act 1995 Discrimination is defined in the Act as one of the following:

• Where an employer discriminates against a disabled person if, for a reason that relates to a person's disability, he treats the disabled person less favourably than he would treat a person to whom the reason does not apply, and he cannot show that the treatment was justified.



• Where any arrangements made by or on behalf of an employer, or any physical feature of premises occupied by an employer, place a disabled person at a substantial disadvantage in comparison with persons who are not disabled, the employer must take reasonable steps to prevent the disadvantageous effect. Discrimination occurs where the employer fails to provide such reasonable adjustments to the working environment and he cannot justify such failure.

Disability is defined as either a physical or mental impairment that has a substantial long-term adverse effect on a person's ability to carry out normal day-to-day activities.

You need to understand the key phrases used in these definitions:

• "Substantial long-term effect" means an impairment:

− Lasting for at least 12 months.

− Likely to last for a total period of at least 12 months.

− Likely to last for the rest of the person's life.

• "Day-to-day activities" include:

− Mobility.

− Manual dexterity.

− Physical co-ordination.

− Continence.

− Ability to lift.

− Ability to carry.

− Speech.

− Hearing.

− Eyesight.

− Memory.

− Ability to learn.

− Ability to perceive physical danger.

• "Reasonable adjustments" include:

− Making adjustments to premises.

− Allocating some of the employee's duties to another person.

− Transferring him/her to an existing vacancy.

− Altering his/her working hours.

− Assigning him/her to a different place of work.

− Allowing time off for rehabilitation, assessment or treatment.

− Arranging training.

− Acquiring or modifying equipment.

− Modifying instructions or reference manuals.

− Modifying procedures for testing or assessment.



− Providing a reader or interpreter.

− Providing supervision.

Enforcement An aggrieved person can take proceedings before an employment tribunal in the same way as under the Sex Discrimination and Race Relations Acts.

The Commission for Equality and Human Rights (CEHR), mentioned earlier, also has enforcement powers in relation to disability discrimination. In relation to disability, this role was formerly executed by the Disability Rights Commission (established in 2000 by the Disability Rights Commission Act 1999 but now dissolved and absorbed into the CEHR). The CEHR has an enforcement role in regard to the public interest. It can support individual cases and conduct formal investigations.

Situations where it May be Lawful to Discriminate As we have seen earlier, the main statutes that relate to discrimination that may have health and safety implications are:




In general, it is unlawful for employers to discriminate on the grounds of marital status or gender; colour, race, nationality or ethnic origin; and disability. However, there are certain circumstances where it might be lawful to discriminate on health and safety grounds and we can consider each in turn below.

Sex Discrimination Acts 1975 and 1986 It may be lawful for employers to discriminate against women on health and safety grounds, which relate to the risk to pregnant women and the unborn child, with the option of suspension from work if necessary. Examples of this are found in the Control of Lead at Work Regulations 2002 and the Ionising Radiations Regulations 1999. In addition, exposure to certain chemicals may present a higher risk to women of childbearing capacity.

Race Relations Act 1976 If nationality or ethnic origin may prevent employees from understanding health and safety information then positive discrimination is required to ensure that the information is presented in appropriate language. Where religious beliefs require the wearing of beards or long hair, this may contravene hygiene regulations in the food industry or impede the effective use of personal protective equipment such as respirators or head protection. In these cases, discrimination would be considered lawful.

Disability Discrimination Act 1995 This Act requires employers to make reasonable adjustments to both working conditions and the workplace (premises and equipment) but they may take cost into account in deciding what is reasonable. However, there is a limit to the reasonable adjustments that can be achieved. Consequently, the employer may argue that the nature of the disability will substantially affect the person's ability to carry out their tasks, and this will also include possible associated risks to safety and health.



Another area to consider is discrimination in order to protect young persons from high-risk activities as required by the Management of Health and Safety at Work Regulations 1999. Though not part of the syllabus, discrimination on grounds of age is generally unlawful by virtue of the Employment Equality (Age) Regulations 2006.

Protection for 'Whistle-Blowers' Employees are usually the first to know if there is anything wrong in the health and safety of an organisation, but are often reluctant to voice their concerns publicly. This may be because they will be seen as disloyal and labelled as troublemakers, which may jeopardise their jobs. If an employee discloses confidential information, then the employer may choose to discipline or dismiss the individual for breach of contract. Failure to recognise information received this way is likely to have contributed to many disasters. There is evidence that employees had expressed doubts about safety procedures prior to the capsize of the “Herald of Free Enterprise” in 1987, and the explosion of the Piper Alpha Platform in 1988, which together led to the loss of over 300 lives. Whistle-blowing covers a range of meanings. It is generally when an employee tells their employer, the regulator, police or others about dangerous/illegal activities at their workplace. Whistle-blowing can be used to refer to situations where employees wish to protest about a health and safety practice, such as an employer reducing the number of employees in the health and safety section in a high-risk business. Whistle-blowing is different from complaining because it usually raises a concern about things which are likely to seriously affect others (rather than just the whistle-blower); complaining is usually about something that affects the individual who complains.

It can be argued that employees are legally obliged to blow the whistle in certain circumstances. Section 7, HSWA requires employees to take reasonable care of themselves and others. Accordingly, this may require the employee to notify not only the employer but also the enforcing agency, if their concerns are ignored. Furthermore Regulation 14 of the Management of Health and Safety at Work Regulations 1999 requires employees to inform employers of any work situation which could reasonably be considered to represent a serious and immediate danger to health and safety. In addition, they should notify employers of any shortcomings in the employer's protection arrangements for health and safety.

Legislation to protect employees has been enacted by the Public Interest Disclosure Act 1998, which came into force on 2 July 1999. The Act amends the Employment Rights Act 1996 and gives employees the right not to be subjected to any detriment or act, or any deliberate failure to act, by their employer done on the ground that the worker has made a protected disclosure.

The Act defines those disclosures that qualify for protection as:

"… any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health and safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being, or is likely to be damaged, or



(f) that information tending to show any matter within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed."

All of the above has relevance to health and safety disclosures.

The Schedule to the Public Interest Disclosure (Prescribed Persons) Order 1999 lists the HSE and local authorities as organisations to which employees may make a protected disclosure in respect of health and safety at work.

Should an employer unfairly dismiss an employee for making a protected disclosure concerned with health and safety matters, there is no upper limit to the compensation that a tribunal may award.



Revision Questions

?

1. What is meant by the 'ratio decidendi' in a law judgment?

2. What are the differences between criminal law and civil law?

3. What standard of proof must be achieved by (a) the prosecution in a criminal case, and (b) the claimant in a civil case?

4. What is a contract and what are the essential elements of a valid contract?

5. What is 'unfair dismissal' and what are the remedies for unfair dismissal?

6. Under what legislation is an employee protected from victimisation for having brought to his or her employer's attention problems connected with his/her work that the employee reasonably believes to be harmful or potentially harmful to health and safety?

7. Define the term 'discrimination' as laid down in the Disability Discrimination Act 1995.

(Suggested Answers are at the end of Unit A.)



ABSOLUTE AND QUALIFIED DUTIES The Concept of Absolute and Qualified Duties We have established that criminal liability is concerned with the responsibilities of persons under statutes and common law and the penalties that can be imposed by the criminal courts.

A crime, or a breach of criminal law, is thus an offence against the state and the burden of proving a criminal charge "beyond reasonable doubt" rests with the prosecution.

If a person is found guilty, a court will impose some form of punishment, such as a fine or imprisonment or both. However, in addition, compensation may be ordered by a court to be given to a person to cover personal injury and damage to property. The sums involved tend to be very small compared to those that may be awarded following a successful civil action.

Criminal law has its own court structure which we will examine in a later section; cases are heard in Magistrates' Courts, or in Crown Courts (England and Wales) where the more serious cases are heard before a judge and jury.

A criminal law offence usually requires the prosecution to prove guilty intent as well as the act or omission. This is not the case with most health and safety offences where the only requirement is to prove the defendant committed the act or omission. However, the statute concerned may set out different levels of duty (absolute and/or qualified) giving rise to criminal liability, with corresponding levels of proof required and defences available.

Definition of Terms The three distinct levels of duty are absolute, practicable and reasonably practicable. These levels constitute a hierarchy as follows:

• Absolute requirements, where the duty is qualified by "shall" or "must" without any other word or phrase to lower the standard. For example, Reg. 4(1), Provision and Use of Work Equipment Regulations 1998 states:

"Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is to be used or provided".

Every employer must comply with this duty no matter what the cost, etc. of compliance (Summers (John) & Sons v. Frost (1955) - see RRC Health and Safety Law and Case Law Guide).

• Practicable requirements imply that if, in the light of current knowledge and invention, it is feasible to comply with these requirements, irrespective of cost or sacrifice, then such requirements must be complied with.

"Practicable" means more than physically possible and implies a higher duty of care than a duty qualified by "so far as is reasonably practicable". With a practicable requirement, if something is technically possible then it should be done.

• Reasonably practicable requirements imply a lower or lesser level of duty.

"Reasonably practicable" is a narrower term than physically possible and implies that a computation must be made in which the quantum of risk is placed on one side of the scale and the sacrifice involved in carrying out the measures necessary for averting the



risk is placed on the other side. If it can be shown that there is gross disproportion between the above factors, i.e. the risk is insignificant in relation to the sacrifice, then a defendant discharges the onus on themselves (Edwards v. National Coal Board (1949) - see RRC Health and Safety Law and Case Law Guide).

We shall look at these definitions again in more detail when we consider the specific duties laid down in HSWA in Element A8.



Revision Question

?

8. Explain the meaning of the terms "absolute", "practicable" and "reasonably practicable" as used in health and safety legislation.

(Suggested Answer is at the end of Unit A.)



ROLE OF THE EUROPEAN UNION Influence and Role of the European Union Regarding UK Health and Safety Legislation The role of the European Union (EU) is to break down economic and commercial barriers between member states. The following points outline this role in more detail:

• To promote economic and social progress (balanced and sustainable) in particular through creation of an area without internal frontiers, through strengthening economic and social cohesion and through establishment of economic and monetary union, ultimately including a single currency in accordance with the Treaty on European Union 1992 (Maastricht Treaty).

• To assert its identity on the international scene through implementation of a common foreign and security policy.

• To strengthen the protection of the rights and interests of the nationals of its member states through the introduction of a citizenship of the Union.

• To develop close co-operation on justice and home affairs.

• To maintain in full articles and legislation affecting the free movement of goods, services, persons or capital.

The promotion of trade does also encourage stability, wealth and partnership between member states. This in turn encourages more countries to join which in turn makes the EU larger and more influential.

Understanding the role of the EU in influencing UK health and safety legislation is one of the main aims of this element, and this topic is considered in more detail in the remainder of this section. However, it is useful at this stage to review to what extent the UK is able to determine the subject, content and form of its national legislation.

In theory, the UK can enact its own legislation independent of the EU provided it does not contradict a Directive. In practice this would probably mean setting a higher standard. As a consequence, the UK tends to respond only to the EC Directives and does not formulate its own laws when the EU may well issue a later Directive that requires something different.

Directives are implemented in the UK by regulations. The Directives are binding on the result to be achieved so that gives the UK some leeway in interpretation and enactment to suit UK law. However, problems can arise with the concept of "reasonably practicable" which the European Commission sees as a lower standard. There is also the issue of implementing the requirements of Directives through Approved Codes of Practice, the breach of which is not directly a criminal offence.

To redress the balance, the UK as an EU member state can influence the European Commission's programmes and also the form and content of draft Directives. Consequently, the process responsible for the creation of instruments of EU law can be influenced by UK representation on the main EU institutions that we consider in more detail next.



Composition and Roles of the Main Institutions

Council of the European Union The Council of the European Union (previously known as the Council of Ministers) consists of one member from each of the member states and usually meets in Brussels. The office of President rotates on a six-monthly basis between the member states.

The Council have two types of meeting:

• A general Council Meeting composed of the foreign ministers of each member state.

• A special Council Meeting composed of the national ministers with special responsibility for the subject under discussion, e.g. for monetary and financial matters, the finance ministers would attend.

Members of the Council are very busy and often required in their home country. During these absences from Brussels a subsidiary committee known as COREPER (The Committee of Permanent Representatives) carries on the work by providing the necessary links between national governments and European Union institutions and preparing draft legislation for submission to the Council for approval.

The role of the Council is to:

• Legislate (in most cases jointly with the European Parliament).

• Co-ordinate the broad economic policies of the member states.

• Conclude international agreements between the EU and one or more states or international organisations.

• Approve the EU's budget, jointly with the European Parliament.

• Develop the EU's Common Foreign and Security Policy, based on guidelines set by the European Council. (NB The European Council is made up of the heads of state or of government of each member state together with foreign ministers and should not be confused with the Council of the European Union.)

• Co-ordinate co-operation between the national courts and police forces in criminal matters.

The Council of the European Union is the principal decision-making institution in the Community. Since it is composed of foreign ministers it represents the interests of national governments.

The European Commission The Commission is a politically independent body made up of Commissioners from the various member states. Commissioners are appointed by their member state in consultation with the European Parliament. The Commissioners are not national representatives, and are prohibited from taking instruction from any government or other body. The Commission acts in the interest of the Union as a whole. The President of the Commission is nominated by the member states in consultation with the European Parliament. Voting on issues is resolved by a simple majority. The Commission's role is to:

• Propose legislation to Parliament and Council.

• Manage and implement EU policies and the Budget.



• Promote and represent the interests of the EU on the international stage, e.g. negotiating agreements between the EU and other countries.

• Enforce European law (jointly with the European Court of Justice).

• Institute proceedings before the European Court of Justice for any violations of EU obligations by member states.

• Institute proceedings before the European Court of Justice against any EU institution considered to have exceeded its powers.

The European Parliament The European Parliament is made up of directly elected members (MEPs) and so represents the citizens of the EU. It has an elected president. Originally, the Parliament lacked real executive power and had a mainly advisory role. However, with the adoption of the Single European Act 1986, its powers have widened considerably. In addition to its legislative role, the Parliament can join with the Commission and the Council of the European Union in dealing with legislation relating to discrimination on grounds of nationality, free movement of workers or services, and the establishment and function of the EU's internal market. This is known as the Co-operation Procedure. A development from the Maastricht Treaty is the Co-decision Procedure in which Parliament becomes a co-decision-maker with the Council of the European Union.

Its role is to:

• Legislate on most issues (shared with the Council under the co-decision procedure). It must be consulted on others.

• Exercise "democratic supervision" of other EU institutions, e.g. approve membership of the Commission. A country cannot appoint a commissioner without Parliament's approval.

• Control the EU budget (shared with Council). It can therefore influence spending.

The European Court of Justice (ECJ) The ECJ is more properly known as the Court of Justice of the European Communities. This Court, based in Luxembourg, consists of judges appointed from the member states who are assisted by eight advocates-general. The advocate-general has no counterpart in the United Kingdom court system. His function is advisory only, to give an impartial and measured legal opinion as to the facts of a case before the judges render their decision. The judges do not have to abide by his opinion nor does the advocate-general have a vote in the voting of the judges in arriving at their verdict.

The main role of the ECJ is to ensure that EU law is interpreted and applied the same way in each member state. The ECJ has the power to settle disputes between EU institutions, member states, individuals, etc. Where there is a conflict between EU law and national law, EU law takes precedence.

The Court of First Instance (CFI) This is attached to the ECJ. Because of pressure of business on the ECJ, the Single European Act authorised the creation of a Court of First Instance to deal with some of its agenda. It was established in 1989. The Court of First Instance hears all direct actions brought by natural or legal persons or the EU institutions, including staff cases. (A natural person is a human being, as distinguished from a legal person, that is created by law, for example: a corporation.) Appeal on points of law lies with the European Court of Justice. This



court does not extend the jurisdiction of the ECJ in any way; it is there simply to alleviate pressure on the ECJ and take over some of its workload.

European Court of Justice – Jurisdiction and Powers In this context, jurisdiction simply means the legal authority granted to the court to deal with matters in certain areas. The court has wide jurisdiction, including jurisdiction in the following areas:

• Referral for Preliminary Ruling

Most cases brought before the ECJ deal with the interpretation or application of EU legislation as it affects individual rights. If an individual person can show that the member state is in breach of EU law, s/he can bring the case before the ECJ. However, the individual cannot make a direct approach to the ECJ on a point of interpretation or application of EU law. The case must commence in, and be referred by, a national court in order for the ECJ to give a "preliminary ruling" (i.e. decision). If during the course of a case in a national court a point of EU law is raised and disputed, the individual may ask the court to refer the matter to the ECJ. Cases referred in this way take approximately 18 months for a decision to be delivered by the ECJ. During this period, the proceedings in the national court are stayed.

Under Article 234 of the European Community Treaty, the European Court of Justice has jurisdiction to give preliminary rulings on references made to it by United Kingdom courts on: the interpretation of the EC Treaty; the validity and interpretation of acts of the institutions of the EU and of the European Central Bank; the interpretation of the statutes of bodies established by an act of the Council of the European Union where those statutes so provide.

For the purposes of Article 234, referral can only be made by a court or tribunal of a member state. "Court or tribunal" has been interpreted as meaning "any body representing the judicial power of the state". Note carefully that this is not an 'appeals procedure'. It is a referral to the Court for a ruling on the above-mentioned points. The ruling so made is binding on the national court – the case then continues in the national court but is bound by the ECJ’s interpretation of the point of law raised.

Article 234 cites two distinct referral situations – non-mandatory referrals and mandatory referrals. Non-mandatory referrals are when a court or tribunal considers it necessary to decide on an interpretation/application of a point of EU law to give a judgment and can then simply request a ruling from the ECJ. Mandatory referrals arise when such interpretation/application issues arise in a court/tribunal against whose decisions there is no judicial remedy under national law (i.e. a court of final appeal) – in such cases it must be referred to the ECJ for judgment on the matter.

• Hearing Direct Actions

There are several possible actions in this area, including:

− For failure of member states to fulfil obligations under EU law (e.g. a member state hasn’t properly implemented a directive). The Commission or another member state can bring the action.

− For annulment of a measure (regulation, directive, decision) adopted by an EU institution (such as the Parliament or Council). The ECJ only deals with actions brought by member states against the Parliament or Council or brought by one EU



institution against another. The CFI deals with other such cases (especially those brought by individuals).

− For failure to act by an EU institution. The jurisdiction is shared with the CFI in the same circumstances as for annulment.

− For awarding compensation for unlawful acts committed by Community Institutions (Article 235 of the European Community Treaty, as amended).

• Hearing Appeals

The ECJ acts as a court of appeal on points of law from the Court of First Instance.

Composition and Roles of the Economic and Social Committee and Advisory Groups The EU is such a vast organisation with such wide-ranging representative functions that several organisations have developed to assist the main institutions. A number of these have 'advisory status' within the EU. 'Advisory status' means having the facility of being consulted by the Commission and/or the Council of the European Union.

• The Court of Auditors

This Court was an early establishment of the Community but was given institution status by the Maastricht Treaty. Its duty is to carry out audits of all revenue and expenditure of the EU and its associated bodies. It must certify to the Council of the European Union and Parliament the accuracy of all accounts produced. It presents an annual statement which is presented to the other EU institutions.

• The Committee of Permanent Representatives (COREPER)

COREPER assists the Council of the European Union by doing a great deal of preparatory work on its behalf.

• The Economic and Social Committee (ECOSOC)

The ECOSOC is an advisory committee appointed under Article 193 of the EC Treaty 1957. Under certain articles of the Treaty both the Council of the European Union and the Commission are obliged to consult the ECOSOC, e.g. Article 75 (dealing with international transport within the Community), and Article 100A (dealing with the legal base for the adoption of measures necessary for the establishment and functioning of the internal market). Membership of ECOSOC is allocated to the member states according to size and population. It is representative of three groups of people: employers and employers' organisations; workers and trade unions; and other interests, such as small businesses and environmental groups.

• The Committee of the Regions (COR)

This advisory committee was established by the Maastricht Treaty in 1993 to represent the particular interests of the Regions (by issuing opinions on legislative proposals, etc.). Its make-up almost exactly parallels the ECOSOC. It is made up of elected municipal or regional politicians, e.g. town councillors and mayors.



• The Conciliation Committee

This Committee is composed of a number of members of the Council of the European Union and an equal number of Members of Parliament. They are involved in the final part of the Co-decision Procedure where they are charged with the task of promoting agreement between Parliament and the Council.

Instruments in EU Law

Treaties A Treaty is "a formally concluded and ratified agreement between States". Treaties are also known as primary European Community legislation. Treaties are directly applicable to member states. Examples are the Treaty of Rome (which established the European Community, and is now called the EC Treaty or “the Treaty Establishing the European Community”) and the Treaty of the European Union (also known as the Maastricht Treaty).

Regulations Regulations apply directly to the intended target (normally member states). There is no requirement to assimilate into national laws. European Regulations prevail over national law. Regulations are rarely used. An example is regulation 2062/94 which established the European Agency for Safety and Health at Work.

Directives Directives are binding on member states with respect to the objectives to be achieved but, the method for achieving this is left open. Framework Directives lay down general objectives and Daughter Directives specify how these results can be obtained.

Directives are normally implemented by national regulations made in each member state. They must be implemented by a defined date referred to in the directive.

Decisions Decisions are binding in their entirety upon those that they address, e.g. member states, legal persons or individuals.

Decisions are made by the European Court of Justice on points of law. An individual or a member state can take a case to the European Court of Justice in order to seek interpretation of a directive or to complain of the failure of a member state to implement a directive.

Directives

Co-Decision Procedure There are essentially four procedures for enacting EU legislation (depending on the subject) – co-decision, consultation, assent and co-operation. The co-operation procedure is now little used. The co-decision procedure is the main process and the one that is used for introducing legal instruments on health and safety matters.

Co-decision was a new form of legislative procedure introduced by the Maastricht Treaty in 1993 under Article 189b. This was an arrangement designed to achieve consensus between



the Council of the European Union and Parliament. Measures adopted under the procedure are signed by the Presidents of both institutions, recognising their joint responsibilities.

Please refer to the following flow diagram for the procedure (diagram reproduced from the EU official Europa website: www.europa.eu.int).




Co-Decision Procedure

(© European Communities, 1995-2006)

1. A ESC opinion COR opinion

3. Amended proposal from the Commission

1. Proposal from the Commission

2. First reading by the EP - opinion

4. First reading by the Council

5. Council approves all the EP's amendments

7. EP has approved the proposal without amendments

9. Common position of the Council

10. Communication from the commission on common position

6. Council can adopt the act as amended

8. Council can adopt the act

11. Second reading by the EP

12. EP approves common position or makes no comments

14. EP rejects common position

16. EP proposes amendments to common position

17. Commission opinion on EP's amendments

13. Act is deemed to be adopted

15. Act is deemed not to be adopted

18. Second reading by the Council

19. Council approves amended common position (i) by a qualified majority if the Commission has delivered a positive opinion (ii) unanimously if the Commission has delivered a negative opinion

21. Council does not approve the amendments to the common

position

20. Act adopted as amended 22. Conciliation Committee is convened

23. Conciliation procedure

24. Conciliation Committee agrees on a joint text 29. Conciliation Committee does not agree on a joint text

25. Parliament and Council adopt the act concerned in accordance with the joint text.

27. Parliament and Council do not approve the joint text

30. Act is not adopted

26. Act is adopted 28. Act is not adopted


First Reading (No time limit)

An initial proposal from the Commission is forwarded to the Council and Parliament. Parliament gives its opinion to the Council. During these deliberations both the Economic and Social Committee (ECOSOC) and the Committee of the Regions (COR) are feeding in their opinions.

There are two possible outcomes at this stage:

1. The Council accepts the outcome of Parliament's First Reading.

The legislative Act is then adopted and published in the Official Journal of the European Union.

OR

2. The Council rejects the outcome of Parliament's First Reading.

The Council then adopts a "Common Position" (i.e. text of revised proposal) by a qualified majority vote (QMV).

The Council communicates the Common Position to Parliament with a statement of its reasons.

The proposal is then submitted for a second reading.

Second Readings (Each limited to 3 months with a possible 1 month extension)

The Second Reading can be made by either the European Parliament or the Council of the European Union.

• Second Reading by The European Parliament

This is the response to the Council's Common Position. The possible outcomes are:

1. Parliament votes to accept the Council's Common Position (or fails to vote on it within the three-month time period).

The legislative Act is adopted on the basis of the Common Position and published in the Official Journal.

OR

2. Parliament votes to reject the Common Position by an absolute majority vote.

The measures are not adopted (process cannot continue except with a new proposal from the Commission).

OR

3. Parliament may propose amendments to the Council's Common Position (amendments approved on basis of absolute majority vote).

These are notified to the Council and the Commission for a second reading by the Council.

• Second Reading by The Council of the European Union

This is the response to Parliament's proposed amendments. The possible outcomes are:

1. The Council accepts amendments in their entirety (by QMV or unanimously if the Commission's opinion of the proposed amendments is unfavourable).



The legislative Act is adopted on the basis of the amended Common Position and published in the Official Journal.

OR

2. The Council rejects some or all of the amendments.

We then move forward to the conciliation stage.

Conciliation The Conciliation Committee is convened by the Presidents of Parliament and Council within six weeks (plus possible two-week extension) of the rejection. The committee's job is to formulate and approve a joint text of amended proposals which brings the sides closer together (so lots of discussions). If the committee fails to approve a joint text within a further six (plus a further two) weeks of being convened, the measures will not be adopted.

If a joint text is approved by the committee then a third reading will commence.

Third Reading (6 weeks plus possible 2 week extension)

This is for the Council and Parliament to consider the joint text approved by the Conciliation Committee. The possible outcomes are:

1. Both Parliament and Council accept the joint text.

(Parliament – Absolute Majority Vote; Council – QMV, or exceptionally Absolute Majority Vote). The measure is adopted.

OR

2. Either Parliament or Council rejects the joint text (or fails to accept it within the time period).

The measure is not adopted.

Qualified Majority Voting This method of voting was introduced in order to expedite the passing of legislation by dispensing with the need for unanimity of agreement. Under QMV, each member state has a proportion of the available votes allocated according to relative size.

Distinction Between Directives Made Under Article 95 (formerly 100a) and Article 137 (formerly 118a) of the Treaty of Rome In this section, we will also consider the effects of these directives on social responsibility and internal market issues.

Article 95 Article 100a was introduced by the Single European Act to provide for the establishment of an internal market without internal frontiers in which the free movement of goods, persons, services and capital was ensured. Directives made under Article 95 continue this provision. They are adopted in order to remove all barriers to trade in the European Union based on the principle of a high level of protection for human health and the environment; for example, the Asbestos Directive (Directive 83/477) and Directive 89/392 which later became the Supply of Machinery (Safety) Regulations 1992.



Article 95 is important in that it enables the harmonisation of standards in relation to the working environment and has some impact on health and safety in the workplace.

Directives made under this article are subject to unanimous voting.

Article 137 This was introduced with a view to achieving the social responsibility objectives of Article 136. Through Article 137, the European Union shall support and complement the activities of the member states in the following fields:

• Improvement in particular of the working environment to protect workers' health and safety.

• Working conditions.

• The information and consultation of workers.

• Equality between men and women with regard to labour market opportunities and treatment at work.

In summary, directives made under Article 137 are concerned with, among other things, the protection of workers, and lay down minimum requirements concerning occupational safety and health at work. For example, the Framework Directive 89/391 (The Management of Health and Safety at Work Regulations 1992 (now 1999)) which gave rise to the Five Daughter Directives (the Six-Pack).

Directives made under this article can be passed by qualified majority voting.

UK Law in Response to EC Directives Directives are binding on the UK with respect to the objectives to be achieved but the method for achieving this is open to the UK to decide. Directives are implemented by regulations made by the member state, and the UK is no exception.

The European Court of Justice

Its Role and the Procedure for Referring Cases As we have seen, under Article 234 of the European Community Treaty, the ECJ has jurisdiction to give rulings on references made to it by the courts of member states on:

• Interpretation of an EC Treaty.

• Validity and interpretation of acts of the institutions of the Community and of the European Central Bank.

• The interpretation of statutes of bodies established by an act of the Council where those statutes so provide.

This procedure is a referral for a ruling on the points above and not an appeals procedure. The ruling so made is binding on the national court. A referral can only be made by a court or tribunal of a member state.

An individual, however, can ask for a point of law to be referred to the ECJ. This would most likely occur during a case in a national court where a point of EU law is raised and disputed. Individuals cannot make a direct approach to the ECJ. The case must first commence in a



national court. Cases referred in this way take approximately 18 months for a decision to be delivered by the ECJ.

The jurisdiction of the ECJ is as follows:

• To hear complaints that a member state has not fulfilled its obligations under the Treaties.

• To decide whether the Commission and the Council of the European Union have acted legally.

• To decide disputes between member states about the subject matter of the Treaties.

Enforcing Decisions of the ECJ Through the Courts of Member States Decisions of the ECJ become precedents for the courts of member states and any future legislation enacted by member states must have regard to such Decisions.

Once a Decision has been made by the ECJ the Court can impose a financial penalty on a member state which fails to comply with the judgment of the Court.

Effect of Decisions of the ECJ on UK Law As a member state the UK has to abide by any Decision made by the ECJ. In addition, any future legislation or judgments must have regard to such Decisions.




Revision Questions

9. Outline the possible role of the European Court of Justice in a case between a member state and a citizen of that member state.

10. With respect to European Community law, distinguish between Regulations, Directives and Decisions.


?


UK LEGISLATIVE FRAMEWORK Status and Procedure for Making UK Acts of Parliament, Regulations and Orders Parliament consists of the Sovereign, the House of Lords, and the House of Commons. Although it is usually depicted in this order, the House of Commons is the most powerful member of the trio. For all practical purposes, the Sovereign's powers are limited and the business of government is carried out by Ministers of the Crown.

You will remember that we looked briefly at the parliamentary procedure with regard to new legislation in an earlier section when we considered statute law. Here we shall look at it in more detail.

Acts of Parliament Consultative and Policy Documents There are many publications circulating within the parliamentary system. You need to be aware of the following and understand their procedural relevance:

• Green Papers

A Green Paper is a statement of government intent. It is printed on green paper and is different from a White Paper because its contents are of a more tentative nature and its object is to seek opinion and feedback on proposals rather than to announce firm policy. Its circulation is much wider than Parliament and copies are sent to interested bodies such as the CBI (Confederation of British Industry) and TUC (Trades Union Congress) to sound out public opinion and reaction while official policy is still not fully formed. It is more of a consultative document than the White Paper, which is a firm statement of government policy.

• White Papers

A government White Paper is a statement of government policy presented to Parliament indicating the broad lines of the legislation the government intends to introduce. Printed on white paper, its contents provide the factual basis for parliamentary debate. It allows the Opposition the opportunity to study the proposals and to express their views either for or against. You will come across the phrase "Government White Paper" in television discussion and newspaper articles. White Papers are on sale to the general public.

Both Green and White Papers can be the starting point in the legislative process for the passage of a Bill through Parliament.

Progression of a Bill through Parliament Acts of Parliament must normally be passed by both Houses of Parliament and receive the Royal Assent. During its passage through the House and until it receives the Royal Assent, the embryo legislation is called a Bill. Bills may be introduced in the Commons or the Lords. The Bill, on its passage through the House, is subject to the following procedures:



• First Reading

This is purely a formal affair where the Bill's short title is read by the Clerk of the House. The Bill at this stage is a brief document recording the title of the Bill and the names of the members presenting and supporting it. There is no debate at this stage. An order is made for the Bill to be printed and the date set for the next reading.

• Second Reading

This stage involves discussion of the Bill's principles. If it fails at this stage it cannot proceed any further.

• Committee Stage

There are three types of Committee:

− Standing Committee of a small number of MPs (20 – 50 members).

− Select Committee (made up on the basis of political parties).

− Committee of the Whole House.

Finance Bills are always referred to a Committee of the Whole House. The Committee Stage is the stage at which the Bill is subject to very close scrutiny. Amendments are allowed at this stage of the proceedings.

• Report Stage

The Report Stage is a formality if the Bill has not been amended at the Committee Stage and can move directly to the Third Reading. If it has been amended at the Committee Stage, the Report Stage may refer it back to a Standing or Select Committee of MPs for further refinement.

• Third Reading

This last stage is also more or less a formality if the Bill has survived this far. If voted on favourably at this stage it has successfully passed through the Commons procedure.

Having survived these stages, the Bill is then passed to the other House, where it passes through a similar procedure. If the House of Lords wishes to amend the Bill it is returned to the Commons for agreement. The Lords has only limited power to reject a Bill. The Parliament Act 1911 provided that any Public Bill which has passed through the Commons procedures and which has been certified by the Speaker as a Bill proposing financial measures must be passed by the Lords without amendment within one month.

If not passed by the Lords within this time limit, the Bill receives the Royal Assent (which, in practice, is just a formality) and becomes law without their agreement.

The Lords have the power to delay any other Bill for 12 months, but they cannot prevent it from ultimately becoming law.

Regulations Section 15 of HSWA gives the power to make regulations under the Act to the Secretary of State. The phrase “Secretary of State” is frequently used in legislation; this is because, in law, there is only one such position. In practice, the job is split between many different Ministers, depending on the subject matter, e.g. Secretary of State for Health, Secretary of State for



Defence, etc. Thus, in practice, power is given to the appropriate government minister, depending on the subject matter of the regulations.

The matters which can form the subject of regulations are very wide-ranging, and include:

• Securing the health, safety and welfare of people at work.

• Protecting people other than those at work against risks to their health and safety arising out of work activities.

• Controlling the keeping and use of explosive or highly flammable or otherwise dangerous substances, and generally preventing people from unlawfully having and using these substances.

• Controlling the release into the atmosphere of noxious or offensive substances from premises to be prescribed by regulations.

Section 15 also makes provision for the repeal or modification of any existing statutory provisions. Other areas which might be covered, for example, are rules for handling and storage of particular substances, the monitoring of various aspects of the working environment, the provision of welfare arrangements, standards for noise and other environmental problems and modification of the arrangements for enforcement. The regulations thus made may apply generally or to particular groups, or specific industries, operations, substances, materials or premises.

Section 15(6) is an interesting subsection as it provides that regulations may:

• Specify who can be prosecuted for a breach of provisions, e.g. the persons or classes of person who are to be guilty of an offence whether in addition to, or to the exclusion of, other persons or classes of person.

• Provide for any specified defence to be available in proceedings for any offence under the relevant statutory provisions.

• Exclude proceedings on indictment for contravention of a requirement or prohibition imposed by health and safety regulations.

• Restrict the punishments which may be imposed for any breach of health and safety regulations.

Section 15 is important because it demonstrates how health and safety regulations can be made, modified or repealed and illustrates the importance of the Health and Safety Commission in the initiation of new health and safety regulations.

Role of the Secretary of State and the HSC in Making Regulations Section 15, HSWA gives the Secretary of State the power to make regulations for any of the general purposes of Part I of the Act, with the exception of matters relating exclusively to agriculture.

Proposals for regulations are submitted to the appropriate minister by the Health and Safety Commission after consultation with government departments, local authorities and other interested bodies. The proposals are often published and circulated in the form of a consultative document. Consultation would include such organisations as the CBI, TUC, local authority associations, individual employer associations, trade unions and bodies representing professional opinion. In some cases the Commission may invite comment from individuals but this is discretionary. In its final form the proposed regulation is laid before both Houses of



Parliament for 40 days, and if there are no objections it will become law. There are three significant drafts relating to regulations: made, laid, and coming into force.

Examples of Other Types of Delegated Legislation Regulatory Reform Orders This is issued as a type of Statutory Instrument, just like regulations. They are used to remove/amend/consolidate legislation that is considered burdensome – so long as the level of protection is not reduced.

Commencement Orders Issued as another type of Statutory Instrument, it simply brings into force a particular part of an Act that was not given immediate effect at the time the Act received Royal Assent (for whatever reason). There are a few strange examples (e.g. Easter Act 1928) that have still never been brought into force.

The recent Compensation Act 2006 was brought into effect in three stages after Royal Assent, by means of the Compensation Act 2006 (Commencement No. 1) Order 2006, the Compensation Act 2006 (Commencement No. 2) Order 2007 and the Compensation Act 2006 (Commencement No. 3) Order 2007. Introduction of the new legislation took place in stages between December 2006 and April 2007.

Orders in Council There are occasions when ordinary Statutory Instruments are not appropriate, e.g. transfer of powers between departments, and so Orders in Council are used instead. They are made by (and with the advice of) the Queen’s Privy Council. These are another form of delegated legislation and are used to give the force of law to administrative regulations drawn up by a government department. They are often used in times of national emergency. They were also used when Ministerial powers were devolved to the national assemblies of Wales and Scotland.

These should not be confused with “Orders of Council”, which are yet another form of delegated legislation.

Use of Socio-Technical Cost-Benefit Analysis in the Economic Assessment of Proposed Legislative/Regulatory Change When a proposal is put forward for a change in legislation or regulation it is extremely important that thought is given to the impact of the changes, particularly economic ones. It is no good introducing legislation which no-one can comply with because of the costs associated with it. On the other hand if the risks are so high that the costs are justified then consideration must be given to the changes.

An analysis of the socio-technical cost-benefits of proposed legislative or regulatory change should include the following:

• Description of the industries affected.

• Evaluation of the risks addressed.

• Assessment of the benefits attributable to the final standard.



• A determination of the technological feasibility of the new requirements.

• An estimate of the cost of compliance.

• A determination of the economic feasibility of compliance with the standard.

• An analysis of the economic and other impacts associated with the changes including those on small businesses.

Several pieces of legislation brought in over the past few years have had costs associated with them but these changes have been staggered over time to spread out the costs for businesses, e.g. the Provision and Use of Work Equipment Regulations 1992 (now 1998) where employers were given until 1997 to upgrade some older equipment. For this reason, it is essential that businesses and trade organisations are included in consultation regarding changes to associated legislation.



? Revision Questions

11. What is the difference between a Green Paper and a White Paper (apart from the colour!)?

12. How do Regulations made in the UK differ from Acts of Parliament?




STRUCTURE OF THE COURTS Functions, Jurisdiction and Powers of the Courts and Tribunals

The Court System There are two distinct systems - those courts dealing with criminal matters and those dealing with civil matters.

• Criminal cases are heard initially in the Magistrates' Court and may be referred to the Crown Court (in England and Wales) (see the following figure).

− The Magistrates' Court is the lowest of the courts; magistrates hear cases and sentence for the less serious offences. They also hold preliminary examinations into other offences to ascertain whether the prosecution can show a prima facie case, as a result of which the accused may be committed for trial at a higher court.

− The Crown Courts deal with serious criminal charges and appeals from Magistrates' Courts.

• Civil matters, e.g. civil claims in respect of personal injury, are dealt with in the County Courts or by the High Court according to the magnitude of the claim (see the next figure).

The three divisions of the High Court are Queen's Bench (contracts and torts), Chancery (land, wills, partnerships, companies, etc.) and Family. The Queen's Bench division has supervisory functions over the lower courts and tribunals (i.e. conducts judicial reviews).

Presiding over these court systems is the Court of Appeal which has two divisions: the Civil Division which hears appeals from County Courts and the High Court, and the Criminal Division which hears appeals from the Crown Courts.

The House of Lords only hears cases where there is an important point of law to be established.



HOUSE OF LORDS

COURT OF APPEAL (CRIMINAL) HIGH COURT (QBD)

CROWN COURT

MAGISTRATES' COURT

Key

Avenues of appeal

Committals/sentencing

Criminal Courts in England and Wales

HOUSE OF LORDS

COUNTY COURT

COURT OF APPEAL (CIVIL)

HIGH COURT (QBD) EMPLOYMENT APPEAL TRIBUNAL

EMPLOYMENT TRIBUNAL

Key

Avenues of appeal

Civil Courts in England and Wales

You may find it helpful to refer back to the figures as you work through this element, and in subsequent elements.




Scotland (Note that this section is relevant only to Scottish students. If you are not studying in Scotland, you may like to compare the differences between the two systems.)

The following figures outline the corresponding court structure for Scotland.

Key

Avenues of appeal

Committals/sentencing

Criminal Courts in Scotland

COURT OF CRIMINAL APPEAL

HIGH COURT OF JUSTICIARY

DISTRICT COURT

SHERIFF COURT

Solemn (Indictment) Summary



Key

Avenues of appeal

Civil Courts in Scotland

You may find it helpful to refer back to the figures as you work through this element and subsequently.

• Criminal

On the criminal side, the lowest court is the District Court, dealing with minor offences. The Sheriff Court can deal with all crimes which take place within its geographical jurisdiction except treason, murder, rape and incest, which are dealt with only by the High Court of Justiciary. The Sheriff Court is divided into Summary (minor offences) and Solemn (indictable offences). Appeals from both lie either to the High Court of Justiciary (Summary) or the Court of Criminal Appeal (Solemn).

Enforcement of breaches of health and safety law in the Scottish courts differs from English procedures. In Scotland, the enforcement inspector collects the evidence and passes it to the Procurator-Fiscal who decides whether to bring criminal proceedings. The maximum punishments in the Sheriff Court are normally a fine of £5,000 and six months' imprisonment. However, the increases brought about by the Offshore Safety Act 1992 apply equally in Scottish courts. Thus fines of up to £20,000 and six months' imprisonment may be imposed at the Sheriff Court (Summary) and unlimited fines and three years' imprisonment under the "Solemn" procedure.

HOUSE OF LORDS

SHERIFF COURT

ORDINARY CAUSES

SUMMARY CAUSES

EMPLOYMENT APPEAL TRIBUNAL

EMPLOYMENT TRIBUNAL

COURT OF SESSION

OUTER HOUSE

INNER HOUSE

FIRST DIVISION SECOND DIVISION


• Civil

On the civil side there is an Employment Appeal Tribunal but instead of a Magistrates' Court Scotland has the Sheriff Court dealing with "summary" and "ordinary" causes according to the financial sums involved. The higher courts are within a system known as the Court of Session, divided into two houses - an inner and an outer. The Outer House is similar to a County Court and the Inner House deals mainly with appeals.

Appeals from the Sheriff Court dealing with summary causes - amounts under £1,500 - go to the Second Division. Ordinary causes appeals - amounts over £1,500 - go to the First Division.

Note: One major difference between the two legal systems is that the House of Lords is not part of the Scottish criminal court structure. The High Court of Justiciary also sits as the Scottish Court of Criminal Appeal, hearing appeals from the High Court and from the Sheriff and District Courts. There is no appeal to the House of Lords from their decisions.

We shall now look at the individual courts in England and Wales in more detail.

Employment Tribunals Employment tribunals (which are just specialist Courts) were formerly known as industrial tribunals. These tribunals were first set up under the Industrial Training Act 1964 and now deal mainly with unfair dismissals and redundancy payment claims. Employment tribunals have the power to hear and adjudicate on matters relating to sex discrimination, race relations, trade unions, equal pay, employment protection, industrial relations issues and certain areas of health and safety.

Employment tribunals will be discussed in more detail later in this element.

Magistrates' Court All criminal cases are first dealt with by the Magistrates' Court.

Cases are heard by three lay magistrates or, in some courts, by a district judge (formerly known as a stipendiary magistrate) who is a legally qualified professional judge. Each Magistrates' Court has a legally qualified clerk who advises lay magistrates on points of law.

Procedurally, there are three types of offence that can be dealt with:

• A summary offence: can only be dealt with by a court of summary jurisdiction, i.e. a Magistrates' Court. Minor offences such as drunkenness, road traffic offences, etc. are dealt with without reference to another court.

• An indictable offence: results in a formal document, the indictment, being drawn up. The magistrates decide whether sufficient evidence exists (a prima facie case) to commit the accused to the Crown Court for trial. The magistrates therefore carry out committal proceedings. Magistrates' Courts act as courts of investigation for all cases, even murder cases. Indictable offences are the most serious and include murder, manslaughter and rape.

• Triable either way: depending upon the option exercised by the accused and the gravity of the offence. Most health and safety offences fall into this category.

In addition to their criminal jurisdiction, the Magistrates' Courts are engaged for much of their time in civil matters. For example, they have power to make separation orders (but not to grant divorces) and maintenance orders, and to make affiliation orders in cases concerning a



child's legitimacy. They deal also with licensing matters (Brewsters' Sessions) and the enforcement of payment of local authority council tax.

Crown Court The Crown Court hears all trials on indictment (the more serious crimes). It may sit anywhere in England and Wales. It is a superior court of record and, together with the Court of Appeal and the High Court, constitutes the Supreme Court.

Crown Court cases are heard by a judge and jury. In England and Wales, there are 12 members of the public on the jury and 13 in Scotland.

For the purposes of trial in the Crown Court, you should note the following points:

• Class 1 offences − the most serious offences, e.g. murder, must be tried by a High Court judge.

• Class 2 offences − e.g. rape, manslaughter, must also be tried by a High Court judge, unless the presiding judges release any particular cases to be tried before a circuit judge or recorder.

• Class 3 offences − i.e. all other offences which must be tried on indictment. These may be listed for trial by a High Court judge or by a circuit judge or recorder.

• Class 4 offences − i.e. all offences which may be tried on indictment or summarily, those which are both indictable and summary, those which carry more than three months' imprisonment on summary conviction, and certain specified offences, e.g. burglary, causing death by dangerous driving and robbery.

County Courts These courts do not exercise any criminal jurisdiction. England and Wales are divided into County Court circuits, and for the hearing the County Court judge sits alone.

A County Court has jurisdiction in many matters, but we are principally concerned with actions in contract and tort, when the court will hear cases where the compensation claimed does not exceed £50,000.

High Court of Justice The High Court of Justice consists of three divisions:

• The Family Division.

• The Chancery Division.

• The Queen's Bench Division (QBD).

In theory, they all have common jurisdiction, but in practice each division exercises its own jurisdiction.

Health and safety matters are referred to the QBD, which is presided over by the Lord Chief Justice.

The QBD deals with many different types of action, ranging from those concerning commercial law and Admiralty matters to contract and tort. Apart from hearing cases (a court of first instance) it may also sit as an appeal court known as the Divisional Court of the Queen's Bench



Division. It hears appeals by way of case stated from the Magistrates' Court or Crown Court. Either party to the proceedings in the lower courts can challenge the decision of the magistrates or the Crown Court judge on appeal from the magistrates, on a point of law, by stating a case to the High Court for their opinion. Should the Divisional Court disagree with the decision of the magistrates or the judge, it may:

• Reverse or amend the decision.

• Remit the case to the Magistrates' or Crown Court with instructions to reconsider the matter to discharge or convict the accused.

Court of Appeal As its title implies the Court of Appeal deals with appeals from the decisions or findings of the lower courts. The Court of Appeal ranks next to and below the House of Lords. There are two divisions of the Court of Appeal. You need to know a little about each.

• Criminal Division

This deals with appeals against sentences and convictions for offences dealt with at Crown Court. Permission to appeal is not always an automatic right.

• Civil Division

This deals with appeals from the High Court of Justice and the County Courts. The Civil Division cannot deal with criminal matters. It hears appeals from judgments or orders of the High Court, appeals from the County Court and certain other appeals.

House of Lords This is the highest court in the land. Each case is heard by five or, in very important cases, seven Law Lords. In England, Wales and Northern Ireland, they hear appeals from the Court of Appeal and occasionally directly from the High Court on both criminal and civil matters. They also hear civil cases from the Scottish Courts of Session.

Only cases on a point of law will be allowed permission to appeal to the House of Lords.

European Court of Justice (ECJ) We discussed the ECJ earlier in this element.

Basic Procedures for Prosecutions and Civil Actions Proceedings for any offence under HSWA can be commenced only by an inspector (or in Scotland by the Procurator-Fiscal) or with the consent of the Director of Public Prosecutions (DPP). In important or complex cases, the DPP may undertake the actual proceedings, particularly where the "public good" is concerned. Offences under the Act can be prosecuted as follows:

• Triable only summarily - Magistrates' Court.

• Triable only on indictment - Crown Court.

• Triable either way - Magistrates' or Crown Court.



Triable on ”indictment only” is the default position. That is, unless a statute specifically states anything else, an offence is presumed triable on indictment. Generally though, minor offences are dealt with by the Magistrates' Court and serious offences are dealt with by the Crown Court. The determining factors are:

• The gravity of the offence.

• The complexity of the case.

• The degree of punishment involved.

In offences triable either way (hybrid offences), the defendant can elect for either trial in a Magistrates’ Court or by “judge and jury” in a Crown Court. Most “either way” offences are dealt with summarily (Magistrates’ Court). The decision is based on the following factors:

• The magistrates may feel that the offence merits a heavier penalty than they can impose and therefore send the case to the Crown Court for trial.

• The prosecution may ask for trial on indictment (Crown Court).

• The accused may elect for trial by jury (Crown Court).

Procedure in Prosecution The enforcing authority identifies that an offence has been committed and decides to prosecute. The steps to be taken are then as follows:

• Information is laid before the magistrate (or clerk of the justice).

• A summons to appear before magistrates is served on the person or corporate body, or on a partner in a partnership.

• The examining magistrate has to decide whether there is a charge to be answered. It is not a trial in the accepted sense as the accused does not plead to the allegations. A single justice of the peace can sit as an "examining magistrate".

• The decision rests initially with the magistrate as to whether an offence will be tried summarily or on indictment. The court will take into account all the circumstances and any representations made by the prosecution and defence. This is called a “mode of trial” hearing.

• If it is decided that it can be dealt with summarily, the decision is explained to the defendant and he or she has to consent to summary trial, i.e. the defendant retains the right to elect for trial by “judge and jury” (Crown Court).

• If an offence is to be tried on indictment, the Magistrates' Court proceedings are known as committal proceedings.

You should be aware that there have been moves to dispense with committal proceedings under Section 44 of the Criminal Justice and Public Order Act 1994. However, this section has not yet been brought into effect by the Home Secretary.

• Magistrates may change their minds during the course of a trial or committal proceedings, for example:

− A case starts as summary. Up to the time of the conclusion of the prosecution evidence, the magistrates can decide that the matter should be dealt with on indictment. The magistrates then become "examining magistrates".



− A case starts as committal proceedings. The magistrates decide that the case can be dealt with summarily. The consent of the defendant is necessary in such cases.

Civil Procedures On 26 April 1999, new rules were introduced which changed the way civil claims are conducted. These apply to all personal injury cases. The old rules of court (in both the High Court and the County Court) have been replaced by the Civil Procedure Rules 1999 (CPR) which have been developed following the recommendations of Lord Woolf's report on Access to Justice published in 1996.

Before Woolf, prospective litigants were often deterred from starting an action due to the costs and possible delaying tactics of defendants. The new rules are intended to give the genuine claimant a better chance of achieving justice at a reasonable cost and within an acceptable period. Equally they should make it more difficult for a claimant with a poor or speculative claim to make any progress. The rules have an overriding objective of enabling the court to deal with cases justly.

Pre-Action Protocols To encourage early settlement before resorting to Court proceedings, a number of pre-action protocols have been developed that must be adhered to or otherwise the courts may impose sanctions. The personal injury pre-action protocol has been designed for accidents at work, slips, trips and road traffic accidents with a value of less than £15,000 and which are likely to be allocated to the fast track. Even though it has been designed for pre-action for these relatively small claims, the intention is that the spirit of it should be followed for larger claims (that would be destined for “multi-track” – see later).

The steps of the workplace accident pre-action protocol are as follows:

• Letter of Claim

The claimant sends the prospective defendant letters detailing a summary of the facts, the nature of any injuries, any financial losses incurred and requests details of the insurer.

• Defendant's Reply

The defendant should reply within 21 days, identifying the insurer (if any). If no reply is sent, the claimant may commence Court proceedings.

• Investigation

The defendant (in most cases the insurance company) then has up to three months to investigate the claim and to respond. The defendant may:

− Admit liability. The defendant will then be bound by this admission for all claims with a total value of up to £15,000.

− Deny liability either completely or partially. The defendant must give reasons why liability is not wholly accepted and must include documents which are relevant to the denial and of which the court would be likely to order disclosure.

The claimant must then decide whether to issue proceedings or abandon the claim.

During the operation of this protocol the parties involved are encouraged to enter into discussions and ideally to settle prior to starting proceedings so that litigation is seen as the last resort.



Proceedings An alternative procedure is possible but, under part 7 of the CPR, proceedings begin when the court issues a claim form (as requested by the claimant). The “claim form” was previously known as either the “County Court Summons” (in a County Court) or “High Court Writ” (in the High Court). The claimant uses this form to set out his claim (the facts of the case, the remedy sought). The claim form must then be served on the defendant. The defendant must file a defence document (to which the claimant can file a reply) which states (see Part 16 of the CPR):

• The facts which can be admitted.

• The facts which can be denied.

• The defence's version of events.

• The facts which the defendant cannot admit nor deny and which the claimant must prove.

Further documents that were not disclosed under the pre-action protocol may then need to be disclosed and a disclosure statement should also accompany these.

All cases are then allocated to one of three tracks (the parties fill out an allocation questionnaire which helps the Court decide). Allocation is governed mainly by the value of the claim which is, for the specific case of claims for damages for personal injuries (different thresholds apply to more general cases):

• Small claim track if damages are no more than £1,000.

• Fast track if damages are above £1,000 but do not exceed £15,000.

• Multi-track if damages exceed £15,000 or involve complex issues.

When it allocates a case to the fast track, the Court gives directions for the management of the case and sets a timetable for the steps to be taken between the giving of the directions and the trial. Multi-track cases allow the courts greater flexibility to deal with a broad range of complex cases and make use of a case management conference or a pre-trial review.

Procedures of Employment Tribunals in Matters of Health and Safety

Background As we have seen, employment tribunals were formerly known as industrial tribunals. These tribunals were first set up under the Industrial Training Act 1964 and now deal mainly with unfair dismissals and redundancy payment claims.

An employment tribunal is made up of a legally qualified chairperson, and two lay members, drawn from a panel of people with experience in industry, business, industrial relations and so on. Wherever possible, the lay members sitting on any case will be representative of both employers and employees. When all three members of a tribunal are sitting, the majority view prevails.

Functions of Tribunals Employment tribunals are essentially for dispute resolution between employer and employee. As we saw earlier, tribunals have the power to hear and adjudicate on matters relating to sex



discrimination, race relations, trade unions, equal pay, employment protection, industrial relations issues and certain areas of health and safety. With regard to health and safety, tribunals have authority in the following main areas:

• Time off for the training of safety representatives.

• Failure to pay a safety representative for time off for carrying out his/her functions and training.

• Failure of an employer to make a medical suspension payment.

• Dismissal, actual or constructive, following a breach of health and safety law and/or a term of an employment contract.

• Appeals against improvement and prohibition notices.

General Procedure The law relating to procedure in employment tribunals is now contained in the Employment Rights (Dispute Resolution) Act 1998. The detailed procedural rules are contained within The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (as amended). There are a number of variations but we shall just describe the general procedure (contained in Schedule 1 to the regulations).

The person making the complaint is called the claimant. The person complained against is called the respondent. Parties before tribunals can be represented either by lawyers or laymen, perhaps safety practitioners and trade union officials. An application is made by the claimant to the tribunal office (on an official form) setting out the claim (names and addresses, nature of claim, etc.). Time limits may apply, for example, complaints concerning the safety representative's time off with pay must be presented within three months of the failure; or, if this is not reasonably practicable, within such further period of time as the tribunal considers being reasonable.

The respondent (employer) is notified and indicates whether he admits the claim or intends to resist. If he resists, he must specify on what grounds. A date is then fixed for the hearing and both sides are told that they may appear in person or be represented by a solicitor, barrister, trade union representative, employer association representative or, with the tribunal's consent, by any other person.

There are several types of hearing:

• Case Management Discussions – used to clarify issues, make orders for document disclosure, witnesses, etc.

• Pre-Hearing Review – can be used e.g. to weed out weak claims (during which the parties may need to present evidence and witnesses, if any). It may help to discover if the matter can be resolved between the parties or if a case does, in fact, exist for a full tribunal to decide upon.

• Final Hearing (i.e. when the judgment is given).

The tribunal chairman has wide powers to manage the case, including ordering disclosure of documents (either on his own initiative or on application by either party). Documentary evidence is very important in the tribunal procedure.

The tribunal can order the attendance of witnesses and the giving of evidence on oath. However, there are no strict rules concerning the admissibility of evidence. Both parties can make opening statements, call witnesses, cross-examine witnesses called by the other party



and, if desired, give evidence on their own behalf. Proceedings tend to be less formal than in court and costs are not usually awarded (though they may be).

Though there are no absolute rules of hearing procedures, in a final hearing, the following is usually followed:

• Unfair dismissal: the respondent gives evidence and calls witnesses first.

• Discrimination: the claimant gives evidence and calls witnesses first.

Both parties can then each cross-examine witnesses, engage in re-examination (giving of further evidence to clarify matters raised under cross-examination) and, towards the end of the proceedings, sum up. The tribunal then retires to consider judgment. Tribunal decisions are not regarded as precedents but are valued for their reasoning and guidance.

A tribunal has to follow two main unwritten laws of common law:

• The rule against bias: no man may be a judge in his own cause.

• Audi alteram partem: you must always hear the other side.

Appeals can be made on points of law but not on the facts. In practice, though, it is difficult to determine between the two and the right to appeal is almost universal.

However, the three courts of appeal have made it a rule not to alter decisions unless a clear error of law is involved. The three law courts involved in appeal are the Divisional Court, the Court of Appeal and the House of Lords.

Appeals on all matters (other than against improvement/prohibition notices) go to the Employment Appeal Tribunal (EAT) which is a specialised court consisting of a High Court judge and two laymen chosen from each side of industry. Procedure is less formal than in court and legal representation is not insisted upon. Costs are not usually awarded and the emphasis is upon simplicity and speed. A further appeal may be made to the Court of Appeal.

Procedure in Relation to Appeals against Improvement/Prohibition Notices The tribunal itself also deals with appeals from employers concerning the service of improvement or prohibition notices. Such an appeal must be made to the tribunal within 21 days from the date of service of the notice. The tribunal may affirm or cancel the notice. If it affirms the notice it can modify it by way of amendments, omissions or additions.

The tribunal decision can be challenged either by a “review of decision” to the tribunal itself (certain very limited circumstances) or by appeal on a point of law to the High Court (Administrative Court of the Queen’s Bench Division).

Rights and Responsibilities of Accused Parties and Witnesses There are a number of different rights conferred on individuals. Basic rights are contained within the Human Rights Act 1988, which incorporates the European Convention on Human Rights into English law. Under the Act, the accused (defendant) at least has the right to a fair trial, which includes the right to:

• A fair hearing, e.g. access to evidence, cross-examination of witnesses, etc.

• A public hearing (subject to restrictions).



• A hearing before an independent and impartial tribunal.

• A hearing within a reasonable period of time.

There are additional rights for criminal cases, e.g. “right to silence”, presumption of innocence until proven guilty.

Additionally, it is a criminal offence for anyone to intimidate witnesses.

The “right to silence” may be illustrated by the following example. When carrying out an investigation, an enforcing officer has the power (under Section 20, HSWA) to require any person (including witnesses and potential defendants) to answer any questions that the officer may think fit. The interviewee may also be required to sign a declaration of the truth of the answers, which may be used as evidence in court (with some restrictions).

If, during the interview, it becomes clear that the interviewee may become a defendant in any possible prosecution then the officer must officially caution that person as required under the Police and Criminal Evidence Act 1984. At this stage, the interviewee has a right to silence where they feel that answering any more questions may incriminate them.

The Appeals System In our study of the court structure and legal procedures we have noted various channels of appeal. Here it is appropriate to summarise the appeals procedure in criminal cases.

Where someone is convicted of a summary offence there is right of appeal to a Crown Court against:

• Conviction, sentence or both, if the accused pleaded not guilty.

• Sentence only if he pleaded guilty.

The prosecution has no right of appeal.

The Court of Appeal, Criminal Division, hears appeals from the Crown Court.

For details regarding appeals against Employment Tribunal findings, see the previous subsection entitled "Procedures of Employment Tribunals in Matters of Health and Safety".



? Revision Questions

13. Which division of the High Court deals with personal injury cases?

14. In which three areas does the European Court of Justice have jurisdiction?

15. Most health and safety offences are said to be "triable either way". What does this mean?

16. Under the new civil procedures a personal injury claim is allocated to one of three tracks. What is the main criterion for allocating a particular case to a particular track?

17. What health and safety issues does an Employment Tribunal decide?




ENFORCEMENT OF HEALTH AND SAFETY LAW Authorities Empowered to Enforce Health and Safety Legislation Identification of the organisations responsible for the enforcement of health and safety legislation is dealt with under Section 18 of HSWA. The enforcement authorities are essentially the Health and Safety Executive itself and local authorities. You need to know which authority is responsible for which type of industrial or commercial activity. As a general rule, the HSE is the enforcing authority for industrial premises and the local authority is responsible for commercial premises within its area. There is an exception (as always) to the general rule. Neither the HSE nor the local authority can enforce provisions in respect of its own premises, so they inspect each other's premises.

Division of Responsibilities Between Enforcing Authorities The arrangements for the division of enforcement responsibilities are contained in the Health and Safety (Enforcing Authority) Regulations 1998. The following lists are indicative only; it is in reality a moving target as responsibilities can be (and often are) transferred. (Note that you are not expected to memorise them.)

Activities Enforced by the HSE • Any activity in a mine or quarry (other than abandoned).

• Any activity in a fairground.

• Any activity in premises in relation to broadcasting, recording or filming.

• The following activities carried on at premises by persons who do not normally work in the premises:

− Construction work, if any of the following apply:

− Regulation 21 of the Construction (Design and Management) Regulations 2007 (which requires projects which include or are intended to include construction work to be notified to the Executive) applies to the project which includes the work.

− The whole or part of the work contracted to be undertaken by the contractor at the premises is to the external fabric or other external part of a building or structure.

− It is carried out in a physically segregated area of the premises, the activities normally carried out in that area have been suspended for the purpose of enabling the construction work to be carried out, the contractor has authority to exclude from that area persons who are not attending in connection with the carrying out of the work, and the work is not the maintenance of insulation on



pipes, boilers or other parts of heating or water systems or its removal from them.

− The installation, maintenance or repair of any gas system, or any work in relation to a gas fitting.

− The installation, maintenance or repair of electricity systems.

− Work with ionising radiations except work in one or more of the categories set out in Schedule 3 to the Ionising Radiations Regulations 1999.

• The use of ionising radiations for medical exposure.

• Any activity in premises occupied by a radiography undertaking in which any work with ionising radiations is performed.

• Agricultural activities, and any activity at an agricultural show, which involves the handling of livestock or the working of agricultural equipment.

• Any activity on board a sea-going ship.

• Any activity in relation to a ski slope, ski lift, ski tow or cable car.

• Fish, maggot and game breeding except in a zoo.

• Any activity in relation to a pipeline within the meaning of Regulation 3 of the Pipelines Safety Regulations 1996.

In addition the HSE is the enforcing authority for the following:

• A county council.

• Any other local authority.

• A parish council.

• A police authority or the Receiver of the Metropolitan Police.

• A fire authority.

• A headquarters designated for the purposes of the International Headquarters and Defence Organisation Act 1964.

• A service authority of a visiting force within the meaning of the Visiting Forces Act 1952.

• The United Kingdom Atomic Energy Authority.

• The Crown.

Activities Enforced by Local Authorities • The sale of goods, or the storage of goods for retail or wholesale distribution, except:

− at container depots where the main activity is the storage of goods in the course of transit to or from dock premises, an airport or a railway;

− where the main act is the sale or storage for wholesale distribution of any substance or preparation dangerous for supply;

− where the main activity is the sale or storage of water or sewage or their by-products, or natural or town gas;



and where the main activity carried on in the premises is the sale and fitting of motor car tyres, exhausts, windscreens or sunroofs, the main act shall be deemed to be the sale of goods.

• The display or demonstration of goods at an exhibition for the purposes of offer or advertisement for sale.

• Office activities.

• Catering services.

• The provision of permanent or temporary accommodation including the provision of a site for caravans.

• Consumer services provided in a shop except dry cleaning or radio and television repairs.

• Cleaning (wet or dry) in coin-operated units in launderettes and similar premises.

• The use of a bath, sauna or solarium, massaging, hair transplanting, skin piercing, manicuring or other cosmetic services and therapeutic treatments, except where they are carried out under the supervision or control of a registered medical practitioner, a dentist registered under the Dentists Act 1984, a physiotherapist, an osteopath or a chiropractor.

• The practice or presentation of the arts, sports, games, entertainment or other cultural or recreational activities except where the main activity is the exhibition of a cave to the public.

• The hiring out of pleasure craft for use on inland waters.

• The care, treatment, accommodation or exhibition of animals, birds or other creatures, except where the main activity is horse breeding or horse training at a stable, or is an agricultural activity or veterinary surgery.

• The activities of an undertaker, except where the main activity is embalming or the making of coffins.

• Church worship or religious meetings.

• The provision of car parking facilities within the perimeter of an airport.

• The provision of child care, or playgroup or nursery facilities.

The responsibility for enforcement of any of the relevant statutory provisions in any particular premises may be transferred, by agreement, from the Executive to the local authority and vice versa.

Powers of Enforcing Authorities and Their Inspectors HSWA lays down strict requirements in respect of health and safety, and that no-one, with the exception of domestic servants, is outside its scope. Employers, the self-employed and employees alike must conform to the Act or face the consequences. We shall now examine the role and the powers of those persons whose job it is to enforce the law and to bring offenders before the courts.

Section 19 states that every appointment of a person as an inspector shall be made in writing specifying which powers conferred on him by the relevant statutory provisions are exercisable by him. He may only exercise the powers specified and only within the field of responsibility of the authority which appointed him. The powers may be varied by the enforcing authority.



When acting as an inspector he must produce, on demand, his instrument of appointment, known as a warrant card.

The general powers of an inspector, under Section 20, are as follows (for "he" please read "he/she"):

• He may, at any reasonable time or at any time where he is of the opinion that a dangerous state exists, enter any premises which he has reason to believe it is necessary for him to enter, in order to exercise his powers.

• He may take a police officer with him if he has reasonable cause to believe he may meet with serious obstruction in the execution of his duty. He may also take with him any other person duly authorised by his enforcing authority, and any equipment or materials required for any purpose for which the power of entry is being exercised.

• He may make any necessary examinations and investigations.

• As regards any premises which he has power to enter, he may direct - and these directions must be obeyed - that those premises or part of them or anything in them, e.g. machinery, shall be left undisturbed for so long as is reasonably necessary for the purpose of investigation or examination.

• The inspector may take photographs and such measurements as he deems necessary. He may also take samples, e.g. dust, of any articles or substances found in any premises he has entered and of the atmosphere in or around the premises.

• In the case of any article or substance which he decides is likely to cause danger to health and safety, he may cause it to be dismantled or subjected to any process or test. (In certain extreme cases, he has the power to destroy articles, etc.)

• He may retain any article or substance for such time as is necessary for examination, or so as to ensure it is available for use as evidence in any court proceedings.

• He may require any person (and this requirement extends outside a place of work), whom he has reasonable grounds for believing may be able to give information relevant to any examination or investigation he is concerned with, to answer such questions as the inspector thinks fit to ask, and to sign a declaration of the truth of his answers. The person being questioned may have someone nominated by him present, as may the inspector.

• He may require the production of, inspect and take copies of any books or documents (or any entries therein) which are required by regulations to be kept. The inspector may also see and take copies of any other documents or books, and he may require any person to afford him facilities and assistance with respect to any matter within that person's control.

• In addition, he may exercise any other powers necessary to enforce relevant health and safety law.

• The Secretary of State may make regulations governing the taking of samples by an inspector and where the inspector proposes to take samples he shall, if required, do so in the presence of a person having responsibilities for the premises, unless he considers that the person's presence would be prejudicial to the safety of the state.

• Where an inspector takes possession of any article or substance under the authority vested in him, he shall leave at the premises, either with a responsible person or, if that is not practicable, fixed in a conspicuous place, a notice identifying the substance or article and stating that he has taken possession of it. If practicable, where a sample has been taken, the inspector shall give a portion of it to a responsible person.



It is important to note that nothing in this section of the Act shall be taken to compel any person to produce a document which he would, on grounds of legal professional privilege, be entitled to withhold on any order for disclosure of documents in an action in the High Court or in the Court of Session (Scotland).

Obligations of Enforcing Officers Under Section 28(9) of HSWA, as amended by the Employment Protection Act 1975, anyone who may be a party to civil proceedings (employer, employee or person in control of premises) may obtain from an inspector a written statement of relevant factual information obtained by the inspector in exercise of his powers.

Under Section 27 of HSWA the Health and Safety Commission can require any person to provide specific information concerning health and safety matters, either to the Commission itself or to an enforcing authority. Under Section 20, an enforcement inspector can require any person to answer any relevant questions pertaining to an investigation and sign a declaration as to the truth of his statement. Under Section 14, the Commission has the power to direct investigations and to hold enquiries in which persons may be summoned as witnesses, documents produced and evidence taken on oath. The HSE and its inspectors therefore have very wide statutory powers to obtain information.

Inevitably, the HSE inspectors will acquire a great deal of information concerning the business under investigation that is not relevant to the investigation but which would be very useful to a competitor. There is a safeguard in the Act which protects the interests of the business concerned, in Section 28 which states:

"A person shall not disclose any information obtained by him as a result of the exercise of any power conferred by Section 14 or 20 (including, in particular, any information with respect to any trade secret obtained by him in any premises entered by him by virtue of any such power) except:

(a) for the purposes of his functions; or

(b) for the purposes of any legal proceedings, or any investigation or inquiry held by virtue of Section 14… or for the purposes of a report of any such proceedings or inquiry or of a special report made by virtue of Section 14…; or

(c) with the relevant consent."

The section applies to all information obtained under the Act which is provided in compliance with any of its relevant provisions. Information must not normally be disclosed except with the consent of the person providing it and, as "trade secrets" are specifically mentioned, this is rigorously observed.

Section 28, as well as preserving confidentiality, makes provision for the disclosure of information in certain circumstances. These are as follows:

• For the purposes of any legal proceedings or any investigations or enquiry held at the request of the Commission.

• With the relevant consent, i.e. of the person making the statement or of the person in control of the premises where the statement was obtained.

• For the purposes of providing employees or their representatives with information about matters affecting their health and safety and welfare. This relates to information obtained by an inspector during the course of an investigation. The information will be factual



about what he has found and what action, if any, he intends to take. Any information thus supplied to an employee must be equally given to his employer.

There are moves to amend or abolish Section 28, HSWA in the light of the Freedom of Information Act 2000 (FOIA) (which came fully into force on 1st January 2005). The FOIA places a duty on public authorities to disclose information held by them when so requested (Section 1), but there are legitimate exemptions from such disclosure (including specific health and safety exemptions in S38, FOIA). The FOIA gives power to the Secretary of State to amend or repeal enactments which prohibit disclosure of information held by a public authority (Section 75). See also the discussion on whistle-blowers earlier in this element.

Offences and Maximum Penalties Under the Law We noted earlier that criminal offences are classified as summary, indictable, or those which can be tried either summarily or on indictment (either way or hybrid). Offences under HSWA are triable summarily only or triable either way. The majority of offences are dealt with under the "either way" procedure.

Section 33 of the Act deals with the breaches of health and safety legislation and applicable penalties both summarily (in a Magistrates' Court) and on indictment to a higher court. The main points are highlighted below.

Summary Offences • Contravening a requirement imposed under HSWA, Section 14 (power of the Health and

Safety Commission (HSC) to order an investigation).

• Contravening a requirement imposed by an inspector under Section 20 (powers of inspectors) or Section 25 (power to deal with imminent danger).

• Preventing or attempting to prevent a person from appearing before an inspector, or from answering his questions.

• Intentionally obstructing an inspector.

• Falsely pretending to be an inspector.

Either Way Offences • Failure to carry out one or more of the general duties of HSWA, Sections 2-7.

• Contravening:

− HSWA, Section 8 - intentionally or recklessly interfering with anything provided for safety.

− HSWA, Section 9 - levying payment for anything that an employer must by law provide in the interests of health and safety, (e.g. personal protective clothing).

• Contravening any health and safety regulations.

• Contravening a requirement of an Improvement Notice or a Prohibition Notice.

• Intentionally or recklessly making false statements, where the statement is made in either of these cases:

− To comply with a requirement to furnish information.

− To obtain the issue of a document.



• Intentionally making a false entry in a register, book, notice, etc., which is required to be kept.

• There are also offences to do with activities requiring a licence and also acquiring, possessing or using explosives.

Maximum Penalties Summary Conviction On summary conviction at a Magistrates' Court the maximum penalties are:

• £20,000 for breaches of Sections 2 to 6 of HSWA.

• £20,000 and/or six months' imprisonment for breaches of Improvement or Prohibition Notices.

• £5,000 for obstructing an inspector or other breaches of the remaining sections of HSWA, subordinate regulations, such as the Management of Health and Safety at Work Regulations 1999 or any other relevant statutory provisions.

Conviction on Indictment For conviction on indictment at a Crown Court, the accused faces an unlimited fine. In the following cases there may also be two years' imprisonment:

• Certain offences involving required licences.

• Certain offences involving explosives.

• Contravention of an Improvement or Prohibition Notice.

It is worth noting that, following non-compliance with an Improvement Notice or a Prohibition Notice, where a person, after conviction, continues to contravene the Improvement Notice or Prohibition Notice, he is liable to a maximum fine of £200 for every day that non-compliance continues.

Options for Enforcement Action In regard to seeing the practical workings of health and safety enforcement by the HSE, a good place to start is the HSE’s enforcement website (www.hse.gov.uk/enforce/index.htm). The website is a very useful resource which contains things such as HSC's general enforcement policy and their enforcement guide (enforcement options, types of offences, trial procedures, rules of evidence, etc.); it also links to the HSE's enforcement notices and prosecutions database. The HSC basic approach to enforcement (enforcement policy) can be viewed directly at www.hse.gov.uk/pubns/hsc15.pdf. The prosecutions database can be viewed at www.hse-databases.co.uk/prosecutions/ and the notices database at www.hse-databases.co.uk/notices/ (you can search on recipient, region, industry, etc.).

Prosecution You will remember that we looked at health and safety prosecutions (summary, indictable and hybrid offences) and the related procedure earlier. You will find it helpful to revise this topic now.



Formal Cautions “A formal caution is a statement by an inspector, that is accepted in writing by the duty holder, that the duty holder has committed an offence for which there is a realistic prospect of conviction. A formal caution may only be used where a prosecution could be properly brought. ‘Formal cautions’ are entirely distinct from a caution given under the Police and Criminal Evidence Act by an inspector before questioning a suspect about an alleged offence. Enforcing authorities should take account of current Home Office guidelines when considering whether to offer a formal caution.”

Source: HSC15, Enforcement Policy Statement, HSE

Formal cautions are rare in practice. They are discussed in outline in the enforcement guide on the website referred to above. There is also a very useful HSE operational circular (OC 130/7) which describes when they might be used.

Enforcement Notices Within our present judicial system, the time interval between the detection of a criminal offence and its prosecution before the appropriate court is fairly lengthy. Robens recognised the need to remedy breaches of health and safety as quickly as possible and to that end introduced the enforcement notice procedure as a principal weapon in the inspector's armoury. A prosecution may still ensue but, as we shall see, the enforcement notice provides inspectors with an on-the-spot remedy for offences and offenders.

Improvement Notices (Sections 21 and 23) The notice may be issued for any activities to which relevant statutory provisions apply. If an inspector is of the opinion that a person is contravening one or more of the relevant statutory provisions, or has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated, he may serve on him a notice stating his opinion, with reasons, and requiring that person to remedy the contravention within a specified period. The period must not be less than the period within which an appeal against the notice may be brought; this period is 21 days.

Beyond that, the period allowed is left to the inspector's discretion and will be governed by the seriousness of the matters involved and the length of time and ease with which the necessary action can be taken to comply with the notice.

As supplementary information (S23), the notice may (though it doesn’t have to) include what action the inspector considers necessary to put matters right. To this end, the inspector may offer a choice of remedies and/or refer to an Approved Code of Practice (which may also offer a choice of remedies). If the improvement notice relates to improvements to the building, then the inspector cannot impose requirements that are more onerous than the current building regulations. If improvements concern a means of escape, the notice cannot be issued without prior consultation with the Fire Authority (though you should note that Article 47 of the Regulatory Reform (Fire Safety) Order 2005 disapplies HSWA in regard to general fire precautions in most cases).

An improvement notice is served on the person responsible for the breach of the law. If the law being breached imposes obligations on employers but the actual breach is by an employee, then the notice is served on the employer.

As from April 1998, inspectors proposing to issue an improvement notice must discuss with the duty holder the breaches of law involved and the remedial action required. This gives the duty



holder the opportunity to discuss and resolve the situation before any official action need be taken.

Prohibition Notices (Sections 22 and 23) This is a more severe type of notice. It is issued where the inspector is of the opinion that the activities involve, or may involve, the risk of serious personal injury, e.g. a machine which is not adequately guarded. The prohibition notice shall state that the inspector is of the opinion as mentioned and shall specify the matters which give rise to the risk and, most important, direct that the activities to which the notice relates shall not be carried on by or under the control of the persons on whom the notice is served unless the matters specified in the notice have been remedied. Such direction shall take immediate effect if the inspector is of the opinion that the risk of personal injury is or will be imminent; in any other case, it shall have effect at the end of a period specified in the notice.

As in the case of improvement notices, the prohibition notice may also contain supplementary information (as per S23, HSWA). That is, the notice may (though it doesn’t have to) include what action the inspector considers necessary to put matters right (including a choice and/or reference to ACoPs). The requirement for prior consultation with the Fire Authority in “means of escape” matters also applies to prohibition notices.

A prohibition notice, unlike an improvement notice, is served on the person carrying on the activities concerned. There is no requirement that a contravention of health and safety law is taking, or has taken, place.

For example, the person operating an unguarded machine would have the notice served on him even though the legal requirements for guarding the machine were the responsibility of his employer. However, the inspector in such circumstances would serve a copy of the notice on the employer as soon as possible. Notices are normally served personally and immediately 'on the spot', especially in the case of a prohibition notice, where the object is to stop the activity immediately.

We can summarise the main differences between the two types of notice as follows:

• Prohibition notices are served in anticipation of danger - that the activities present a risk of serious personal injury - whereas an improvement notice is served where a contravention of health and safety law is taking place, has taken place, and is likely to continue (and is not necessarily dangerous).

• With prohibition notices, there is no requirement that a contravention of health and safety law is taking, or has taken, place.

Deferral (Section 23) In those cases where a notice (either improvement or prohibition) has been served but is not to take immediate effect, it may be withdrawn by an inspector at any time before the end of the period specified in the notice. Also, the period specified may be extended or further extended by an inspector at any time provided an appeal against the notice is not pending.

Appeals (Section 24) The appeals procedure is contained in outline within S24 of HSWA and also (in considerably more detail) in Schedule 4 to The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (as amended).



Appeals against a notice must be made to an employment tribunal within 21 days of service of the notice. The tribunal may extend the time limit for appeal if it is satisfied that it was not reasonably practicable to appeal within the period.

The appeal must be in writing and addressed to the appropriate secretary of the tribunals for England and Wales or Scotland. The appeal should contain the following information:

• Name and address of appellant.

• Date of the notice appealed against.

• Address of the premises concerned.

• Name and address of the issuing inspector.

• Which aspect of the notice is being challenged.

• The grounds for the appeal, which are mainly:

− Wrong legal interpretation by the inspector.

− The inspector has exceeded his powers.

− Breach of law is admitted but the suggested remedy is not "practicable" or "reasonably practicable" according to the particular statute.

− Breach of law is admitted but insignificant.

For an improvement notice, the bringing of an appeal has the effect of suspending the operation of the notice until the appeal is heard or withdrawn. For a prohibition notice, the bringing of the appeal may have this effect if, but only if, the appellant applies for the notice to be suspended and the tribunal so directs. One or more assessors may be appointed for the purposes of any proceedings brought before the tribunal.

An employment tribunal hearing an appeal against an enforcement notice has the following options available:

• Affirm the notice (i.e. uphold – with or without modifications, including extension of time period).

• Cancel the notice.

Contravention of the terms, or requirements, imposed by either a prohibition or an improvement notice is an offence and may result in criminal proceedings being instituted against the offender by the inspector issuing the notice.

Prosecution in Magistrates' Court by Enforcement Officers (Section 39) Section 39 states:

"An inspector, if authorised in that behalf by the enforcing authority which appointed him, may although not a counsel or a solicitor, prosecute before a Magistrates' Court proceedings for an offence under any of the relevant statutory provisions.

This does not apply in Scotland."

Basically, this means that enforcement officers can lead prosecution proceedings in the Magistrates' Court but not in a higher court.



Implications of Sections 36 and 37 of HSWA and MHSW Regulation 21

Offences Due to Fault of Other Persons (Section 36) You must understand Section 36 of the Act in order to distinguish where the responsibility for the commission of offences falls. Many companies delegate some of their management functions to employees: personnel, safety, training and works managers, for example, as well as to external people, such as contractors and consultants. When offences are committed against HSWA and fall within the individual responsibilities of these persons, who is liable to be prosecuted - the individual, the company or both? Section 36(1) states:

"Where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with, and convicted of, the offences by virtue of this subsection whether or not proceedings are taken against the first mentioned person."

At first sight, the section seems to indicate that the company, having delegated functions to another person, can escape prosecution in the event of an offence. In cases of strict liability, delegation of the function does not absolve the company from its liability, and it will therefore be equally guilty of a criminal offence committed by one of its employees. Strict liability will be discussed in detail in Element A9.

Where there is no strict liability involved and there is no attributable knowledge, connivance or neglect by the company, the "other person" - the safety officer, works manager, etc. - would be personally liable.

Perhaps the best way to understand its meaning is to paraphrase Section 36 as follows:

"Where the commission by any person (a body corporate) of any offence is due to the act or default of some other person (the safety officer), that other person (the safety officer) shall be guilty of the offence and a person (the safety officer) may be charged and convicted of the offence whether or not proceedings are taken against the first mentioned person (a body corporate)."

Thus, in many cases there will be breaches by employer (under Section 2) as well as employee (Section 7). The breach of the employer’s duties may well have been caused by the failure of an individual within the company to discharge his responsibility. However, the employer cannot delegate his responsibility under the Act (even if he delegates the implementation of it). The HSE may choose to prosecute both or just one (though prosecution of an employee under S36(1) is comparatively rare).

There have been a number of prosecutions of consultants under S36(1). One example is that of a consultant who was hired by a woodworking company to conduct airborne monitoring of wood dust. The consultant poorly advised the woodworking company (concluding that exposure to wood dust was adequately controlled, when it was not), because he failed to conduct adequate sampling. As a result, the woodworking company breached their duty under the then COSHH Regulations to adequately control exposure. By virtue of S36(1), the consultant was prosecuted for the breach of COSHH.

In another example, a consultant (a Mr Hooper) was hired by a joinery company to conduct a risk assessment on a spindle-moulding machine. His assessment was seriously deficient in that it failed to identify some significant dangers of using the machine (he had little experience



of this type of machine). The deficiency caused the client to breach its duty to conduct suitable and sufficient risk assessments under the Management of Health and Safety at Work Regulations, which was a significant contributor to an injury to one of the client’s employees that happened some time later. The consultant, by virtue of S36(1), was charged with a breach of MHSWR. These, and other cases, can be viewed on the HSE’s enforcement website (prosecutions database).

Application of Section 36 to the Crown Section 48 of the Act states that Sections 21-25 (Notices) and 33-42 (Offences and Prosecutions) do not apply to the Crown, which cannot be prosecuted. Thus, enforcement and penalties of HSWA do not apply to the Crown (including departments of State). All the other requirements of the Act are binding on the Crown equally as on other employers. In a parallel to what we have stated earlier for “other persons”, Crown employees (individual civil servants) may be prosecuted individually for any breaches of the Act which they cause the Crown to commit; this is so, even though the Crown itself cannot be prosecuted. This is stated in Section 36(2):

"Where there would be or have been the commission of an offence under Section 33 by the Crown but for the circumstances that that section does not bind the Crown, and that fact is due to the act or default of a person other than the Crown, that person shall be guilty of the offence which, but for that circumstance, the Crown would be committing or would have committed, and may be charged with and convicted of that offence accordingly."

Offences by Body Corporate (Section 37) Section 37 states:

"(1) Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of any director, manager, secretary or other similar officer ... or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, the preceding subsection shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he was a director of the body corporate."

“Consent” generally means agreeing to a course of action; connivance is more indirect agreement to unlawful acts by another (i.e. “turning a blind eye”); neglect is “not doing what you should have done” (i.e. an omission rather than an act, so things happen by default because you failed to act).

What this means in fact is that senior members in the management of a company (as well as the company itself) may be individually liable for breaches of the law. The board of directors, individual functional directors and senior managers can all be prosecuted under this section. A successful prosecution would require the guilty mind of the individual director, etc. to be proved.

There have been a number of successful prosecutions of directors under S37(1). For example, the Director (a Mr Broadbent) of a Timber Merchants was charged under S37(1) following an investigation of a fatality (involving a forklift truck on a public road). The company was charged under S3, HSWA and also under the Management of Health and Safety at Work



Regulations (risk assessment). However, the director was also charged under s37(1) as it was shown that the company breaches resulted from his neglect.

MHSW Regulation 21 You also need to be aware of the significance of Regulation 21 of the Management of Health and Safety at Work Regulations 1999. This reads as follows:

"Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of –

(a) an employee of his, or

(b) a person appointed by him under regulation 7."

In other words, an employer cannot escape liability for the commission of an offence by pleading that one of his employees or a competent person appointed by him was responsible. However, in practice, the HSE will take all the circumstances into account in deciding who to prosecute. For example, the employer may have taken considerable steps to assure himself of the competency of persons he appoints - see L21, the ACoP/Guidance on the Management of Health and Safety at Work Regulations 1999.

Relevant Case Law Consider the case of Armour v. Skeen (1977). A workman fell to his death while repairing a road bridge. Mr Armour was the Director of Roads for the council and he had not formulated a written safety policy for road work as required by his employer. His defence argued that he was under no personal duty to carry out the council's statutory duties. This was, however, rejected and he was convicted.

The case of R v. British Steel plc (1994) reinforces the concept that corporations cannot avoid liability simply because the act causing the breach was carried out by someone who was not the directing mind of the company. Nor can they avoid responsibility simply by taking reasonable care to delegate responsibility. By contrast, in the case of R v. Nelson Group Services (Maintenance) Limited (1999), the Court of Appeal stated that an isolated act of negligence by an employee carrying out work on behalf of the company does not stop that employer from establishing a defence that it has done everything that is reasonably practicable. However, the circumstances where such a defence may be established are likely to be rare.

Further details on these cases can be found in the RRC Health and Safety Law and Case Law Guide.

Effect on Criminal Proceedings of Section 40 of HSWA An important provision of HSWA is the shifting onus of proving the limits of what is practicable. You have learned that the standards of proof in civil and criminal law are not the same. You will recall that civil law requires proof of commission of an act, or offending by omission, based on a balance of probabilities, i.e. that the person more likely than not is guilty of the offence, whereas criminal law requires the prosecution to prove that the person committed the offence or guilty act beyond a reasonable doubt.

Section 40 states that:

"In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is



practicable or so far as is reasonably practicable, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement."

This makes the task of the prosecution much easier than in the normal criminal trial procedure. The prosecutor must first prove a prima facie case (i.e. the “bare bones” of the case) beyond all reasonable doubt:

• That the breach of regulations took place; and

• That the accused was responsible for the breach.

Once these facts have been established, the burden then switches to the defendant to prove, on a balance of probabilities, one of the following (the issue of foreseeability is important here):

• It was not practicable.

• It was not reasonably practicable.

• There were no better practicable means than those used to discharge the duty.

If the accused is unable to accomplish any of these requirements, the case against him will be considered to be proved.

Application of Manslaughter and Corporate Manslaughter to Work-Related Incidents It is worth pointing out at the beginning that corporate manslaughter is nothing whatever to do with Section 37 of the Health and Safety at Work, etc. Act 1974 (discussed earlier). This has been a common source of confusion by some NEBOSH Diploma students because of the references to prosecution of individual directors as well as the company itself.

At present a death at work involves an investigation by the enforcing authority. A workplace death will also occasion an investigation by the police. There is now much more liaison between the health and safety enforcing agencies and the Crown Prosecution Service, who can institute proceedings for manslaughter or corporate manslaughter (the HSE are not empowered to do so). Even then only in a minority of such accidents is there a prosecution against the company under the Health and Safety at Work, etc. Act 1974 and typically a fine of on average £5,000 imposed in a Magistrates' Court. The reason for the perceived low penalties for such accidents is that health and safety law does not reflect the consequence of the non-compliance. A failure to ensure the health and safety of an employee or anybody affected by the business may result in no harm or, in extreme cases, may result in multiple fatalities. The fact that death has occurred is usually incidental to the outcome of the prosecution.

Until 6 April 2008 corporate manslaughter was a category of the common law offence of involuntary manslaughter. It is important to clearly appreciate that although the Corporate Manslaughter and Corporate Homicide Act 2007 is now in force and the common law offence of corporate manslaughter has been withdrawn, the individual common law offence of manslaughter still exists, so that it is now feasible for the company to be prosecuted for the statutory offence of corporate manslaughter and for an employee or director etc. to be personally prosecuted for the common law offence of manslaughter.



Involuntary Manslaughter – offence by an individual Involuntary manslaughter is a common law offence where someone kills someone due to recklessness or gross negligence but did not intend to kill or cause serious injury.

To convict an individual of the offence the prosecution must prove that the:

• Defendant was in breach of a duty of care;

• Breach caused the death; and

• Breach may be characterised as gross negligence.

Gross negligence is conduct falling far below what could be reasonably expected.

In February 2004, four rail workers were killed at Tebay, Cumbria. The four men were struck by a wagon carrying 16 tonnes of steel rail tracks, which came silently out of the darkness and ran into them as they worked on the West Coast Main Line.

The owner of MAC Machinery Services had deliberately disconnected the hydraulic brakes on two wagons because it was cheaper than repairing them. He had driven a low-loader truck with a railway crane and two wagons to Scout Green in Cumbria to lift worn-out track from the West Coast Main Line onto the railway wagons. He had disconnected the brakes on the two wagons because the hydraulic systems were in such bad condition that they would not work properly in conjunction with the crane. He had filled the hydraulic brake fluid cables connecting the crane with steel balls, giving an external impression that everything was normal.

On the morning of the incident, the crane driver began using the crane to lift lengths of steel onto the wagons. He was not qualified to operate the crane, and had placed wooden chocks under the wheels of the two wagons because he knew they might move as he unloaded the steel rails. However, as he began loading the second wagon, it began to roll down the track after crushing the chocks. Some distance down the line the maintenance workers were unable to hear its approach due to the noise from an on-site generator.

At Newcastle Crown Court in March 2006, as a result of their gross negligence, the company owner and the crane operator were each found guilty of four counts of manslaughter. The owner was jailed for nine years, having also been found guilty of three counts of breaching health and safety legislation. The crane operator was jailed for two years, in addition to being convicted of a single count of breaching health and safety legislation.

Corporate Manslaughter - Historical Perspective Applying the common law of manslaughter to organisations has been fraught with difficulty.

The now withdrawn common law offence of corporate manslaughter required that:

1. An individual had to be identified as the embodiment of the company (known as the "directing or controlling mind"); and

2. That individual had to be successfully prosecuted for the individual offence of manslaughter.

For organisations of any significant size this proved to be virtually impossible because the activities of the directors etc. are usually too divorced from the immediate causes of the fatal accident. Following the “Herald of Free Enterprise” capsize in 1987 which caused the deaths of 192 people, the Sheen Report was very critical of P & O's management of safety:



"At first sight the faults which led to this disaster were the aforesaid errors of omission on the part of the Master, the Chief Officer and the assistant boatswain… But a full investigation into the circumstances of the disaster leads inexorably to the conclusion that the underlying or cardinal faults lay higher up in the company… All concerned in management … were guilty of fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness."

Accordingly the company P & O and five senior employees were prosecuted for manslaughter. The identification principle was applied in respect of the company but it could not be established that any of the senior managers and directors were grossly negligent. In particular, it could not be proved that the risks associated with sailing with the bow doors open were obvious to the senior managers prosecuted and so no mens rea could be attributed to the company. The trial judge directed that the company and the senior managers be acquitted.

The only successful prosecutions for corporate manslaughter have been against very small businesses. The first followed the Lyme Bay disaster (1993) in which four teenagers died following a canoeing trip across Lyme Bay in Dorset. Both the company, OLL Ltd and its managing director, Mr Kite, were successfully prosecuted and convicted of manslaughter. Mr Kite was not only a director but also very much involved in the day-to-day operations of the company. At the trial, Judge Ognall J stated:

"Mr Kite and the company, OLL, of which he is managing director, stand or fall together. One for all and all for one".

Apart from the fact that OLL Ltd was a very small business, the risks associated with canoeing in the open sea with inadequate supervision and safety equipment were clearly obvious and serious by anybody's standards. In this case, the company had received several written warnings from previous instructors that such a disaster was likely unless safety matters were given serious attention.

New Legislation After many years of debate to address the difficulties posed by the identification principle, the Corporate Manslaughter and Corporate Homicide Act was passed by parliament in 2007. This Act, most of which has been in force since April 2008, introduced a new statutory offence of Corporate Manslaughter. It is known as Corporate Homicide in Scotland. It reforms the Involuntary Manslaughter law as it applies to companies. The new offence states:

“An organisation …. is guilty of an offence if the way in which any of its activities are managed or organised: (a) causes a person’s death, and

(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.”

Section 1(3) makes it clear that there must be substantial senior management involvement in the breach: “An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).”

“Senior management” in relation to the organisation, is defined within the Act as persons who play a significant role in “(a) the making of decisions about how the whole or a substantial part



of its activities are to be managed or organised, or (b) the actual managing or organising of the whole or a substantial part of those activities.”

The Act also defines “organisation”; this includes corporations, trade unions, public bodies (e.g. local authorities and NHS trusts), government departments and police forces. “Relevant duty of care” is defined within the Act and includes a range of duties owed under the law of negligence (including the duty of care owed by employers to employees, the duty owed by occupiers, etc.).

The Act defines what it means by a “gross breach”: “A breach of a duty of care by an organisation is a ‘gross’ breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances”.

It is up to the jury to be satisfied that the breach was “gross” before a guilty verdict can be reached. This clearly a subjective decision and needs careful direction by the judge before the jury is discharged to make their decision.

The elements of the offence that have to be proved beyond all reasonable doubt are therefore:

1. The defendant is a qualifying organisation;

2. The organisation causes a person's death;

3. There was a relevant duty of care owed by the organisation to the deceased;

4. There was a gross breach of that duty; and

5. A substantial element of that breach was in the way those activities were managed or organised by senior management.

Corporate liability is therefore no longer dependent on the guilt of an individual “directing mind”.

On conviction there are three punishments that the Court may impose.

1. Unlimited fines. Given that a breach of the Health and Safety at Work, etc. Act 1974 and associated legislation may lead on indictment to an unlimited fine; there is little advantage to be gained for such a prosecution. The one significant difference is the greater stigma that would be attached to a company following conviction for corporate manslaughter rather than breaching health and safety law.

2. Remedial Order. This requires the organisation to put right the failings that led to the accident.

3. Publicity Order. This requires the organisation to publicise in a specified manner details of the conviction including any fine or remedial order.

While the legislation excludes secondary liability for the new Corporate Manslaughter offence for individuals (i.e. “aiding and abetting” corporate manslaughter), it does not preclude individual liability for other offences (such as the existing common law offence of gross negligence manslaughter as applied to an individual, as well as health and safety law offences).

Summary Individuals who cause death through gross negligence may still be prosecuted for involuntary manslaughter. The common law offence of corporate manslaughter has now been abolished and replaced by the statutory offence The Corporate Manslaughter and Corporate Homicide Act 2007. This requires that the organisation caused a persons death as a result



of a gross breach of a duty of care. A substantial element of the breach is the way in which the activities were managed or organised by senior management.



Revision Questions

?

18. List the powers of an inspector as defined by Section 20 of HSWA.

19. Following an accident at work, how might the inspector's investigation aid civil proceedings?

20. Under what circumstances may an inspector divulge information obtained?

21. Which health and safety offences can only be heard summarily?

22. For what breaches of HSWA may the courts impose a custodial sentence following conviction on indictment?

23. Under what circumstances can an inspector issue a Prohibition Notice?

24. Name four grounds for appeal against an Enforcement Notice.

25. What is the purpose of Section 37 of HSWA?




SUMMARY Sources and Types of Law There are two primary sources of law: statute law (written law produced through the parliamentary process) and common law (originates from judicial decisions based on custom and practice - judge-made law).

Criminal Law A crime is an offence against the state and the aim of prosecution is to impose punishment, perhaps a fine or a prison sentence.

Civil Law A civil action is between individuals, with one party initiating proceedings against another. The aim is for the claimant (formerly the "plaintiff") to seek restitution for a wrongdoing from the defendant.

The remedy sought may be financial compensation (damages), or an injunction (court order) to prevent the defendant perpetrating the wrongdoing (an injunction to prevent nuisance arising from noise, for example).

Difference Between Criminal and Civil Cases The burden of proving a criminal charge is on the prosecution and it must be proved beyond reasonable doubt that a person committed an offence. This means the judge, jury or magistrates must be sure that the case is proven.

A civil case must be proved on the balance of probabilities, which is a lower degree of proof than the criminal requirement of "beyond reasonable doubt". This means that in the opinion of the judge the evidence favours either the defendant or the claimant.

Law of Contract A contract is an agreement between two or more people. A valid contract that the law will recognise and enforce must have the following essential features:

• Agreement – between the parties, or a meeting of minds (consensus ad idem).

• Consideration – something of value must be given in exchange for a promise.

• Legal relations – there must be an intention to create legal relations.

• Legal capacity – the parties must have legal capacity to contract, e.g. persons must be over 18 years of age.

• No illegal circumstances – there must be no circumstances surrounding the contract which make it unenforceable, void or illegal.

• Form of contract – most contracts are equally valid whether they are verbal or written (although it is more difficult to prove the details of a verbal contract).

• Simple contracts – the limitation period for simple contracts is six years.

Employment Law in Relation to Health and Safety Employment is founded on a contract between employer and employee - the 'contract of employment'.



Discrimination

The main statutes are:

• Sex Discrimination Acts 1975 and 1986 – discrimination against women, men, married persons is unlawful.

• Race Relations Act 1976 - makes it illegal to discriminate against anyone on grounds of race, including: colour, race, nationality, national or ethnic origins.


• Employment Rights Act 1996.

• Social Security Act 1996.

• Equality Act 2006.

Absolute and Qualified Duties The three distinct levels of duty are absolute, practicable and reasonably practicable. These levels constitute a hierarchy as follows:

• Absolute requirements, where the duty is qualified by "shall" or "must" without any other word or phrase to lower the standard.

• Practicable requirements imply that if, in the light of current knowledge and invention, it is feasible to comply with these requirements, irrespective of cost or sacrifice, then such requirements must be complied with.

"Practicable" means more than physically possible and implies a higher duty of care than a duty qualified by "so far as is reasonably practicable". With a practicable requirement, if something is technically possible then it should be done.

• "Reasonably practicable" is a narrower term than physically possible and implies that a computation must be made in which the quantum of risk is placed on one side of the scale and the sacrifice involved in carrying out the measures necessary for averting the risk is placed on the other side. If it can be shown that there is gross disproportion between the above factors, i.e. the risk is insignificant in relation to the sacrifice, then a defendant discharges the onus on themselves.

Role of the European Union Influence and Role of the European Union Regarding UK Health and Safety Legislation The role of the European Union (EU) is to break down economic and commercial barriers between member states.

The main institutions of the EU are: The Council of the European Union, The European Commission, The European Parliament, The European Court of Justice.

European Court of Justice – Jurisdiction

• Referral for Preliminary Ruling

On points of European Community law in regard to: the interpretation of the EC Treaty; the validity and interpretation of acts of the institutions of the EU and of the European



Central Bank; the interpretation of the statutes of bodies established by an act of the Council of the European Union where those statutes so provide.

There are non-mandatory referrals and mandatory referrals.

• Hearing Direct Actions

For failure of member states to fulfill obligations under EU law, for annulment of a measure, for failure to act by an EU institution, for awarding compensation for unlawful acts committed by Community Institutions.

• Hearing Appeals

The ECJ acts as a court of appeal on points of law from the Court of First Instance.

Instruments in EU Law Treaties are also known as primary European Community legislation. Treaties are directly applicable to member states.

Regulations apply directly to member states. There is no requirement to assimilate into national laws. European Regulations prevail over national law.

Directives are binding on member states with respect to the objectives to be achieved, but the method for achieving this is left open. Framework Directives lay down general objectives and Daughter Directives specify how these results can be obtained. Directives are implemented by regulations made in the member states.

Decisions are binding in their entirety upon those that they address, e.g. member states, legal persons or individuals. Decisions are made by the European Court of Justice on points of law. An individual or a member state can take a case to the European Court of Justice in order to seek interpretation of a directive or to complain of the failure of a member state to implement a directive.

Co-Decision Procedure

Co-decision was a new form of legislative procedure introduced by the Maastricht Treaty in 1993. This was an arrangement designed to achieve consensus between the Council of the European Union and Parliament. Measures adopted under the procedure are signed by the Presidents of both institutions, recognising their joint responsibilities.

Qualified Majority Voting This method of voting was introduced in order to expedite the passing of legislation by dispensing with the need for unanimity of agreement. Under QMV, each member state has a proportion of the available votes allocated according to relative size.

UK Legislative Framework Parliament consists of the Sovereign, the House of Lords, and the House of Commons. Although it is usually depicted in this order, the House of Commons is the most powerful member of the trio.

Structure of the Courts • Criminal cases are heard initially in the Magistrates' Court and may be referred to the

Crown Court (in England and Wales).




• Civil matters, e.g. civil claims in respect of personal injury, are dealt with in the County Courts or in the High Court according to the magnitude of the claim.

The three divisions of the High Court are Queen's Bench (contracts and torts), Chancery (land, wills, partnerships, companies, etc.) and Family. The Queen's Bench division has supervisory functions over the lower courts and tribunals.

Enforcement of Health and Safety Law Activities can be enforced by:

• The HSE.

• Local authorities.

HSWA gives the following guidelines:

• Section 19: appointments of inspectors shall be made in writing.

• Section 20: lists the general powers of an inspector.

• Sections 14, 20, 27 and 28: detail the obligations of enforcing officers.

Offences Can be classified as:

• Summary.

• Indictable.

• Hybrid or either way.

Maximum penalties differ according to the type of offence.

Options for Enforcement Options include:

• Improvement and prohibition notices. These may give a choice as to remedies, and may be deferred and appealed against.

• Prosecution in the Magistrates' Court.

Implications of Sections 36, 37 and 40 of HSWA and MHSW Regulation 21 These consider the following:

• Offences due to the fault of other persons.

• Offences by a body corporate.

• Onus of proof.

• Responsibility of the employer.

Corporate Manslaughter • Due to the difficulties of successfully prosecuting a company for the existing common law

offence of corporate manslaughter, it has been replaced with a new statutory offence.

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