The core legislation is the Health and Safety at Work etc. Act 1974, as is well known. Any investigations, court action, or other action falling short of prosecution will most likely fall under this Act and a range of safety regulations.
There are some important core offences:
Section 2 requires every employer to ensure the health, safety, and welfare of all employees at work as far as ‘reasonably practicable’.
The term ‘reasonably practicable’ is an important one.
A non-exclusive list of duties under Section 2 includes:
• The provision and maintenance of plant and systems of work that is safe and without risks to health.
• Safe and risk-free arrangements for using, handling, storing, and transporting articles and substances.
• Information, instruction, training and supervision to ensure health and safety at work.
Provide safe workplaces without health risks and safe access to and egress from such locations.
• Facilities and arrangements for employee welfare at work.
Section 3 makes it a duty for every employer to ensure the safety of those not in their employment, i.e. third parties – and that they are not to be exposed to risks to their health and safety – again, so far as is ‘reasonably practicable’.
Failure to comply is an unlimited fine for organisations and individuals but up to a maximum of two years imprisonment for individuals.
Under Section 7, every employee has a duty to take reasonable care of their own health and safety and that of others who may be affected by their acts or omissions.
Employees must also cooperate with the employer to enable it to comply with its legal requirements. Various other provisions here, and in specific regulations, must be complied with by employers and employees.
Because some events, such as an accident or near-miss, occur, this in itself does not mean that an event has occurred that will lead to action. Has everything ‘reasonably practicable’ been done to address safety issues? It is a failing if it cannot be shown that it was not ‘reasonably practicable’ to do more than actually what was done.
So, what is meant by ‘reasonably practicable’? Here an assessment of the likelihood of harm and the extent of that harm has to take place in an assessment process. This counterbalancing exercise might conclude that the investment required to address the risk is disproportionately large compared to the insignificance of that risk. Hence, it is arguably not ‘reasonably practicable’.
Notably, the onus is on the business or individual prosecuted to prove that ‘it was not practicable or reasonably practicable to do more than in fact was done or that there was no better practicable means than in fact was used to satisfy the duty….’ (Section 40 HSWA). In criminal law cases, a defendant who has to prove something, has to do this on the balance of probabilities (not beyond reasonable doubt) – i.e. more likely than not.
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