Nebosh

1 - HEALTH - ABSENCE OF ILL HEALTH OR DISEASE

2 - SAFETY - THE ABSENCE OF RISK OF SERIOUS INJURY

3- WELFARE - ACCESS TO BASIC FACILITIES FOR THE WORKER I.E TOILETS

1 MORAL - the moral duty one person has to another

2 ECONOMIC - injuries at work cost money ( direct and indirect costs )

3 LEGAL

1 CRIMINAL - Punishment of companies or individuals who have broken statute h+s law

2 CIVIL - Concerned with compensation for people who have been made I'll or injured in work through no fault of their own.

1 DIRECT - First aid treatment, Employee sick pay , Repair to/replacement of damaged equipment , Lost/Damaged product, Lost production line , Overtime payment covering injured person , Fines in criminal court , Compensation , Cost of rehabilitation

2 INDIRECT COST - Loss of staff to investigate the incident , Loss of staff moral , Cost of remedial action following review of incident e.g change of process or material introduction of new process , Cost of recruiting temp staff/labour , Loss of good will of customers , Damage to public image , Damage to industrial image.

1 Loss of raw material

2 Sick pay for injured workers

3 Overtime pay to make up for lost production

4 Repair to damaged equipment

1 STATUTE LAW - Made by parliament in the form of acts and regulations

2 COMMON LAW - Made by judges in court through precedents that they set through their decision making

Is enforced by authorities such as hse

1 IMPROVEMENT NOTICE

2 PROHIBITION NOTICE

1 Used where health and safety inspector believes h+s law is being breached or a breach is likely to be repeated

2 ONLY ISSUED IF no risk of personal injury

3 Will will state that improvement must be made to achieve minimum legal standards and will impose a timescale the inspector thinks is appropriate

4 Timescale cannot be less than 21 days

5 The inspector may state specific action needed to achieve legal compliance and make reference to any ACOP and Guidance.

6 The notice is served on the person in charge of the workplace or activity that is breached, this is normally the employer.

7 Any appeal against the notice must be made with 21 days.

1 Issued where an inspector thinks there is a risk of personal injury

2 The activity must be stopped until it has been remedied

3 No timescale specified

4 Inspector does not need to see a breach of h+s law

5 Served on the person in control of the activity , usually the employer

6 Appeals must be made within 21 days

Employment tribunals hear appeals against Enforcement Notices.

Appeals made to an EMPLOYMENT TRIBUNAL in writing

Grounds for appeal.

1 There has been a wrong legal interpretation by the inspector

2 The inspector has exceeded his powers

3 a breach had been admitted and the suggested remedy or timescale is not practice or reasonabley practice

4 a breach in the law is admitted but it is insignificant

For and improvement Notice the appeal suspends the notice until the appeal is heard or withdrawn

For a prohibition notice the notice remains in place until the tribunal direct otherwise

1 well designed and comfortable workplaces , organised systems of work and high levels of training

2 widespread access to knowledge makes legal practice and information easy to access.

3 media coverage makes sure when poor health and safety practices are revealed it is broadcast quickly by many different methods.

1 DIRECT Costs

2 INDIRECT costs

1 first aid treatment

2 employee sick pay

3 repairs to/replacement of damaged equipment

4 lost/Damaged product

5 lost production time

6 fines in criminal court

7 compensation

8 cost of rehabilitation

9 overtime payment covering injured person

1 Loss of staff to investigate incidents , write reports

2 loss of staff morale

3 cost of remedial action following review e.g change of processes or materials

4 costs of recruiting temporary staff/labour

5 loss of good will of staff

6 damage to public image

7 damage to industrial relations

1 Loss of raw materials

2 Sick pay for injured workers

3 Overtime to make u for lost production

4 Repair to damaged equipment

1 a duty of care was owed by the defendant to the claimant

2 that duty must have been breached

3 a loss must have occurred as a result

The employer can be held responsible for the negligent act of his employee

1 action is brought by the state

2 the intention is punishment

3 usually no time limit for proceedings

4 insurance not available to pay fine

5 statute law used as the source of law

6 the burden of proof is usually with on the prosecution to prove ' guilt beyond reasonable doubt '

1 Action is brought by the individual

2 the intention is compensation

3 legal proceedings have to start within 3 years of the injury

4 insurance is available to pay compensation

5 common law is the source of law

6 burden of proof is on the claimant to prove their case ' on balance of probabilities '

Made by parliament in the form of Acts , Regs , Orders. They have full legal status.

Acts e.g HSWA

Regs e.g ACTS enable the creation of h+s Regs such as Management of H+S at work Regs 1999 (MHSWR) these are referred to as secondary legislation.

Often accompany Regs. ACOP explain how to achieve the legal standard that they accompany (e.g hswa ) and what is expected.

They do not have full leg status like Regs or acts. Instead have semi/special legal status.

Failure to comply is not in itself a breach of law, but can be used as evidence of failure to achieve legal standards.

Organisation not complying with ACOP would need to demonstrate they have achieved or exceeded legal requirement in another way.

Often accompany Regs and is purely advisory

No legal status

Useful to interpret legal standards

Often sets out best practice

Made up of decided cases.

A judge makes a decision in court and states the reason for the decision. This decision may influence judges in the future.

1 provide a safe place to work with safe access and egress to it.

2 provide safe plant and equipment

3 provide safe and competent workers

4 provide appropriate supervision , information , instruction and training.

Judicial precedent requires an inferior (lower) court must always follow the decisions of a higher court. Once a judgment has been made in a particular case , the decision will apply in any future cases which match the circumstances of the first.

Criminal court civil court

Supreme Court

Court Of Appeal

(Criminal div) (civil div)

Crown Court High Court

Magistrates Court County Court

Statutory instruments that require member states to achieve a certain legal standard through their own internal legislation within a timescale.

Statutory instruments thet impose legal standards onto member states and take precedents over law.

HSE and Local Authorities are enforcing authorities.

1 Enforce HSWA and associated law.

2 review existing legislation and make recommendations for change.

3 provides information and guidance

4 conducts research

Does not Enforce fire legislation. Fire and Rescue are main enforcer for fire precautions under Regularity Reform ( fire safety ) order 2005. They can order alterations notice, prohibition notice , and Enforcement notice and prosecution.

Under section 20 HSWA inspectors have the following power.

1 to enter premises at any reasonable time.

2 to take along a police officer if they belive they will be abstracted

3 to rake technical assistance or equipment if necessary

4 to direct that the premises or items within the premises ( whole or part) are left undisturbed.

5 to take photos drawings or measurements

6 to take samples of articles or substances and of the atmosphere

7 to dismantle and/or test any item or substance that they think is dangerous

8 to take possession of articles or substances for examination or test, or as evidence in proceedings

9 to take statements of any person they think will help with investigations

10 to inspect and copy any document or record considered relevant

11 to recieve access to reasonable facilities and assistance in conducting their investigation

12 any other power necessary to fulfil the duty of their enforcement authority

Section 25 of HSWA adds additional power

1 to seize and render harmless ( by destruction if necessary) any article or substance that gives rise to imminent danger or serious personal injury.

1 cancel the notice

2 affirm the notice

3 affirm and modify the notice

Can result in a fine and/or prison sentence

Max penalties are

Magistrates Court- unlimited fine and/or 6 months in prison

Crown Court- unlimited fine and/or 2 years in prison

When there has been a contravention of h+s law which requires them to issue either

1 a notification of contravention

2 and improvement or prohibition notice

3 a prosecution

1 the law that the inspectors opinion relates to

2 the reason for the opinion

3 notification the fee is payable to HSE

The health and safety (fees) Regs 2012 allows the HSE to recover it's costs for carrying out its regulatory functions for those found to be in material breach of the h+s law

Summary offences - minor offences decided in a Magistrates Court

Indictable offences - more serious offences. A formal document is drawn up following proceedings held in Magistrates Court. Trial is held before a judge and jury

Triable either way - these are offences which may be tried as summary offences in the Magistrates Court or heard by a judge and jury in crown court. Most h+s cases fall into this category

1 prosecution may send a case to crown court due to its seriousness

2 the Magistrates may send the case up to crown court for trail and sentencing

3 the accused could request that the case goes to crown court so that they be heard by judge and jury

Individuals can be charged with gross negligence manslaughter. Where their conduct fell well below the standards of a reasonable man and resulted in someone's death.

Organisation can be charged with corporate Manslaughter.

Corporate Manslaughter and corporate homicide act 2007

Guilty if the way the organisation managed or organised it's activities-

1 caused a persons death

2 amounts to a gross breach of their duty of care.

3 and if the way the organisation managed and organised by its senior management is a substantial element in the gross breach

Three proofs for the defence

1 no duty of care was owed

2 duty of care not breached

3 No injury or loss resulted as a direct result of the breach a

Part of the blame for the injury is attributed to someone else.

An employer can be held responsible for the negligent acts of his employee

General damages - for pain and suffering , Loss of earnings ect

Special damages - for loss of earnings up to the trial date , travel expenses to hospital ect

Settle disputes that arise out of employment law such as cases of .

1 unfair and constructive dismissal

2 sex , age, race discrimination.

Health and safety legislation cannot be used to give a right of civil action in almost all circumstances .

Injured employees and other people cannot sue employers or others that they hold responsible for their injuries using breaches of health and safety legislation for their claim.

This is because section 47 of HSWA prevents the acts or regulations made under the act from being used for this purpose. They are statute bared.