How the new law will affect
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large companies by John Darker, AMBIM
ALTHOUGH the Health and Safety at Work etc Act applies to companies of all sizes, in some ways it will appear more onerous to larger companies, especially those with a wide spread of activities. The legal responsibility for observing the law unquestionably rests with management in all companies, but whereas in the small firm, the managing director is likely to be in the firing line if safety of employees, or the general public affected by work activities is prejudiced, in large companies, with supervisory, middle and top management levels, the interesting question is : "Where does the buck stop ?"
James Jackson, in his book, Health and Safety—the New Law, discusses the question of responsibility at some length. He suggests there is the likelihood that a company, a nationalised board or local authority, could itself face a prosecution under the Act but in addition individuals whose actions or omissions have led to the commission of the offence may also be prosecuted.
Proceedings for an offence under any of the revelant statutory provisions can only be instituted, in England and Wales, by an inspector—responsible to the Commission on Safety and Health—or by and with the consent of the Director of Public Prosecutions. An inspector, if duly authorised, may prosecute before a magistrates' court in England and Wales, but not in Scotland.
In practice, if the law has been breached, an inspector would be likely to check the written statement of safety policy, examine other relevant documents, and question employees to discover what individual may be proceeded against.
Jackson points out that Section 79 of the Act, which may require companies to include specified information about safety policy to appear in annual Directors' Reports, will mean that senior management will be aware of the general outlines of safety policy; hence the difficulty of any senior manager pleading .gnorance of the circumstances leading to a violation of the law.
Further, in Jackson's view, "Where a person is of such seniority that his decisions can be said to constitute part of the directing mind of the company then the company must be proceeded against as well as the individual." But if a member of supervisory or middle management has failed to carry out instructions, such person may be prosecuted without the company concerned becoming involved in legal proceedings.
Law of averages
By the law of averages, a very large company could easily find itself involved in a number of offences under the Act, over a period of years. This would be highly damaging in terms of public relations. In one important case, fought out to House of Lords level (Tesco v Nattnass) it was held that the manager of a supermarket could not be regarded as sufficiently senior ,o automatically involve the company with the criminal consequence of his own breach of the law.
It would seem that the disregard of an instruction pertaining to safety by a foreman could lead to his being prosecuted, but if safety rules have been ignored by supervision over a lengthy period, then the company would be lucky to escape prosecution instead of or in addition to the employee. This, for the reason that it is pant of top management's job to see that junior management complies with safety rules.
I was fortunate to be able to attend a press briefing given recently by Perkins Engines Ltd, Peterborough. This company, well known in road haulage, has taken safety seriously for some years and it has won an international reputation in the process. Its comprehensive safety training programme has considerably reduced its accident rates, raised its training standards, identified accident costs and contained insurance premiums.
Perkins Engines have produced a detailed study of the new Health and Safety legislation, comparing this with the law as it was and setting out the effects, as they see them, in terms of company policy and attitudes. Interestingly, the very first item •in the Perkins study says that all persons at work are now covered by one Act and one authority, and stresses that a person is at work throughout the time when he is in the course of his employment, not merely while on the premises. "The company's responsibility to employees will extend beyond the premises, eg, lorry driver is at work even if in Birmingham, Northampton, Coventry, etc."
Because the public, as well as persons at work, are now protected under the Act, Perkins expect factory inspectors to have regard to this, and the company confirms that it will be responsible "for protecting others against risks arising from work activities, eg, load falls off lorry. Company as well as driver will be responsible under H.S.W. Act and liable for prosecution."
The general duty of employers to ensure so far as is reasonably practicable the health, safety and welfare at work of all employees is felt by Perkins to be very sweeping, subjective and likely to be productive of much argument, but the company accepts that present standards should be vetted because of the Act's emphasis on health and general welfare of employees.
Re-examination
By the same token, and remembering that the employer's requirement to provide plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health, and that this is not restricted to within the "close and curtilage " of the factory, all plant and systems of work are to be re-examined.
Perkins point out that the old law imposed no general responsibility on employers to ensure safety and absence of risks to health in connection with the use, handling and storage and transport of articles and substances save in respect of the transport of dangerous chemicals by road and in the use and storage of highly flammable
There will now have to be much more stress by employers in providing information, instruction, training and supervision to ensure the safety and welfare of staff, and companies must accept the duty of giving all necessary information regarding safety and health risks to any person at risk. "Systems for the collection, collation and dissemination of this information Will have to be reviewed or initiated," says the Perkins Study. "This may mean a review of every job in the company."
Written policy
The sweeping nature of much of the new law is referred to in a section dealing with the working environment. Previously, specific risks and welfare matters were covered by specific legislation and regulations but there was no such general duty, and this is likely to create problems in fringe areas not previously covered by legislation.
The preparation of a written safety policy and its regular updating is also expected to require a redefinition of duties and responsibilities touching safety matters from the boardroom to the shop floor. Means for monitoring safety performance will have to be provided, and publicity arranged. Perkins, with a long-standing system of safety representatives, do not expect the existing arrangements to be in line with expected regulations because their safety representatives are not appointed by the trade unions.
The general duty of employers to operate in such a way as to avoid risks to employees' health or safety is not seen as a problem for the majority of Perkins operations but the company stresses that vehicle operation could be vulnerable. Also, " special care and consideration must be given to visitors to our premises and to contractors. Arrangements for controlling and protecting these persons should be reviewed." under the Act — of regulations requiring a company to give information about risks to health or safety to relevant persons (other than employees) is not expected to affect Perkins, but the company comments : "If it did it could cause us considerable embarrassment and adverse publicity. Any activity likely to cause risks to health or safety of other persons should be examined and where possible altered to eliminate the risk."
The control and supervision 0 premises being used 'by persons who are not company employees is defined more closely in the new law. This will particularly concern visiting contractors and third parties. Perkins already include "Safety Rules for Contractors " in orders and contracts but the company expects to have to revise these rules. "More effective supervision, control of, and liaison with, contractors working on our premise's will be necessary."
Responsibility
If a building contractor was given control of premises he was erecting—say an extension to a warehouse or depot—then it appears that responsibility for safety could be largely or wholly transferred to the contractor. Clearly, cases of divided control and responsibility may present problems.
The designer, manufacturer, importer or supplier of any article for use at work must now ensure, so far as is reasonably practicable, that it is designed and constructed as to be safe and without risk to health when properly used. They must also do any necessary testing and examination, and provide adequate information about the use for which the article is designed and tested and about conditions necessary to ensure its safe use. Those who erect or install such articles are under similar duties and the above requirements also cover any substances for use at work.
This greatly extends protection to users but it behoves purchasers of equipment to insist that full instructional material is provided and companies must, for their part, ensure that relevant information gets down to eventual users. The practical problem in a workshop situation, where staff turnover may be a normal occurrence, of ensuring that instructional leaflets, manuals, etc are made available to users, needs no emphasis. This does not mean, I suspect, that manuals may be locked up in the foreman's drawer.
Perkins are conscious that if, as a company, it supplies "an article for use at work" these general duties devolve upon the company and it proposes to vet any relevant handbooks and instruction manuals. Equally, any company erecting or installing equipment of any kind must ensure it is safe before commissioning. This would apply to such things as lifting tackle, pallet racking, etc.
Not all the sanctions in the Act relate to employers. Perkins point out that a heavier duty is placed an employees—though they add : "We are all employees !" It will now be easier for enforcing authorities to prosecute employees who create hazards or work unsafely. Employees have a duty to abide by safety rules and to fallow safe working methods, use protective clothing and equipment, etc.
Codes of practice, as they are introduced, will provide authoritative guidelines and, hopefully, these Codes should ensure uniformity of interpretation and enforcement by the Health and Safety Executive. (I may add, before any Codes have been published relative to road transport, that varying interpretations are sometimes put by different inspectors, whether or not it is necessary to fill a disused fuel storage tank—unused for 40 years—with concrete I) Other matters touched on in Perkins' valuable study stress the power of inspectors to issue prohlition notices to stop dangerous activities and to seize and, if necessary, destroy any substance or article considered a source of imminent danger of serious personal injury.
The powers of the enforcing authority could even include trade secrets, though such information could only be used for the purposes of the Commission or Executive.
Mental health
"Personal injury "—previously people were protected for bodily injury and injury to health — is now seen to include any disease and any impairment of a person's physical or mental condition. Perkins feel that this wider definition would be unlikely to have much effect in general situations "but an inspector coUld issue a prohibition notice if he considered that employees' mental health was being affected."
A final point, touching on the responsibility of employers, following a ruling by an inspector, to keep employees adequately informed on safety and health risks, and any action proposed to be taken in this regard, is that workers will now know of risks to health and safety, or breaches of statutory requirements, as soon as the employer. "They will need to be confident that the necessary corrective action is being taken as soon as possible."
If a firm such as Perkins Engines, in every sense enthusiasts for industrial safety, see the Health and Safety Act requiring them to vet existing procedures so thoroughly, is it not likely that the general run of companies should take the new Health and Safety law seriously ?