The government established a committee under Lord Robens to examine health and safety legislation and make recommendations. The Robens Report was published in 1972, proposing major changes in occupational health and safety, which led to the Health and Safety at Work Act 1974 and equivalent legislation in Northern Ireland. The Act sets out duties for employer and employee in all types of work. It refers to general principles only and intentionally gave no details; it is left to employers to work out how they are going to comply with the law in their particular work environment and organisation.
The Act allows for the issue of Regulations and also Codes of Prac- tice and Guidance Notes – practical and helpful publications – which support the regulations by describing in more detail what is necessary to meet the legal requirements. There are many regulations under the Health and Safety at Work Act, which is known as the enabling Act. If, for example, there is a breach of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations, court action may be taken under the Health and Safety at Work Act.
Under the Act, the employer must ensure, ‘so far as is reasonably practicable’, the health, safety and welfare of employees at work. The phrase ‘so far as is reasonably practicable’ is a cost/benefit equation measuring the risk against the sacrifice involved. Not being able to afford something necessary, however, is not an acceptable excuse. In 2007 the European Court of Justice ‘upheld one of the key elements of British health and safety law – the use of the key phrase “so far as is reasonably practicable”’ (HSE 2007a).
The employer is required to provide a safe place of work. This covers equipment and methods of work. The employer must provide
information, instruction, training and supervision. A written statement of the health and safety policy is required for organisations employing five or more people, and this must be made known to all employees.
The employer is also responsible for ensuring that members of the pub- lic and other persons on sites under their control are not affected by their work activity.
As previously stated, it is not all down to the employer – employ- ees also have responsibilities under the Act, to themselves, to their col- leagues and to members of the public. Employees are bound to take reasonable care for their own health and safety and that of others who may be affected by what they do or fail to do. They must not interfere with or misuse anything provided for their health, safety and welfare.
Employees must also work and use work items in accordance with the health and safety training and instructions given by the employer. If, for example, employees have been provided with respiratory protec- tive equipment and have received relevant training and management support and then ignore this, they may have to accept some responsi- bility for any health problems that result.
There is a contractual agreement between the two parties, namely the employer and the employee. They are thus not free agents when they are at work, but have contractual obligations. Employees are expected, for example, to turn up for work on time, and equally to comply with any health and safety policies and training. If, however, the employer has not provided any health and safety induction or training and guidance to employees, then they are at fault for not fulfilling their part of the contract and are in breach of the law.
Improvement and Prohibition Notices
The Health and Safety at Work Act 1974 gave Health and Safety Execu- tive inspectors the power to issue Improvement and Prohibition Notices and thus enforce the Act. Following the introduction of Health and Safety (Enforcing Authority) Regulations (HSE 1998a), local authority inspectors also have enforcement powers in certain areas, for exam- ple, environmental health officers can inspect restaurants and school kitchens.
Health and Safety Executive and local authority inspectors have broadly the same duties. They visit sites under their jurisdiction, with or without notice, for general inspections or following incidents; they can take photographs and remove specimens such as equipment and docu- ments, and are entitled to speak to anyone in the workplace. Inspectors often have themes for a particular year, for example focusing on prob- lem areas such as respiratory sensitisers or targeting particular sectors such as the construction industry. These themes will often be in line with national awareness campaigns, strategies and programmes (HSC 2000a, 2004; HM Government 2005).
Generally, inspectors should encourage and help employers to meet the legislation by taking a partnership and collaborative rather than a threatening or aggressive approach. This requires good communication between both parties and a genuine desire on the part of the employer to share the aim of preventing ill health and accidents in the workplace.
If the inspector finds a problem on visiting a workplace, he or she can issue oral and written warnings and, when necessary, issue two types of notice: the Improvement Notice and the Prohibition Notice.
The Improvement Notice is issued when, in the inspector’s opinion, it can be shown that there is a breach of health and safety legislation.
The notice gives a description of the breach, the relevant piece of legis- lation and the date by which the action should be completed, and may include a schedule which gives clear guidance on what remedial action is required to be taken. Generally, inspectors are willing to engage in dialogue to agree the date of compliance with the company, provided the proposed date is not too far away. The level of intervention taken by the inspector, whether giving the employer verbal advice, written advice or more formal enforcement action including prosecution, will depend on the extent of the breach and the risks to health and safety involved. An employer has 21 days to appeal against the notice if they think it is not appropriate, using the employment tribunal system.
The Prohibition Notice is issued when the inspector considers there is a risk of serious personal injury. This requires an immediate cessation of the work activity concerned.
Breaches of the law are dealt with by the courts under criminal law.
Employers who obstruct inspectors in their work will pay the penalty.
If an individual or company ignores or refuses to comply with a notice, prosecution can result. Breaches of regulations or cases of obstructing inspectors are tried summarily (in a magistrates’ court in England and Wales) and the maximum penalty is a fine of £ 5000.
Other offences under the Health and Safety at Work Act 1974 are prosecuted either in the lower courts, where there is a maximum fine of
£ 20 000 or six months’ imprisonment or both, or by jury in the crown court, where an unlimited fine and/or a prison sentence of two years can be given.
The Employment Medical Advisory Service (EMAS)
The Employment Medical Advisory Service Act 1972 details the roles and responsibilities of EMAS within the HSE; these are to provide occu- pational health advice and information, investigate occupational health issues in the workplace, and safeguard and improve the health of those at work. The currently-named medical inspectors and occupational health inspectors (OH doctors and nurses), who were established as a result of this Act, work as specialists within sections of the HSE and now have the same enforcement powers as inspectors in the HSE. One of their
activities given under the Act – provision of information – is now un- dertaken by several entities, such as ‘Workplace Health Connect’ and
‘HSE infoline’. Infoline does refer more complicated queries for advice to a local occupational health inspector when required. It can be helpful for occupational health nurses to establish communication links with their nearest OH inspector, as they are a useful professional resource.