IRLR 476, where the employee, Keys, was required to take money to the bank. She was worried about being mugged as there had been a number of muggings in the area. She refused to go to the bank and was consequently sacked. It was held that the employer had failed in its obligation of trust and support; the employee’s concerns had not been taken seriously, nor had alternative methods of getting the money to the bank been explored. In these circumstances there had been a breach of contract.
Employer Health & Safety Obligations
The law governing standards of safety in UK workplaces was intended to be “goal setting” and “enabling” and it was constructed with a built in flexibility for it to be amended, augmented and improved as necessary. As a consequence, the legislation now comprises a matrix of interrelated Acts, Regulations and Directives that mesh together to form a legal framework that ensures employers achieve and maintain suitable standards of workplace safety.
But, the basis of the Health and Safety Legislation is the Health and Safety at Work Act 1974.
Statutory Duty to Minimise Risk of Harm To Health
The Health & Safety at Work Act 1974 (HSW Act) created a duty to provide a safe way of working for employees.
S2. HSW Act requires employers to ‘ensure, as far as is reasonably practicable’, the health, safety and welfare at work of all employees.
Employers duty obligations include ‘actively’ seeking out measures which may reduce known risks, staying up to date with and investigating new technologies and systems and keeping up with the standards being set by other employers. (Contacting similar local businesses, trade associations and community and civic groups is one good way to do this.)
Employers duty obligations also include a responsibility to prevent unnecessary risk taking. In other words, if a particular risk is not necessary to take then it cannot be permitted to be taken.
Where a ‘known’ risk of serious harm to health exists employers have what is known as an ‘absolute’ legal duty to protect against the harm happening – including stopping performing the work if the risks can’t be reduced to satisfactory levels.
Probably the best known example of absolute duty – also known as strict liability – is the former Section 12 of the Factories Act 1961. This required “the fencing of every moving part of every prime mover”. The obligation was held by the courts to be “absolute” even in circumstances where, as a result, the machines became uneconomical or unusable.
So, if an employer cannot (or won’t) prevent serious injury outcomes and more are imminent then the workplace or the dangerous process must be shut down.
Note: The Home Secretary has the authority to permit continued operation of the workplace if it is considered essential in the public interest. (E.g. Hospitals, Prisons, Police, Armed Forces, Public Transport, etc). In doing so, the Government would be accepting liability for claims. So, for most enterprises, permission is unlikely to be granted!
Duty to protect everybody, not just employees
Employers are also required to conduct their undertaking under S2. in such a way as to ensure, “so far as reasonably practicable” the safety of other people who are not their employees, and to whom the premises have been made available. (S.8 HSW 1974.)
Must have a written Health and Safety Policy
Employers are also expected to prepare, and as often as may be appropriate, to revise, a written statement of policy with respect to the health and safety at work of employees. This must prescribe the organisation’s arrangements for carrying out and achieving the objectives of the policy. Employers must also bring the statement and any revision of it to the notice of all employees – S.2(3) Health and Safety at Work Act 1974
Must inform HSE of serious incidents that happen
The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) came into force on 1 April 1996.
The Regulations require employers to inform the enforcing authorities (HSE / Local Authority) of accidents to employees which resulted in an ‘over-seven-day injury’. This is one which may not in itself be major, but results in the injured person being away from work or incapacitated and unable to do their normal work for more than seven days.
Note: In the case of an over-7-day injury the incapacity must arise from the physical injury and not be the result of a psychological reaction to the act of violence alone.
The enforcing authorities must also be promptly notified of any other incidents which culminated in serious injury – major fractures and wounds and also of any other injury which involved unconsciousness, or requiring admittance to hospital for more than 24 hours.
The effect of RIDDOR is to raise an official inquiry following serious incidents, to establish whether they could have been prevented. It is inherently an exercise in the determination of accountability. If, for example, inadequate steps have been taken to minimise the danger of violence occurring and the deficiency is viewed as contributing significantly to the severity of any particular outcome, then the organisation will be vulnerable to damaging criticism and compensation claims.
Note: There is currently no requirement to report incidents in which injury is sustained by people who are not employees of the organisation. Another problem for Risk Managers is that mental harm can build as a consequence of a series of incidents and may not be attributable to any one particular situation, and psychological harm may not immediately be apparent at the time of the incident and may surface to become an ‘over seven day injury’ some time after.
More info on how to report accidents can be found on the HSE’s Incident Contact Centre web site.
Must consult with employees
S.2 Health and Safety (Consultation with Employees) Regulations 1996 requires employers to (in good time) inform and consult with employees on matters relating to their health and safety.
Must inform employees about hazards to health
The 1996 Regulations also made it a statutory obligation that employers inform employees of all the risks to their health from hazards known to affect the workplace including, death, physical injury, psychological trauma and mental stress from violence!
Posting up the previous year’s total number of job-related injuries and illnesses on the Official Noticeboard would, in most people’s eyes, be a reasonable step to take towards fulfilling this duty obligation – It’s not common practice in the UK yet, but its been the law for American firms since 1972!
The Regulations also require employers to keep employees up to date about any increase in the level of risk of harm to their health.
Must conduct ‘Risk Assessment’
The Management of Health and Safety at Work Regulations 1999, requires employers to:
- Have conducted ‘a full and sufficient’ assessment of every process and every factor of the workplace which may be known or which would be foreseeable and likely in the circumstances to present a risk of harm happening, including violence
- Have recorded the findings in writing, indicating an assessment of the level of risk being faced and the potential severity of the outcome in each case
- Have installed suitable measures to eradicate, or where this is impracticable to minimise the risks of identified hazards resulting in harm to anyone
- Be conscious of the adequacy of the precautionary measures being relied on – and any change in the level of risk. (reporting/recording/analysis/monitoring)
- Improve the effectiveness of the arrangements, as found necessary.
The Risk Assessment process must be ongoing, with regular reviews and take into account the views of the staff facing the risks.
The HSE advice on risk assessment states: “The level of detail in a risk assessment should be proportionate to the risk.”
Note: The obligation to carry out Risk Assessment eliminates any excuse of being “unaware of the risks”.
Where a risk of violence is identified
Wherever a risk of serious harm from violence is identified, employers must comply with the Management of Health and Safety at Work Regulations 1999. These Regulations make very explicit what employers are required to do to and, like the Health and Safety at Work Act, they apply to every work activity.
S8 Management Health and Safety Regulations 1999 requires that employers MUST ENSURE that:
- Procedures are in place for “Dangerous Areas” and for events of “Serious and Imminent Danger.”
- Sufficient numbers of suitably qualified staff MUST ALWAYS be on hand to be able to carry them out effectively.
Employers MUST ALSO ENSURE that all staff are:
- Advised in easily comprehensible terms about the risks they face.
- Suitably qualified for the role they are employed to perform.
- Properly supervised.
- Trained to a standard that is “commensurate with the level of risk being faced”.
- Guided against practice known to be unsafe.
- Informed of the Procedures for “serious and imminent danger” and for entering danger areas.
- Authorised, and under no apprehension about stopping work and withdrawing from, circumstances which make it unsafe to do otherwise.
- Prevented from resuming work whilst a “serious and imminent” danger exists.
- Monitored for signs/symptoms that they may be suffering harm (e.g. Stress)
Provision of suitable protective equipment
The Personal Protective Equipment at Work Regulations 1992 govern the provision of equipment (including clothing affording protection) intended to be worn or held by a person at work to protect them against one or more risks to their health or safety, (e.g. stab proof clothing for Door Supervisors working in areas where the use of knives during violent incidents is known to be high.)
The Principles of Prevention
Schedule 1, Regulation 4 of Management of Health and Safety at Work Regulations 1999 sets out the general principles of prevention which apply. These are:
- Avoiding risks;
- Evaluating the risks which cannot be avoided;
- Combating the risks at source;
- Adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health;
- Adapting to technical progress;
- Replacing the dangerous by the non-dangerous or the less dangerous;
- Developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment;
- Giving collective protective measures priority over individual protective measures; and
- Giving appropriate instructions to employees.
The meaning of ‘risk’
In the case of Koonjul v Thameslink Healthcare Services  PIQR P123, CA, Judge LJ Hale said “… there has to be a real risk and not just a mere possibility of danger ….. there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability … ‘
Interpretation of ‘so far as is reasonably practicable’
In the Court of Appeal case: Edwards v National Coal Board (1949) – IKB 704, Lord Justice Asquith said: “… reasonably practicable is a narrower term than ‘physically possible’ and seems to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures needed to avert the risk – whether in money, time or trouble – is placed in the other.”
This interpretation means that the only justification in law for failing to institute measures that are necessary to ensure a safe working environment would be, if the cost of taking the measures was grossly disproportionate to the risk.
Note: Contrary to the norm in legal cases, it is incumbent on the defendant (i.e. the employer) to prove that they have fulfilled their legal obligations.