There are three broad reasons why health and safety need to be managed within an organization. These are in no particular order but equal attention should be given to all three:
1. Ethical and Moral reasons.
2. Legal reasons.
3. Financial reasons.
1. Ethical and Moral Reasons
It is fair to say that when people go to work they do not expect to be injured or worse. Every employee expects that in return for the duties they perform they can expect to work in a safe environment and return to their families and friends at the end of their shift. It is also fair to say that whether or not you are a risk taker in life you should not be taking risks at work that jeopardize not only your own safety and health but also that of your colleagues.
It is for these reasons that management has a moral duty to their workforce and others who may use their premises or services (i.e. contractors, visitors, customers etc). A Duty of Care exists between employer and employee (and those others affected by their actions).
What is Duty of Care?
Duty of care is the obligation to exercise a level of care towards an individual, that is reasonable – in all circumstances – to avoid injury to that individual or his property. Duty of care is therefore based upon the relationship of the parties, the negligent act or omission and the reasonable foreseeability of loss to that individual.
A negligent act is an unintentional but careless act that results in loss. Only a negligent act will be regarded as having breached a duty of care. Liability for breach of a duty of care very much depends on the public policy at the time the case is heard. Differences in the UK Jurisdictions. In Scotland this area of the law is called Delict while in England, Wales and Northern Ireland it is called the law of Tort.
Delict and tort differ from the law of contract. Contracts generally specify the duties on each of the parties and the remedy if these duties are breached. Upon entering into a contract, the parties obtain specific rights and certain duties. In delict or tort these duties exist through the nature of the parties’ relationship regardless of the contractual obligations.
In both jurisdictions, delict and tort attempt to strike a balance between the individual’s wrongful conduct and compensating the victim for his loss.
Much of the law in this area has been developed by the Courts. However, there are now several statutory rules which apply in particular to employment, disability discrimination, health and safety, data protection and occupier’s liability to name but a few.
The development of the law surrounding duty of care has been similar in the different jurisdictions but there are a number of differences between them, for example, the law of defamation in Scotland in comparison to libel and slander in England, and the law of nuisance. However, many of the general principles and the law of negligence are now more or less the same.
The authority for duty of care is the leading Scottish case of Donoghue v Stevenson 1932 SC (HL) 31. This is often referred to and remembered as ‘the one with the snail‘. The principles laid down by the Court in this case still form the basis for establishing a duty of care under Scottish and English law.
An outline of the events surrounding this case is set out below:
By an action brought in the Court of Session the appellant, who was a shop assistant, sought to recover damages from the respondent – who was a manufacturer of aerated waters – for injuries she suffered as a result of consuming part of the contents of a bottle of ginger-beer which had been manufactured by the respondent, and which contained the decomposed remains of a snail.
The appellant by her condescendence averred:
- That the bottle of ginger-beer was purchased for the appellant by a friend in a cafe, at Paisley, Glasgow, which was occupied by one Minchella;
- That the bottle was made of dark opaque glass and that the appellant had no reason to suspect that it contained anything but pure ginger-beer;
- That the said Minchella poured some of the ginger-beer out into a tumbler, and that the appellant drank some of the contents of the tumbler;
- That her friend was then proceeding to pour the remainder of the contents of the bottle into the tumbler when a snail, which was in a state of decomposition, floated out of the bottle;
- That as a result of the nauseating sight of the snail in such circumstances, and in consequence of the impurities in the ginger-beer which she had already consumed, the appellant suffered from shock and severe gastro-enteritis.
The appellant further averred:
- That the ginger-beer was manufactured by the respondent to be sold as a drink to the public (including the appellant);
- That it was bottled by the respondent and labelled by him with a label bearing his name; and
- That the bottles were thereafter sealed with a metal cap by the respondent.
She further averred that:
- It was the duty of the respondent to provide a system of working his business which would not allow snails to get into his ginger-beer bottles,
- That it was also his duty to provide an efficient system of inspection of the bottles before the ginger-beer was filled into them, and
- That he had failed in both these duties and had so caused the accident.
The general principles for duty of care were highlighted in this case as:
Does a duty of care exist?
This depends on the relationship between the parties, as a duty of care is not owed to the world at large, but only to those who have a sufficiently proximate relationship. The courts have found that there is no liability if the relationship between the parties is too remote.
Is there a breach of that duty?
Liability will only arise if the action breaches the duty of care and causes a loss or harm to the individual that would have been reasonably foreseeable in all the facts and circumstances of the case.
Did the breach cause damage or loss to an individual’s person or property?
When Donoghue was decided, it was thought that duty of care would only be applicable to physical injury and damage to property; however, this has now been extended, in some circumstances, to where there is only pure economic loss.
Another Moral Reason for managing safety is stated by Dr Tony Boyle in his book Health and Safety: Risk Management as “an expectation on the part of society in general that organizations will take reasonable care to ensure that the people and activities they manage do not harm other people or their property”.
This expectation has changed over the years with general shifts in the attitude of society to health and safety. What was acceptable twenty years ago in many aspects of life is no longer acceptable today. This is perhaps noticeable in relation to environmental issues which were not even generally discussed twenty years ago.
However people in general are now less tolerant of lack of health and safety. It seems likely that, as people’s expectations of life in general increase, their expectations for a healthy and safe life also increase.
It is therefore a moral responsibility of management to ensure that safe and healthy working environments are provided for their workforce.
2. Legal Reasons
Legal: The preventive (by enforcement notices), punitive (through criminal sanctions), and compensatory effects of law. There are many legal reasons why health and safety must be managed in organisations. There are laws in place that instil requirements and guidelines for organisations to follow and with which to comply. Failure to do so can lead to fines, imprisonment and loss of business image within the competitive markets.
The Health and Safety Executive (HSE) has enforcement powers given to them under the Health and Safety at work etc Act 1974. Under section 10 of the Act the Health and Safety Executive (HSE) and the Health and Safety Commission (HSC) were established but as of April 2008, they were merged into a new HSE.
The Health and Safety Executive has Inspectors who have the following powers:
- An inspector can gain access without a warrant to a workplace at any time.
- An inspector can employ the police to assist them in the execution of their duties.
- An inspector can take equipment or materials onto the premises to assist in carrying out investigations.
- An inspector can carry out investigations and examinations of equipment, machinery etc as they deem necessary, taking photographs, samples and measurements etc.
- An inspector can order the removal and testing of equipment or machinery.
- An inspector can take statements, records and documents etc.
Powers of enforcement.
An Inspector, if they deem it necessary and appropriate, can issue a Prohibition Notice or Improvement Notice when they believe or have reason to believe that a health and safety contravention is being committed.
A prohibition notice is issued by the Inspector and prohibits the work described in it, if the inspector is of the opinion that the circumstances present a serious risk of personal injury. The notice is usually to take immediate effect although it can have a deferred time limit. The notice when issued remains in place and effective until steps have been taken to remedy the situation that has brought about its issue. An appeal can be made to an employment tribunal within 21 days but the prohibition notice remains in effect until the appeal has been heard.
An Improvement Notice is issued by an inspector (when a statutory requirement is not being complied with) and specifies a time period to remedy the contraventions. As with a prohibition notice, an appeal can be made to an employment tribunal within 21 days. In doing so this has the effect of postponing the notice until the tribunal alters the notice or confirms it.
The HSE can:
- Prosecute any person who contravenes a statutory requirement.
- Prosecute any person who fails to comply with a prohibition notice or improvement notice.
- Seize and render obsolete any article/substance which is considered to be the source of imminent danger.
Statute law is the written law of the land. It includes Acts of Parliament, Regulations etc. An Act of Parliament is called primary legislation and any regulations made under it are called secondary legislation so for example:
Primary Legislation: Health and Safety at Work Act 1974
Secondary Legislation: Management of Health and Safety at Work Regulations 1999, Manual Handling Operations Regulations 1992.
This part of the English law is not embodied in legislation. It consists of rules of law based on common custom and usage and on judicial (court) decisions. English common law became the basis of law in the USA and many other English-speaking countries. Common law developed after the Norman Conquest 1066 as the law common to the whole of England, rather than local law.
As the court system became established under Henry II in the 12th century, and judges’ decisions became recorded in law reports, the doctrine of precedent developed. This means that, in deciding a particular case, the court must have regard to the principles of law laid down in earlier reported cases on the same or similar points, although the law may be extended or varied if the facts of the particular case are sufficiently different.
Hence, common law (sometimes called ‘case law’ or ‘judge-made law’) keeps the law in harmony with the needs of the community where no legislation is applicable or where the legislation requires interpretation.
Civil Law is the section of the law that deals with disputes between individuals or organisations. For example, a car crash victim claims damages against the driver for loss or injury sustained in an accident, or one company sues another over a trade dispute. Unlike criminal offences, the Crown Prosecution Service (CPS) does not prosecute a civil offence. Rather than any sentence, custodial or otherwise, the end result is usually financial compensation. Civil Law has developed in a similar way to the way criminal law has, through a mixture of Statutory Law made by Governments, and ‘precedent’ which is created by earlier cases.
Burden of proof.
One crucial difference between Civil and Criminal law is that the ‘burden of proof’ is lower in a civil case. A criminal case must be proved ‘beyond reasonable doubt’. A civil case only has to be proved on the ‘balance of probabilities,’ i.e. it is ‘likely’ that the defendant is guilty.
The OJ Simpson trial in America is a classic example. The criminal trial had not proved ‘beyond reasonable doubt’ that he had murdered his wife, yet a subsequent civil trial decided that on the ‘balance of probabilities’ he had. As a result, the victim’s family was awarded compensation, but in the criminal case, Simpson was not found guilty of murder, so he was not incarcerated. Civil actions are not always successful though. The family of Stephen Lawrence brought a civil action against those suspected of his murder. Although the ‘burden of proof’ was lower than in a criminal trial, the men were once again acquitted when crucial identification evidence was ruled to be inadmissible.
Since the introduction of the Civil Procedure Rules in 1999, after a review by Lord Woolf, making a claim for compensation under civil law has been made easier and less time consuming. Claims are now handled differently in proportion to their complexity and claim value.
To assist in expediting this process, the Personal Injury Protocol was established and made the early exchange of any documentation a priority in order for both sides of the claim to establish their ‘position'(either they feel they can successfully defend or admit to some percentage of liability).
After a detailed written letter of claim has been received, the defendant’s solicitor must acknowledge the letter within 21 days. There is then a period of three months for the exchange of documentation and information so as to progress any investigation. After the investigation, a decision will be made whether to defend the claim or admit liability.
3. Financial Reasons
Direct (insured) and indirect (uninsured) costs associated with incidents and their impact on the organisation. Tried and true approaches to safety have performed exceptionally well. The workplace has never been safer, yet financial margins can be wiped out through compensation claims resulting from unsafe work practices. For any organisation, financial survival can hinge upon a single catastrophic accident or even a series of much smaller ones.
Safety professionals will have to create organisational processes with safety seamlessly integrated. Leaders, supported by safety personnel, will use opportunity-risk concepts to achieve competitive advantages in the marketplace.
Losses due to injuries exceed £12 billion annually. Worse yet, these are the direct costs – indirect costs are even more impressive despite their elusive nature. For example, consider only the many inclusive costs to defend yourself against a lawsuit or the costs of retraining replacements, increased insurance premiums, production interruptions and poor morale.
You may assume that your liability insurance covers you for the full cost of accidents and claims in your workplace. Research in Ireland has shown that the insured costs of accidents are only the tip of the iceberg when it comes to determining the full cost of an accident.
The cost of accidents, both locally and nationally, are made up of elements of the following:
- Direct Costs (Insured).
- Hospital, etc treatment.
- Permanent disability.
- Sick pay.
- Legal costs.
- Insurance claims.
- Damage to buildings, vehicles, machinery, etc.
- Product loses and or damage.
- Material loses and or damage.
- Overtime working.
- Indirect Costs (uninsured)
- Investigation costs.
- Hiring or training replacement staff.
- Loss of experience and expertise.
- Lowering of morale.
- Loss of goodwill.
- Loss of image.
- Business interruptions.
- Product liability.
- Production delays.
- Increased premiums.
We hope this little article is comprehensive enough to enable you understand the reasons why management of health and safety in the work environment should be given utmost attention.