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NEBOSH National General Certificate

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Title: NEBOSH National General Certificate


1
NEBOSH National General Certificate
  • Unit 1 Session 2
  • Criminal liability
  • Health and Safety at Work Act 1974 and
    subordinate legislation
  • Roles and functions of external agencies
  • Powers of inspectors and enforcement

2
Statute Law Types
  • Acts eg, Health and Safety at Work etc Act 1974
    - primary or principal legislation with enabling
    provisions
  • Regulations eg, Control of Substances Hazardous
    to Health regulations 1999 - delegated
    legislation
  • Orders eg, Commencement Orders bringing Acts
    into force
  • Approved Codes of Practice (ACoPs) eg, COSHH
  • Guidance Notes eg, HSE HSG and GN series

3
Statute Law Status of Acts and Regulations
  • Acts primary or principal legislation with
    enabling provisions made by parliament
  • Regulations delegated (by Acts) legislation made
    by appropriate Secretary of State following
    proposals made by Health and Safety Commission -
    laid before parliament and do not require a vote
    but can be vetoed within 40 days of being laid

4
Status of Orders, ACoPs and Guidance
  • Approved Codes of Practice supplementary
    guidance to Acts regulations approved by HSC.
    Failure to comply not an offence provided
    defendant can show compliance achieved by some
    other equally effective means
  • Guidance eg, HSC/HSE guidance, British
    Standards, industry guidance - not law but
    persuasive

5
Types of Statutory Duty
  • Absolute must be achieved whatever cost or
    inconvenience
  • Practicable (possible in the light of current
    knowledge and invention)
  • Reasonably practicable (Edwards v National Coal
    Board (1949)) - balance between cost of action
    (money, time, inconvenience) and risk - where
    risk is insignificant in relation to cost action
    need not be taken

6
Criminal Law Offences
  • Summary offences least serious criminal offences
    heard only in Magistrates Courts, eg TWOC, common
    assault
  • Triable either way triable summarily or on
    indictment (most health and safety cases) can be
    heard by Magistrates Court or Crown Court - both
    prosecutor and defendant have a role in deciding
    the venue
  • Indictable offences serious offences which can
    only be heard by Crown Court, eg murder, robbery

7
Magistrates Courts
  • All criminal cases begin in the Magistrates Court
  • Magistrates are appointed members of public
    assisted on law and procedure by professionally
    qualified Clerk to Justices
  • Summary offences always heard in Magistrates
    Courts

8
Magistrates Courts (Cont)
  • Triable either way Magistrates decide venue but
    defendant has right of trial in Crown Court. If
    found guilty by Magistrates they may refer case
    to Crown Court for sentencing if they feel their
    powers are inadequate
  • Indictable offences Magistrates ensure
    sufficient evidence before referring to Crown
    Court (commital hearing)

9
Crown Courts
  • Trial by judge (decides law) and jury (decide
    facts)
  • Trial of cases where defendant has elected jury
    trial or where Magistrates have decided jury
    trial is appropriate due to seriousness and/or
    their limited powers of sentence
  • Prosecution and defendant represented by counsel

10
Penalties Magistrates Courts
  • Failing to comply with general duties under
    Health and Safety at Work etc Act 1974 up to 20
    000
  • Failing to comply with Improvement or Prohibition
    Notice up too 20 000 and/or up to 6 months
    imprisonment
  • Failing to comply with regulations up to 5000

11
Penalties Crown Courts
  • All offences unlimited fine
  • Failing to comply with an Improvement or
    Prohibition Notice unlimited fine and/or up to 2
    years imprisonment

12
Manslaughter (Involuntary)
  • Unlawful killing without malice aforethought -
    causing
  • death through gross negligence. Under present
    law a
  • company cannot be convicted without proof of
    reckless
  • behaviour by at least one director (the
    identification
  • principle).
  • Proposed new offences of
  • corporate killing
  • killing by individuals where recklessness or
    gross carelessness as to health and safety
    precautions has caused death

13
Health and Safety at Work etc Act 1974 (HSWA 1974)
  • Historical Context
  • 1833 first substantive health and safety
    legislation and four inspectors appointed
  • Early legislation selective, prescriptive and
    hardware based
  • Robens Committee 1970-1972

14
Report of Robens Committee 1972
  • Replace existing legislation with one enabling
    Act applying to all persons at work and persons
    affected by work activities
  • Create new national authorities HSC and HSE
  • Replace mass of detail with basic principles of
    general application
  • Place more emphasis on software - systems of
    work, training, supervision, etc
  • Provide new methods of enforcement in addition to
    prosecution

15
HSWA 1974 Section 2
  • General duty to ensure, so far as is reasonably
    practicable, the
  • health, safety and welfare at work of all
    employees and in
  • particular
  • safe plant and systems of work
  • safe use, handling, transport and storage of
    substances and articles
  • provision of information, instruction, training
    and supervision
  • safe place of work, access and egress
  • safe working environment and adequate welfare
    facilities

16
HSWA 1974 Section 2 (cont)
  • Written health and safety policy statement (where
    5 or more employees)
  • consultation with safety representatives and
    formation of heath and safety committees where
    there are recognised trade unions (Safety
    Representatives and Safety Committees Regulations
    1977)
  • Note that Health and Safety (Consultation with
    Employees) Regulations 1996 extends consultation
    rights to all employees

17
HSWA 1974 Section 3
  • General duty of employers and self employed to
  • conduct undertaking so as to ensure so far as
  • reasonably practicable that persons other than
    their
  • employees are not exposed to risks to their
    health or
  • safety, eg, visitors, contractors, members of
    public.
  • Potentially of wide application.

18
HSWA 1974 Section 4
  • General duty of persons concerned with premises
    to persons
  • other than their employees
  • Covers situations where persons permit use of
    non-domestic
  • premises by persons who are not their employees
    as
  • a place of work or,
  • a place where they may use plant or substances
    provided for their use there

19
HSWA 1974 Section 5
  • General duty of persons in control of premises
  • in relation to harmful emissions into
  • atmosphere.
  • Dormant section - overtaken by
  • Environmental Protection legislation enforced
  • by Environment Agency.

20
HSWA 1974 Section 6
  • General duty of manufacturer etc. as regards
    articles
  • and substances for use at work. Applies to any
  • person who
  • designs, manufactures, imports or supplies any
    article for use at work or,
  • manufactures, imports or supplies any substance
    for use at work.

21
HSWA 1974 Section 7
  • General duties of all employees at work
  • Section 7(a) to take care for health and safety
    of themselves and others who may be affected by
    acts or omissions and,
  • Section 7(b) to co-operate with employer so as
    to enable compliance with statutory requirements.

22
HSWA 1974 Section 8
  • No person to intentionally or recklessly
    interfere with or
  • misuse anything provided in the interests of
    health, safety or
  • welfare

23
HSWA 1974 Section 9
  • Duty not to charge employees for things done or
    provided
  • under specific requirements.
  • Employer may not levy any charge - or permit any
    levy to be
  • charged - concerning anything done or provided
    under
  • statutory requirements.

24
HSWA 1974 Section 37
  • Provides that where an offence shown to have been
  • committed
  • with consent or connivance of,
  • or to have been attributable to neglect,
  • on part of director, manager, secretary, etc,
    both corporate
  • body and person may be prosecuted and punished
  • accordingly.

25
HSWA 1974 Section 40
  • Where a duty is qualified by reasonably
    practicable or
  • practicable the burden is on the accused to prove
    - on a
  • balance of probabilities - that it was not
    reasonably
  • practicable or practicable to do more than was
    done.
  • The reverse onus of proof.

26
The Management of Health and Safety at Work
Regulations 1999
  • Originally implemented in 1993 as a result of EC
    Framework Directive (89/391/EEC)
  • Made under powers contained in Section 15 of HSWA
    1974
  • Accompanying Approved Code of Practice (approved
    under Section 16 of HSAW 1974)
  • Regulations and ACoP revised in 1999

27
Health and Safety Commission (1)
  • HSC established with general duty to do such
  • things and make such arrangements as it considers
  • appropriate for the general purposes of
  • ensuring health, safety and welfare of persons at
    work and protecting those not at work from work
    activities
  • controlling keeping and use of dangerous
    substances
  • controlling emissions to atmosphere

28
Health and Safety Commission (2)
  • comprises up to nine members appointed by
    Secretary of State (Department for Work and
    Pensions)
  • chairman appointed by SoS and other members
    appointed from industry, trade unions, local
    authorities and others
  • HSC has several advisory committees to give it
    advice on subjects such as toxic substances,
    nuclear safety etc

29
Health and Safety Executive (1)
  • Statutory body working under direction and
    guidance of HSC
  • (HSC may not direct HSE about enforcement in
    respect of
  • any particular case).
  • Main functions exercised through
  • inspectorates to
  • enforce legal requirements
  • provide advice to employers, trade unions, etc

30
Local Authority Enforcement
  • Enforcement of health and safety legislation in
    lower risk
  • sectors, eg offices, shops, places of
    entertainment, allocated
  • by regulations to relevant local authority.

31
Powers of Inspectors (1)
  • Inspectors can
  • enter premises at any reasonable time (or any
    time where there is danger)
  • take a police constable where obstruction is
    anticipated
  • take other people and equipment or materials onto
    premises to assist in investigations
  • carry out any examinations and investigations as
    required
  • require locations to be left undisturbed

32
Powers of Inspectors (2)
  • take measurements, photographs and recordings
  • take samples of articles or substances
  • require dismantling and/or testing of articles
    and substances
  • take possession of articles and substances for
    examination and use as evidence
  • take statements and copies of relevant documents
  • require provision of facilities to assist
    enquiries
  • do anything else necessary to enable duties to be
    carried out

33
Enforcement
  • Inspectors visit premises and places for two
  • basic purposes
  • Proactive (planned preventive) inspections
  • Investigations usually in response to RIDDOR
    reports or complaints

34
Enforcement Options
  • Advice (verbal or in writing)
  • Improvement Notice
  • Prohibition Notice
  • Prosecution (summary or indictment)
  • Seize, render harmless or destroy any article or
    substance considered to be cause of imminent
    danger or serious injury

35
Advice
  • Where health and safety is generally well
  • regulated and matters of minor concern are found,
  • inspector may give advice rather than take formal
  • enforcement action.
  • Advice may be confirmed in writing onus placed
    on
  • employer to confirm action taken.

36
Improvement Notice
  • requires action to be taken to remedy a breach of
    statutory duty within a specified time period
  • at least 21 days must be given during which an
    appeal to an industrial tribunal may be made
    inspector may extend term of notice
  • making of an appeal suspends notice until terms
    confirmed or amended by tribunal

37
Prohibition Notice
  • may be issued where inspectors opinion is that
    work activity presents risk of serious personal
    injury
  • may take immediate effect (usually) or may be
    deferred
  • appeal to industrial tribunal may be made within
    21 days but does not suspend the notice until
    appeal has been heard

38
Prosecution
  • HSC expects that prosecution will be considered
  • when it is appropriate to draw general attention
    to the need to comply with the relevant law,
  • or there is judged to have been considerable harm
    arising from breach of law,
  • or the gravity of offence and general record and
    approach of the offender warrants it

39
Enforcement Policy
  • Basic principles
  • Proportionality
  • Consistency
  • Transparency
  • Targeting
  • See HSC Enforcement Policy Statement
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