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Question:

To evaluate the detailed provisions of the Health and Safety at Work etc. Act 1974, case law and subordinate legislation and its effects on successful health and safety management?
 
 

Answer:

Introduction:

Laws relating to health and safety of the citizen in the United Kingdom are mainly governed by the statutory provisions; the name of the concern statute is Health and Safety at Work etc. Act 1974, this statute is formulated as per the regulations of the Union Law. The statute is applicable throughout territory of the entire United Kingdom and any breach of the regulations framed by the Act is a crime in United Kingdom and it is a punishable offence. In England and Wales, the offences are punishable as to summary conviction and with fine that may be extended to 20,000 pounds or unlimited fine can be imposed upon the offender if the offender has been convicted upon indictment in the Crown court.

The sentencing of punishment upon any individual or corporation shall be guided with the principals laid down by the Sentencing Guidelines Council. In England and Wales, unless anything contrary as to the provisions lay down in the statute, if any person suffers from any injury or damage caused by an act of breach of the regulations of the statute then the person suffered from such injury or damage shall posses a cause of action under the law of tort against the offender. The same cause of action is also available in Scotland under the law of delict. But there some exceptions to the rule are also available, these exceptional rules are framed by the judicial system of the country rather these are the precedential laws.

 

Advice to Jane:

Under the given circumstances, the Local Education Authority is responsible for the damage and injury happened to Jane as in spite of knowing the fact that eighteen students in a class is too much and the impact of the overlapped number of student may cause harm to the teacher, the Local Education Authority has not taken any step towards the complaint made by Jane and the Local Education Authority has completely neglected the submissions of Jane.

Though the employer of Jane has not done its duty properly and neglected the complaint of Jane but Jain is not entitled to claim any compensation from the employer under the provisions of the Health and Safety at Work etc. Act 1974 as sec. 47 of the Act excludes civil liability but Jane is entitled to claim compensation under the law of tort. In the case of Hall v Simons (2000), it was held that if the employer or any person who is in a commanding position in the course of an employment then it is the duty of the employer or that person to take necessary actions against the complaint made by the employees relating to the facts of the employment. If any necessary action has not been taken and by virtue of that the employee has to suffer from any loss or injury then the employer shall be held liable for such injury or loss.

In the act of the employer all the essential elements of negligence is present and by virtue of the omission from the part of the employer Jane being an employee has suffered from grave physical as well as mental injury, hence the Local Education Authority should have been taken necessary steps towards the complaint of Jane. Recession cannot be a valid ground of exclusion from the responsibility of the employers towards the employees.

In the case of Latimer v AEC Ltd [1953], any exclusion of the employer towards the duty of the employees based on any business conduct or any issue relating to revenue of the business cannot be considered as a valid exclusion. And the employer shall be liable to compensate the employee for the loss suffered.

Hence, it can be said that Jane is entitled to get compensation from the employer for the act negligence under the law of tort.

Advice to Sam:

Under the given scenario, Sam is entitled to get compensation from the employer under the law of tort for an act of negligence because the explosion caused due the negligence of Sam, in spite of knowing the fact that if he would not wear gloves before doing the experiment an accident may occur and this fact has been told to him by the head teacher of the organization but Sam has overlooked it but the act of Poppy was more dangerous and that causes nervous shock to Sam, in that Sam was not involved by any means.

Before sending poppy into the classroom, it was the duty of the head teacher to know about the competency of Poppy as for the act of Poppy the Local Education Authority will be responsible though she was not the employee of Local Education Authority but she was sent to the classroom by the head teacher of the organization.

In the case of Newman & others v United Kingdom Medical Research Council (1996), the court held that if the employee suffers from any loss due to the negligent of that employee then the employer cannot be held liable for that act of negligence. In the course of the employment every employee has the responsibility to take proper measure as to the safety and these measures should be mentioned by the employer to the employee. But if anything happens due to the negligent act of the employer then the employee shall have the right to be compensated.

With reference to the above mentioned case, Sam suffered from nervous shock for the horror appearance of poppy but not the explosion caused by him. Poppy was sent to the classroom by the head teacher of the organization without knowing the competency of Poppy and without informing her about the safety measures before entering into the classroom; this was the act of negligence from the Local Education Authority.

In the classroom of Vaughan v Menlove (1837), it was held that it is the duty of the employer before assigning any person into the work, to know about the credential and competency of that person. In this regard if any situation occurs and by virtue any person suffers from any loss or injury then the employer shall have the liability to compensate that person.

 

Advice to James:

In this regard Mr. James is also entitled to get compensation from the Local Education Authority under the law of tort for an act of negligence. Poppy was working in the school with the due permission of the head teacher on behalf of the organization but before giving the permission the head teacher has not examined the competency of Poppy. In spite of knowing the fact that an incompetent person may cause damage to the organization as well as to the other staffs of the organization, the head teacher enabled Poppy to enter into the school premises and also to work into it.  

In the case of Wilson v Governors of Sacred Heart RC Primary School, Carlton (1997), the court of law held that school premises are very delicate place to work and before taking any important step the concern authority should look after about the competency of the persons and the possible consequences of the decision. If any loss or damage caused to any person due to an incompetent act of the authority then that organization shall be held liable for payment of damages.

With reference to the above mentioned case the head teacher of the Local Education Authority has not examined the competency of Poppy before assigning her the tasks into the school premises and due to that omission of the head teacher, the accident occur and Mr. James has to suffer from grave physical injury. Hence, the Local Education Authority was responsible for the injury caused to Mr. James and it is liable to pay compensation to Mr. James under the law of tort.

All the three cases are enough capable to be dealt under the law of tort for an act of negligence as it is permitted by The Enterprise and Regulatory Reform Act 2013 and sec. 15 of the Health and Safety regulations.  As argued by Pogge et.al (2010), the Acts in United Kingdom relating to relating to health and safety pdoes not permit the victim or the sufferer to claim any compensation for any breach of the stipulations but the wrong doer may be compelled under the law of tort for the act of negligence though it is very hard to prove before the court of law with competent jurisdiction.

 

Explanation of applicable laws as to the injuries of Dave:

Here, the injuries suffered by Dave are mainly happened due to improper risk assessment. Regulation 3 of the Management of Health and Safety Regulation at Work 1999 specified about the risk management aspects of the employer. According to this provision the employer is responsible to make adequate assessment regarding the risk factors in the course of the employment and all the risk factors are to be disclosed to the concern employee. Identification of the hazardous substances in the employment premises are also very necessary as to determine the actual amount of risk involved in the employment. Apart from that the employer is also responsible to recognize the risk factors in the employment and to provide details assessment regarding all the involved risk. In this case the employer was well aware of the fact that in the laboratory there is some issues relating to ventilation and hot accretive inside the laboratory.

Section 3(1) of the Health and Safety at Work etc. Act 1974, says that it is the duty of the employer to disclose all the necessary and relevant facts relating to the risk factors in the employment to the concern employees. This is one of the most important provisions of the statute and it implies that in case of the breach of this provision and by virtue of that if any employee suffers from any loss or injury then the employer shall be held liable and also to be prosecuted in accordance with the provisions of the Act. 

Apart from that, sec.7 of the Health and Safety at Work etc. Act 1974, states that it is the duty of the employee to take necessary measures as to the care and safety of himself and also to the others. The employee is also responsible for cooperation in the employment with the employer and also with the other necessary requisition.

Advice to Dave:

According to Regulation 4 of the Management of Health and Safety Regulation at Work 1999, the employers are empowered to take necessary measures regarding the prevention of the risk factors. If the Local Education Authority would have followed the stipulations of the mentioned provision then it could be possible that Dave would not have been suffered from such injuries.

Section 3 of the Health and Safety at Work etc Act 1974, every employer has some duties towards the employees along with other. In this regard the employer the head teacher had the duty to take necessary measures in relation to take action against the complaint made by several staffs regarding the problems of ventilation and excess hot temperature in the laboratory room. If the head teacher would have taken proper care and would have performed the specified duties then Dave would not have to suffer from the injury.

Discussion:

As argued by Chaiear and Saejiw (2010), health and safety laws are one of the most sensible laws in the union and the application of these laws are very crucial in nature. In the course of an employment, the employer and the employee both have some responsibilities towards each other; if any of them does not accomplish either of their duties then the organization will not be able to conduct its business adequately.  

In this regard it is to be said that the accidents happened not only because of the non performance of the duties of the Local Education Authority but to some extent Dave was also not aware of his responsibilities as to the safety and security aspects. Because of the complaints made by the other staffs to the head teacher and the awareness of the head teacher to Dave regarding the situation in the laboratory room, hence it was also the duty of Dave to take proper measures before entering into that room and while doing work in that room Dave had to be aware of the furniture situated in that room.

Regulation 3 of the Management of Health and Safety at Work Regulations 1999, has been violated by the Local Education Authority as the specifications mentioned in that provisions has not been followed and this causes a serious amount of breach of the statute.

Regulation 3(4) of the Management of Health and Safety at Work Regulations 1999, specified about the assessment of risks that has not been followed by the Local Education Authority that amounts to breach of the provision.

Regulation 3(5) of the Management of Health and Safety at Work Regulations 1999, is the most important regulation among all the other regulations in the statute, it specified about the facts that has to be taken into account by every employer in relation to employment, the inexperience, immaturity and exposure to chemicals are three relevant stipulations that are specified by the bunch of regulations. These elements were not mentioned for any formality but have great significance in the course of an employment. None of these three specifications has been undertaken nor has the provision been followed by the Local Education Authority. If the organization would have followed the specifications then Dave would not have to suffer from this kind of grave injuries.

According to the provision of sec. 10 of the Health and Safety at Work Act 1974, Health and Safety Executive is empowered to deal with this kind of cases. Hence, the enforcement that is to be applied in this case of Dave is Health and Safety Executive.

According to the new section 14 of the Health and Safety at Work Act 1974, the health and safety executive is empowered to conduct necessary investigation and for that reason the HSE can compel any person of the concern organization for making enquiry or to conduct any investigation process and depending upon the investigation process the Health and Safety Executive produces a report. In that report all the facts and issues relating to the breach and the conducts of the suspect are mentioned by the HSE.

 

The Health and Safety Executive is also empowered to appoint any other person to conduct the investigation and that other person appointed by the HSE shall be entitled to proceed in the same manner as the HSE could proceed. Depending upon the progress of the investigation the appointed officer shall also produce a report and that shall be submitted to the Health and Safety Executive. If the HSE is not satisfied with the components of the report then he may call for reinvestigation.

According to sec. 16 of the Health and Safety at Work Act 1974 Act, the Health and Safety Executive has the power to approve codes of practice along with the guidance notes.

According to the provision of sec. 17 of the Health and Safety at Work Act 1974, if the compliance of the approved codes of practice is failed then it would not amount to a criminal offence but it shall be consider as good evidence that the breach has been done by the employer.

Magistrates Court (summarily): If the accused person is produces before the Magistrate court then the court may impose punishment upon the accused depending upon the relevant evidences and the punishment may be summary imprisonment or fine which may be extended to 20,000 Pounds.

Crown Court (indictment): If the accused person is produces in the Crown court for adjudication then depending upon the ACoP along with the other relevant evidences the court may impose indictment conviction along with fine and the amount of fine may be unlimited.

As opined by Zurn (2007), in the judicial system of United Kingdom the union laws always has the supremacy over the other laws of the country except the constitutions of the member states but the authority of the Crown court is the supreme one in inflicting punishment as to fine. On the other hand the Magistrate courts are the foundation of the judicial system as at the very beginning period the accused are produces before the Magistrate, hence the role of the Magistrates in the judicial system cannot be ignored under the purview of the jurisdiction of Crown Court.

As argued by Scheffer (2010), as per the jurisdiction of the courts crown court has the superiority over the Magistrate courts and the power of Crown courts as to infliction of punishment is also higher than the power of the Magistrate court. Hence, the role of the Crown court is more important in comparison but the role of the Magistrate court is formulated in the base of the judicial system of the country.

 

Conclusion:

After the above discussion it can be said that the importance of the health and safety laws in the united kingdom is very high, not only because of its impact upon the judicial system of the country but also for the remedy it provides to the victims. The scope of the health and safety law is not limited only to the work filed but it includes the entire area of employment irrespective of the category or class. The imposition of punishment specified in the statute of health and safety law, namely the Health and Safety at Work etc. Act 1974, is the key factor for the execution of the statute though some of the acts included in the statute are civil wrong as to its nature but codified laws has superiority over the precedential laws of the nation.

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