Introduction
As can be imagined from the number of times it was mentioned in the section on development of health and safety in the UK, the Health and Safety Executive (HSE) is the most important and best-known organisation in the UK with a remit relating to occupational safety and health.
In this section we will briefly look at the structure, role and purpose of the HSE as of 2020, before covering some of the most pertinent generic health and safety legislation that applies in any workplace.
Purpose of the HSE
By their own description, the purpose of the HSE as a regulator is simple:
“…we aim to prevent workplace death, injury or ill health”
(HSE 2019).
This is a rather bold statement, and, whilst it does sum up the purpose of the HSE nicely, it is not terribly helpful. The way in which the HSE seeks to do this is in fact a lot more useful.
The HSE gives itself 5 main duties amongst others:
- Providing advice, information and guidance
- Raising awareness in workplaces by engaging and influencing them
- Operating licensing and permissioning schemes for particularly dangerous industries
- Carrying out investigations and inspections – usually in a targeted manner
- Carrying out enforcement action when necessary
The HSE also carries out research into occupational risks. It has overall responsibility in England, Wales and Scotland, and is a public body sponsored by the Department for Work and Pensions.
Their purpose is nicely summed up in this video:
The primary guiding force for the HSE is that those who create risks are best placed to control them; and indeed this makes sense. The people doing the work tend to know the work better than those looking in from outside. This is not to say that a fresh pair of eyes is not often extremely useful, of course, and indeed the phrase “that’s how we’ve always done it” is the enemy not just of safety but of innovation.
An interesting psychological experiment (that may never have happened, but is often quoted) around this point is well explained in this video:
It must also be remembered that the HSE do not act with a vindictive hatred of business, nor with a desire to create an environment in which work cannot be performed effectively. At all stages from advice, to investigation, to enforcement, they take the economic impact into consideration and ensure their actions are proportionate, targeted, consistent, transparent and accountable (HSE ibid).
Structure of the HSE
To carry out their work, the HSE is divided into a series of divisions, departments, directorates and so on. It also incorporates several separate agencies; these include:
The Health and Safety Laboratory was originally established in 1921 to carry out tests on a large scale relating to hazards in the mining industry, particularly around coal dust and explosions. It now employs over 350 people from a broad range of specialisms, including engineers, psychologists, and health professionals.
It now operates as an agency carrying scientific research and investigations not just for the HSE but for other government agencies and the private sector. It was the HSL who investigated and suggested the process of the 2005 Buncefield fire.
As would be expected this inspectorate is responsible for ensuring correct application of legislation in all deep mines in the UK and for inspecting workings to ensure their safety. This includes not just operational mines, but to a certain extent also the vast number of abandoned mine workings, in so far as they need to continue being monitored.
The OSD was established in 1991 as a direct result of the Cullen Inquiry into the Piper Alpha disaster. Prior to this the department of energy was responsible for both production and safety, which was seen as a conflict of interest (with some justification). The Offshore Safety Act 1992 made the Mineral Workings (Offshore Installations) Act 1971, and its subsidiaries, statutory provisions of the HSWA.
One of the first responsibilities was the establishment of the Safety Case Regulations. The OSD was also tasked with carrying out a thorough review of the existing legislation with the intention of moving towards a goal setting regime. The OSD became part of the HSE Hazardous Installations Directorate in 1999 before moving to the new Energy Division in 2013.
HSWA and the Six Pack Regulations
As will already have been realised, there is an enormous array of legislation in the UK relating to health and safety. However, the majority of situations are covered under a comparatively small number of acts. These are the two pieces of primary legislation, namely Health and Safety at Work Etc. Act 1974 and The Management of Health and Safety at Work Regulations 1999. Underneath the second act sit six pieces of daughter regulation, commonly referred to as the six pack. These are:
- Workplace (the First) Directive 89/654: Workplace (Health, Safety and Welfare) Regulations 1992
- Work Equipment (the Second) Directive 89/655: Provision and Use of Work Equipment Regulations 1992
- Personal Protective Equipment (the Third) Directive 89/656: Personal Protective Equipment at Work Regulations 1992
- Manual Handling of Heavy Loads (the Fourth) Directive 90/269: Manual Handling Operations Regulations 1992
- Display Screen Equipment (the Fifth) Directive 90/270: Health and Safety (Display Screen Equipment) Regulations 1992
- Carcinogens (the Sixth) Directive 90/394: Control of Substances Hazardous to Health (Amendment) Regulations 1992
Between them, these eight pieces of legislation account for the vast majority of quotations of health and safety law, and will, in almost all cases provide the guidance needed for any given situation – though there may be a subsidiary act that can provide more in depth guidance for a specific situation. Due to the sheer importance of these pieces of legislation we will briefly look at each, next.
Health and Safety at Work etc. Act 1974
The importance of the HSWA cannot be overstated in terms of health and safety legislation. Not just in the UK, but in a European and global context as well. It is the primary piece of legislation covering occupational health and safety in the UK, and, when introduced, it was revolutionary. Whilst it has been amended several times since it was introduced, the core of the act has remained unchanged for approaching 50 years – testament to its effectiveness and foresight.
The latest version of the act can be viewed and downloaded from the Government website.
The HSWA lays down the duties not just of employers, but also employees, contractors, the general public and other groups who may be affected by work activities. It is the duty of employers to protect the health, safety and welfare of all employees, as well as any others on their premises, including temporary workers, casual workers, the self-employed, visitors and the general public. These duties are extensive and wide ranging, but are qualified by the words ‘…so far as reasonably practicable’. This means that an employer does not necessarily need to take some specific precaution, if it can be shown that the cost of the measure is not justified by the attendant reduction in risk. It does not mean that an employer need not take the precaution simply because they cannot afford it – indeed if the business cannot operate safely, then it is not a viable business.
Under the terms of the act the government is also able to issue regulations, guidance, codes of practice and so forth. In many cases these edicts set out the detailed responsibilities of the employer in every aspect of the workplace. The act also created the Health and Safety Executive and the Health and Safety Commission – which have since merged under the single banner of the HSE.
Perhaps the two most significant aspects of the HSWA (as amended), however, are the introduction of punitive measures – namely a potentially unlimited fine and up to two years in prison – and the fact that the design of legislation is now, in many ways, driven by industry. This concept of asking those doing the work how best to protect themselves was previously unheard of and has significant benefits. Largely this has to do with helping ensure compliance. Involving the regulated in the design of regulation helps to give them a sense of ownership, which tends to mean that they are more inclined to follow the legislation, but it also adds credibility to the legislation. It is extremely difficult to argue that legislation is inappropriate or too extensive when the person making the complaint was involved with the design!
Management of Health and Safety at Work Regulations 1999
These regulations were introduced at the end of the last millennium and are, in fact an update of the Management of Health and Safety at Work Regulations 1992, which they replaced and revoked. The regulations were introduced with the primary intention of reinforcing the HSWA which by 1999 had been in force for a quarter century and needed updating. The Management of Health and Safety at Work Regulations (MHSWR) not only clarified the duties that were already in place under the HSWA but also introduced duties for employers and employees, including those who are clients, contractors, sub-contractors and designers.
The main duties placed on employers under the act are:
- making 'assessments of risk' to the health and safety of its workforce, and acting upon risks they identify, so as to reduce them (Regulation 3);
- appointing competent persons to oversee workplace health and safety;
- providing workers with information and training on occupational health and safety; and
- operating a written health and safety policy (Worksmart 2020).
When looking at the first point – risk assessment – the act and its guidance provide the following General Principles of Prevention, which is also known as the hierarchy of risk control. They are:
- Avoid the risk – does the work need to be carried out at all?
- Evaluate risks which cannot be avoided
- Combat risks at source
- Adapt the work to the individual
- Adapt the technical process
- Replace the dangerous process with a non-dangerous or less dangerous process
- Develop overall policy to cover technology, working conditions, and so on
- Give collective protection priority over individual protection (for example, a screen rather than goggles)
- Give appropriate instruction to employees
- Provide PPE
It should be noted that the need to assess risk does not necessarily mean there is a need for formal written risk assessments. There is no requirement for this with companies of less than 5 employees, and even for large multinationals it is only necessary in cases where there is significant risk. Part of the poor image of Health and Safety legislation in the UK can be traced back to companies carrying out formal risk assessments when they are not needed, or using them in an inappropriate manner.
The MHSWR also lay down regulations for several other responsibilities, but these are of less importance so do not need to be discussed here.
The MHSWR were amended in 2003 which removed some significant civil liability exclusions. Under the 2003 amendment, employees are now able to claim damages from their employer if they suffer due to the employer breaching the 1999 regulations, but employers can also bring actions against employees if they breach their duties as laid out in the 1999 act. It should be noted that the second provision is rarely used; this is not because employees are rarely responsible, but rather because financially it does not make sense. The regulations were updated again in 2006, but this was largely just to clarify some matters of confusion in the early regulations.
The Six Pack
As these regulations are usually considered as a group, it makes sense to look at them in the same way – although we will discuss each briefly here.
As may be suspected from the name, these regulations apply to the actual physical environment in which work is carried out. They are high level regulations, and can basically be summed up as 'the employer has a duty to provide a workplace that is clean, comfortable and safe to work in'. Employers are specifically required to provide:
- adequate lighting, heating, ventilation and workspace (and keep them in a clean condition);
- staff facilities, including toilets, washing facilities and refreshment; and
- safe passageways, i.e. to prevent slipping and tripping hazards.
Exactly what this will mean varies between working environments. For example, a small company with 6 employees would not be expected to provide gendered washing facilities, or a full canteen – but access to a unisex toilet and drinking water would be a must.
This legislation was updated in 1998, but the intention remains the same. In a way, this is similar to the above regulation, but rather than relating to the actual work environment (buildings etc.) this regulation covers equipment provided for employees to carry out their work. This could be as complex as an aeroplane, or as simple as a desk, both are work equipment.
The main provisions require employers to:
- ensure the safety and suitability of work equipment for the purpose for which it is provided;
- properly maintain the equipment, irrespective of how old it is;
- provide information, instruction and training on the use of equipment; and
- protect employees from dangerous parts of machinery.
Although there have been a couple of small tweaks to this legislation, it is basically the same as when it was introduced in 1992, and is one of the simpler regulations. It really only confers two main duties on the employer:
- ensure that suitable Personal Protective Equipment (PPE) is provided free of charge "wherever there are risks to health and safety that cannot be adequately controlled in other ways." The PPE must be 'suitable' for the risk in question, and include protective face masks and goggles, safety helmets, gloves, air filters, ear defenders, overalls and protective footwear; and
- provide information, training and instruction on the use of this equipment.
It should be noted that this does not mean the employer needs to provide a work uniform, and there is also a significant onus placed on the user. For example, it is often the user’s responsibility to ensure that overalls are kept clean, and that any equipment is replaced when needed – though the employer should cover the cost of replacement. In addition, if PPE is supplied by the employer then the user has a duty to use it, and refusal to use PPE can be considered an act of gross misconduct resulting in dismissal.
The key rule here is simple – do not carry out manual handling operations; make use of lifting equipment and aids instead.
Unfortunately this is sometimes not possible for a variety of reasons. In this case, a manual handling operation will be necessary and the aim must be to attempt to ensure there is no adverse effect on the person or persons carrying out the operation.
The main provisions here are:
- avoid (so far as is reasonably practicable) the need for employees to undertake any manual handling activities involving risk of injury;
- make assessments of manual handling risks, and try to reduce the risk of injury. The assessment should consider the task, the load and the individual's personal characteristics (physical strength, etc.); and
- provide workers with information on the weight of each load.
In 2016 musculoskeletal injuries, including back pain, was the 3rd largest reason for time off sick in the UK, after colds and stress.
Unsurprisingly, since the introduction of this regulation in 1992, it has become more important, with more and more of us using computers at work - to the point where the use of Display Screen Equipment (DSE) is virtually ubiquitous.
The main provisions of this regulation however apply to those identified as DSE users, which is defined as people who habitually use a computer as a significant part of their job – basically anyone who uses a computer for an hour or more continuously, and/or makes daily use of DSE. There are quite a large number of duties for employers here, most of which are actually fairly straightforward but which are often unfortunately broken – frequently with the complicit agreement of the user.
Employers are required to:
- carry out risk assessment of workstation use
- ensure users take breaks
- provide eyesight tests
- provide H&S information
- Provide adjustable furniture
- Demonstrate that they have procedures in place to reduce the risks associated with DSE such as Repetitive Strain Injury (RSI)
Unfortunately, however, office and desk work is often seen as “safe” and as such people do not protect themselves adequately against the risks, with eyestrain and RSI being more common than is necessary (Worksmart ibid).
These regulations were extensively revised, rewritten and reinvigorated in 2002 and as such it is the 2002 regulations we will discuss here – the 1992 regulations are only mentioned because they formed part of the original 6 pack regulations.
COSHH, as can be guessed from the name, is the law that requires employers to control dangerous substances. What is perhaps less obvious however is what substances can be classed as harmful or hazardous to health. Some are obvious – bleach for example – others less so, such as wood dust (HSE 2019).
There are 8 main responsibilities placed on the employer under COSHH. They are:
- Using control measures to protect workers from anything hazardous
- Preventing exposure if possible, if not adequately controlling exposure
- Providing sufficient and suitable information, instructions and training, along with PPE if necessary
- Ensuring controls are kept working correctly
- Drawing up accident and emergency plans for anything that might happen with the substances
- Carrying out suitable health surveillance on those who are exposed
- Keeping exposure under the Workplace Exposure Limit (WEL)
- Carrying out a COSHH risk assessment – and carrying out anything identified (Burton 2015)
Obviously, some environments have more significant COSHH risks than others, but any workplace is likely to contain substances that could be dangerous if used incorrectly.
Other significant legislation
In this final section we will look at two final pieces of legislation that, although not part of the 6 pack, are generally considered to be two of the most significant pieces of UK health and safety legislation.
They are the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations and the Working Time Regulations.
Wikimedia/Public domain
Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR)
These regulations make it a legal requirement for employers to report a wide range of incidents to either the HSE or to the local authority environmental health department. They also require employers to record the date and time of the incident along with other information such as the details of the person affected and the nature of the injury in an accident book – though it should also be noted that a physical book is now not usually acceptable, as it is necessary to protect the employee’s privacy under General Data Protection Regulations (GDPR) – extremely difficult with an actual book!
The regulations lay down what types of things must be reported, namely:
- the death of any person;
- specified injuries including fractures, amputations, eye injuries, injuries from electric shock, and acute illness requiring removal to hospital or immediate medical attention;
- 'over-seven-day' injuries, which involve relieving someone of their normal work for more than seven days as a result of injury caused by an accident at work;
- reportable occupational diseases, including:
- cramp of the hand or forearm due to repetitive movement;
- carpal tunnel syndrome, involving hand-held vibrating tools;
- occupational asthma;
- tendonitis or tenosynovitis (types of tendon injury);
- Hand-Arm Vibration Syndrome (HAVS), including where the person’s work involves regular use of percussive or vibrating tools; and
- occupational dermatitis;
- near misses (described in the Regulations as 'dangerous occurrences') (Worksmart ibid)
It is probably not surprising to learn that the most under reported of these is the near misses, as many people simply feel it is not necessary – nothing happened so why report it. However, in many ways these are the most important to report as they give the opportunity to prevent an injury or other more significant event from happening.
The Working Time Regulations 1998 (as amended)
These regulations implemented two EU directives on the organisation of working time and the employment of young workers (under 18s), and with the imminent departure of the UK from the EU, it may be that the regulations change significantly (or they may not change at all). The regulations cover the right to annual leave, rest breaks and limit the maximum length of the working week.
Key protections introduced for adults include:
- a 48-hour maximum working week. Employers cannot require a worker to work more than an average 48-hour week, unless the worker has opted out of this voluntarily and in writing and even then it is not to be considered the norm
- minimum daily rest periods of 11 hours, unless shift-working arrangements have been made that comply with the Regulations
- an uninterrupted 20-minute daily rest break after six hours' work, to be taken during, rather than at the start or end of the working time. An additional 5 minutes for every hour over 6 hours worked, though this does not need to be taken at the same time.
There are additional protections for those aged 15 to 18:
- a daily uninterrupted rest break of 30 minutes after working more than 4.5 hours;
- an uninterrupted 12-hour break in each 24 hour period of work.
- weekly rest of at least 48 hours in each seven-day period
- cannot normally work more than eight hours a day or 40 hours a week. These hours cannot be averaged out. There is no 'opt-out' for young workers.
Whether adult or young person, all are entitled to 5.6 weeks paid leave per year, pro-rata. This includes bank holidays and closure days.
Regarding the maximum 48 hour week, employers have the right to ask staff to opt out, but staff have the right to say no, and to opt out at any time whether or not the employer agrees.
Summary
Health and safety in the UK has developed over the course of the last 200 years to become some of the most comprehensive in the world, making the UK one of the safest places to work.
There are certain key pieces of legislation which almost everyone, but certainly any person with management or supervisory responsibility, should be aware of.
Legislation changes frequently, and can appear complex, but in many cases the simplest method of dealing with an incident, is the correct one.
Finally, it must be remembered that this content is provided as information in the study of this module and cannot be taken as legal advice, and whilst every effort has been taken to ensure correctness at the time of writing it cannot be guaranteed to be correct at the time of reading. Individual advice should be sought for any situation other than studying this module.
References
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