Employer vs. employee: where does H&S responsibility lie?
Health and safety legislation around the world clearly states that every business is responsible for the safety and wellbeing of their employees. However, there is often mention of employees taking responsibility for their own safety and that of those around them. But if something goes wrong and someone is injured or killed at work, where does the responsibility lie in the eyes of the law?
“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”
Most of us will be familiar with this phrase or variations of it, but what does ‘reasonably practicable’ actually mean?
Reasonably practicable means the employer is required to complete a thorough risk assessment and take all possible steps to ensure the health and safety of employees while taking into consideration the following;
- The likelihood of the hazard or risk occurring
- The degree of harm that might result from the hazard or risk
- The availability and suitability of ways to eliminate or minimise the risk
- The cost associated with available ways of eliminating risk and whether this is proportionate to the risk
It is important to note that from a regulator’s perspective, costs will not be a key factor in determining what is reasonable for the employer to do to reduce risk. Safety is clearly favoured over cost unless it can be shown to be grossly disproportionate.
Following this advice could result in a number of different scenarios such as;
- A risk is identified that is low risk and unlikely to occur. There is no way of eliminating the risk or doing so would be extremely costly. The business does not need to take such steps to eliminate the risk
- A moderate risk is identified and there are steps that can be easily taken to reduce the risk. The solution will cost the business some time and money. The business must take the steps to reduce the risk.
- The risk is high but there are no suitable ways to eliminate or minimise the risk. The work should not be carried out.
What are some of the steps the employer could take?
Policies and procedures must be put in place for the risks identified by the business. These will vary entirely depending on the risk, the type of work being carried out, and the worker’s involved. Some examples include;
- Providing the employee with safety equipment or clothing
- Providing training for the employee
- Replacing or carrying out maintenance and servicing on vehicles and equipment
- Preventing employees from working on a particular site or avoiding work during certain hours/weather conditions
- Sending employees out in pairs when visiting problematic areas/clients
Once policies and procedures are put into place, the responsibility does not stop there. All policies must be reinforced and regularly reviewed. Employees must be properly informed on policies and understand exactly what is expected of them. The failure to communicate policies and procedures to the employee, or the failure to ensure they are being followed, will leave the employer liable should something go wrong.
Equally, if target or time pressures are placed on the employee which can only be met by working unsafely, again it is the employer who will be found responsible.
Here are some steps that must be taken to reinforce policies and procedures;
- Clearly communicate policies and requirements to all employees
- Focus on safety and create a supportive work environment
- Ensure any safety equipment that is issued is in working condition.
- Provide appropriate information and training to ensure the employee knows exactly how and when to use equipment
- Safety equipment must be made mandatory
- Inspections should be carried out to ensure equipment is being used and any training followed
- If it is found that equipment isn’t being used or training isn’t being followed, retraining and support should be provided
- Incidents and near miss reporting should be encouraged so that unsafe working can be corrected
- Risk assessments must be carried out at agreed regular intervals and policies examined to determine effectiveness
- All new employees must provide the same level of training and support
It is only when the employer has taken all reasonable steps to ensure the health and safety of their employees, that the responsibility then falls on the employee.
It shall be the duty of every employee while at work—
(a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and
(b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
In regards to the law, if the employer has put health and safety policies and procedures in place, the employee must comply. Training must be attended and applied in the workplace, any safety equipment or clothing used and any rules or procedures followed. If the appropriate amount of support is provided by the employer and there is a blatant disregard from the employee, it is only in this scenario that the individual would be liable if their actions caused themselves or another individual to be harmed.
Case study – Volker Highways
In 2010, street light operative Joseph Parker was sent to investigate a faulty street lamp by employers, Volker Highways Ltd. When Joseph detached the reflector at the top of the lamp post, it fell on a one-year-old on the street below, who required stitches as a result of her injuries.
The incident was found by the HSE to be entirely preventable as temporary barriers should have been used to segregate pedestrians from the work area around the lamp. Volker Highways were not to blame as they had trained Joseph to carry out the work safely. By breaching Section 7(a) of the UK’s Health and Safety at Work etc. Act 1974, Joseph was fined £2,250 with costs of £2,888.
While both employer and employee have a legal responsibility to ensure the health and wellbeing of anyone affected by their work, the initial responsibility lies with the employer. Unfortunately, the majority of incidents that occur in workplaces are entirely preventable and occur due to a risk not being identified, the failure to provide a safe environment or the employee not knowing what is expected of them. In fact, according to a 2017 study carried out by A-SAFE, 58% of employees don’t even know the basic health and safety rules of the workplace.
With health and safety legislation and sentencing guidelines cracking down on safety failings, 2017 is the year to bring your A-Game with regards to Health and Safety in the workplace. The costs of creating a safe work environment and rolling out safety equipment far outweighs the costs of legal proceedings, fines and employee harm.
Please note, the material located on our site is for informational purposes only, is general in nature, and is not intended to and should not be relied upon or construed as a legal opinion or legal advice regarding any specific issue or factual circumstance.
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