Road Legal

1. Health and Safety at Work Act 1974 and the Health and Safety (Offences) Act 2008

The Health and Safety at Work etc Act 1974 (HSWA 1974) is the most significant piece of legislation in the area of health and safety. It applies to everyone "at work" which includes employers, the self-employed and employees. It also protects the general public who may be affected by work activities.

The HSWA 1974 imposes  duties and responsibilities on employers, the self-employed and employees. These duties are all-encompassing and are often more specifically interpreted through detailed regulations.

The most important duties found in the HSWA 1974 are:

2. Duties on employers

Section 2 of the HSWA 1974 is a catch-all provision which states that it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. More specific requirements relate to:

• the provision and maintenance of plant and systems of work
• the use, handling, storage and transport of articles and substances
• the provision of information, instruction, training and supervision
• places of work and means of access and egress
• the working environment facilities and the welfare arrangements

Section 3 of the HSWA 1974 provides a duty on every employer to ensure so far as is reasonably practicable  that persons not in his employment, who may be affected by conduct of his undertaking, are not exposed to risks to their health or safety.

Under this section, employers therefore have a duty to contractors (and their employees), visitors, customers, members of the emergency services, neighbours, passers-by and the public at large. Individuals who are self-employed operate under a similar duty and must also take care of themselves.

These duties are qualified in the act by the principle of "so far as is reasonably practicable". In other words, it requires the risk to be weighed against the cost necessary to avert it (including time and trouble as well as financial cost). If, compared with the costs involved, the risk is small then the precautions need not be taken - such a comparison should be made before any incident has occurred!

In effect, considering what is reasonably practicable requires that a risk assessment is carried out. Neither risks nor cost remain the same forever and what is practicable or reasonably practicable will change with time - hence the need to keep risk assessments up to date.

3. Duties on individuals

Section 7 of the HSWA 1974 provides a duty on every employee, while at work, to take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions at work.

It also places a duty on employees to co-operate with their employer so far as is necessary to enable their duties to be complied with.

Under section 37 of the HSWA 1974, where an offence committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect, on the part of any director, manager, secretary or other officer of a body corporate, each may also be liable to prosecution for the same offence.

4. Enforcement

The HSWA 1974 gives powers to enforcement officers, if they are of the opinion that a provision of the HSWA 1974 is or will be contravened, to serve legal notices requiring a person or company to do or to stop doing something. The two types of notices are:

• Improvement - which states what is wrong and how to put it right within a set time.
• Prohibition - which prohibits the use of equipment/unsafe practices immediately.

The maximum fine which can be imposed by the magistrates' court is currently £20,000 for breaches of the main sections of the HSWA 1974 and health and safety related regulations. Where cases are heard by the crown court, there is no limit on the fines that can be imposed (usually only serious cases are heard by the crown court).

Duties to ensure safety therefore apply not only to employers but to drivers, those who work at depots and delivery sites and individual managers and directors. Issues such as vehicle maintenance and safety, safe driving practices, driver hours, hazardous loads, loading arrangements, fall risks and manual handling risks should always be considered.

5. The Health and Safety (Offences) Act 2008

The Health and Safety (Offences) Act 2008 (HSOA) came into force on 16 January 2008. The purpose of the HSOA 2008 was to raise the maximum penalties available to the courts in respect of health and safety offences. The HSOA raises the maximum fine which may be imposed by magistrates' courts for health and safety regulatory breaches from £5,000 to £20,000 (crown court fines remain unlimited).

The HSOA also introduced the power to imprison individuals who commit health and safety offences. This may arise in relation to employees under sections 7 and 37, as detailed above. Individual (rather than corporate) employers and the self employed are clearly also at risk.

6. Further information and guidance

For further guidance on the Health and Safety at Work etc Act 1974, see the Health & Safety Executive (HSE) publications: Health and Safety Regulations... A Short Guide and What to Expect When a Health and Safety Inspector Calls.

The HSE publication Health and Safety in Road Haulage offers more industry-specific advice.

Remember, revocation of your operator's licence is a possibility when offences come to the attention of the Traffic Commissioners.

Updated by Vikki Woodfine, a Regulatory Solicitor specialising in Transport and Health & Safety Law at DWF.
victoria.woodfine@dwf.co.uk
+44 (0)161 603 5060