Health and Safety at Work Act 1974 - Essay Example

? Section 37 of the Health and Safety at Work Act 1974 Introduction Health and Safety at Work Act 1974 is regarded as an urgent health and safety legislation piece. This piece of legislation covers the United Kingdom's occupational health and safety sectors. The HSWA 1974 places its general duties on employers, employees, manufacturers, and people in control of premises. The framework for subsequent health and safety regulations is built by these general duties. The Act also does the establishment of the Health & Safety Commission and Executive. The HSWA 1974 is divided into four key parts, and it is also divided into various sections. Part one of the Act focuses on the Health &Safety Commission and Executive, the general duties of the act, enforcement and penalties, codes of practice, and the power of making regulations. The second part of the act deals with the establishment of the employment medical advisory service. Part three on the other hand does the relations of the act to the building regulations. Finally, the forth part of the act does the coverage of other general issues and various amendments (Bennett 2012, p. 102).The 37th section of this legislation covers prosecution of managers/ directors, which is the main focus of this essay. The essay seeks to discuss the development of section 37 of the legislation analyzing the circumstance under which it operates. It also seeks to take considerations if the use of the legislation gives an effective mechanism for imposing secondary liability. Section 37(1) of the 1974 Act gives directives for the prosecution of managers/ directors. Section 37 of the HSWA States that in case a health and safety harm occurs to employees with the consent or connivance of a manager or director, then the manager or director together with the organization should be prosecuted under this particular section of the HSWA Act (Lofstedt 2011, p. 73). The section directs that employers should ensure that the safety and health of their employees is not affected by the work they do. Once the workers are affected by the kind of work they do in an industry in terms of their health and safety, then the act stipulates that the managers or directors be prosecuted. The act also tends to cover the employees’ duties at the work place. Employees in their duties at the work place are expected to take much care for good of their own safety and health and that of others who may be at risk of being affected by their acts. Employees are also expected to co-operate with their employers and other people at their work places when they are carrying out their statutory obligations (Lofstedt 2011, p. 73). The Health and Safety at Work act of 1974 provides that every organization or industry should have clearly stipulated health and safety policy if it has employed five and above employees. The organizations are also required to carry out assessments on their workers, partners, customers, and any other individual who may be at risk of being affected by the activities carried out by the organizations. The act also requires the organizations to have full access to health and safety advice that is competent. This is for the protection of its people or the staff members who may be affected by the activities carried out by the organization in terms of health and safety (Lofstedt 2011, p. 73). The HSWA act works alongside other regulations and Legislations in protection of health and safety of the workers. The Factories Act of 1961 and the Offices, Shops and Railway Premises Act of 1963 are examples of Legislations that work alongside the HSWA act of 1974. Control of Substances Hazardous to Health Regulations of 1994, and the Health and Safety Regulations of 1992 are among the regulations that are operated together with the HSWA act of 1974 (Smith, 1998). In its other provisions, the act requires that employers have a working environment that is safe in operation and maintenance to avoid any harm related to health and safety of the employees. The act also requires employers to provide adequate training to their employees so that health and safety knowledge may be passed across the workers. Apart from the above requirements of the act, employers also need to address the issue of safer ways of handling and storage of dangerous machinery or chemicals that may be harmful to the health and safety of the employees. According to the health and safety statistics provided by the health and safety sector of the United Kingdom government, workers in various working places suffer from safety and health offences committed by their employers. For the year 2010/2011, it was recorded that 200,000 workers reported cases of injuries three days after they were injured, 1.2 million workers suffer from illnesses that are work related, 26.4 million days of working were lost because of the absence of workers who were suffering from illnesses that are related to work, 175 workers died at work due to work related accidents, and 115,000 workers were reported to have sustained injuries related to workplace accidents (Smith 1998, p. 91).. The development of Health and Safety at Work Act of 197 was triggered by lack of individual liability in the existing legislations related to health and safety at the work place in the United Kingdom (Smith 1998, p. 6). These legislations were not in the position to prosecute managers and senior directors of the organizations who used their powers to commit offenses that affected the health and safety of their employees at the work place. The government of the United Kingdom felt that it was necessary to come up with legislation that would prosecute individual managers and directors in case their employees’ health and safety at the work place is affected by activities approved by the managers. The existing health and safety related legislations mainly focused on prosecuting the organizations in which the employees were working rather than making the managers liable for their own offences. This encouraged majority of managers and directors of organizations to frustrate the safety and health of their workers knowing that incase anything happens to the workers, the organization would be made liable by the existing legislations. This prompted the United Kingdom’s government to set a committee in 1970, chaired by Lord Roben to address this particular issue. The HSWA of 1974 was developed from the Robens Report of 1972. Before the enactment of the HSWA in 1974, industrial safety in the United Kingdom was primarily based on the parliamentary Legislations. In 1970, the government of the United Kingdom decided to come up with a committee chaired by Lord Robens in order to address the grievances of the workers (Smith 1998, p. 4). This is because despite the presence of parliamentary Legislations aimed to cover their safety at work, workers in the United Kingdom continued suffering since they were not fully covered. It was from the recommendations set out by the Robens report that contributed to the formation of Health and Safety at Work Act 1974 (Smith 1998, p. 4). The Robens report was officially published in 1972. The main conclusion of the report was that there was the need of coming up with a more effective self regulating system to take care of health and safety of workers in various industries in the United Kingdom(Smith 1998, p. 2). By the establishment of a self regulating system, the report concluded that there would be a need for accountability and responsibility at all levels within an industry that protects the health and safety of the workers. The conclusion of the Robens report also suggested that there should be better safety organization systems that involve workers in an industry as a management initiative Managers are not able to avoid any charge of neglect under the 37th section of the HSWA Act of 1974 as confirmed by the recent law case. Managers who are found guilty are normally liable for imprisonment or fines based on the weight of the offences they have made. In addition to section 37 of Health and Safety Work Act 1974, the 1st clause of section 2 of the Company Directors Disqualification Act of 1986 provides powers to the courts to disqualify any individual who has been convicted with an offence related to mismanagement of a company (Smith 1998, p. 3). The offences include the safety and health offences that affect the well being of the workers. The power given to the courts by this particular act does not need any form of evidence or investigation. There have been recent reviews on the health and safety system in the United Kingdom. The reviews include Lord Young of Graffham, the House of Commons Work and Pension Select Committee, and the better Regulation Executive. Reports that were written from the conclusions and recommendations of the reviews covered broad area related to section 37 of Health and Safety at Work act of 1974. The reviews were aimed at giving more details on the examination of health and safety legislation (Parliamentary Committee 2008, p 72). Majority of senior managers and directors of various organizations should be able to know the relevance of implementing the HSWA of 1974 in their respective organizations, for the appropriate health and safety of themselves and that of their workers. Most of the managers and directors do not know the importance of applying the provisions of the legislation hence the Health and Safety Executive find it so easy to prosecute them. For example, in the sector of industrial engineering, HSE has significantly targeted the top officials of organizations related to the sector (Lofstedt, 2011, p. 73). The main debate of the Work and Pensions Select Committee was on the role of Health and Safety Executive, and the Health and Safety Commission in the regulation of the safety and health at the work place. In the United Kingdom, two departments for Work and Pensions include Health and Safety Committee and the HSE which are responsible for safety and health systems. The debate indicated that the two departments should be merged, and their headquarters be moved to Merseyside in Bootle. The debate argued that the legal framework that governs the health and safety at the workplace is proportionate though some employers can be extremely cautious when interpreting the provisions of the act due to some absence of legal clarity (Lofstedt 2011, p. 84). During the debate on the role of Health and Safety Executive and the Health and Safety Commission, a number of witnesses who valued the framework of the legislation pointed out that the framework of the legislation was stretched beyond its original aim. The original aim of the legislation was to regulate the health and safety of individuals at their workplaces though it was covering issues related to the safety of the public. During the debate, the head of Organization and Services, Mr. Tom Wilson argued that he believed that the act protected the health and safety of the workers at work places and of the people involved in the work activities (Smith 1998, p. 83). The committee concluded that the role of Health and Safety Executive has actually expanded beyond its initial and original role. The committee argued that the Health and Safety Executive engaged in the regulation of the public health and safety issues apart from protecting the health and safety welfare of workers in their respective places of work. The committee asked for a clarification from the government of the United Kingdom on its strategy towards the safety of the public. The committee also sought to get it from the government how the funding for the regulation of the strategy should be allocated (Parliamentary Committee 2008, p. 73). Another main area of debate of the Work and Pensions Select Committee included the fines of health and safety offences committed by various employers to their employees. It was argued in the committee that currently, the levels of fines given to the health and safety offenders are a bit lower than it is expected. It was argued that the fines be revised in order to provide justice to employees who are the victims. The committee argued that the low levels of fines for safety and health offences at workplaces discourages employers from complying fully to their obligations of taking care of the safety and health of their staff members. It was recommended by the committee that there should be more severe punishments to those employers who fail to comply fully with their obligations of taking care of health and safety of their employees (Lofstedt 2011, p. 76). Employees’ taking full responsibility at their respective workplaces for their safety and health was another key area of debate in the committee. It was argued in the committee that employees should abide by the provisions of the HSWA of 1974 and take full responsibility of their own safety and health in their workplace (Lofstedt 2011, p. 77). For this to be achieved, it was discussed that employees should participate in non-unionised workforces. It was debated that the Health and Safety Executive should allow and promote workers to take part in health and safety programs. Proportionality of the legislation was another significant area of debate at Work and Pensions Select Committee. The legal experts, union members, and the business community reached a consensus that the relevance of health and safety law has been intact over thirty years since its introduction. The structure of the law was praised by Chris Jackson because of the incorporation of general duties for employers to their employees regarding health and safety at the work place. In this debate, Chris was seconded by the head of health and safety at CBI, Dr. Janet Asherson though she felt that the framework was quite complex (Lofstedt 2011, p. 72). When endorsing the existing health and safety framework at the committee, witnesses raised concerns regarding the application of the act due to its complexity. Richard Diment of the FMB argued that the application of the legislation can be a hard nut to crack for the Small and Medium Enterprises. He argued that members of the Federation of Master Builders were struggling to cope with the provisions of the legislation (Paliamentry Committee 2008, p 3). His sentiments were seconded by the Federation of Small Businesses that the regulatory of health and safety legislation was a burden to them; hence they needed access to advice regarding the implementation of the legislation On discussing the proportionality of the legislation, the Work and Pensions Select Committee was convinced that the HSWA of 1974 is a proportionate act though it was quite hard for the Small and Medium Enterprises to understand and fully implement the legislation. Under the proportionality of the legislation are of debate at the committee, the Health and Safety Executive was commended for its effort to reduce the administrative burden on businesses (Harrison 2012, p. 73). Corporate Manslaughter and Corporate Homicide Act of 2007 was another key area of debate at the committee. During the 2005-2006 sessions of the Work and Pensions Select Committee, a report on the draft of the Corporate Manslaughter Bill was published in collaboration with the Home Affairs Committee. The act introduced new offence which would work along the offence stipulated by section 37 of Health and Safety at Work act of 1974(Harrison, 2012, p. 45). The new offence introduced by the act states that an organization can be prosecuted if there is a continuous gross failure in management of safety and health of its workers and other individuals who are affected by the activities carried out by the organization. The act provided for the courts to look at the management systems of various organizations in terms of health and safety. Under the act, when considering the liability of a certain organization, the court is ought to consider any kind of breaches of health and safety legislation. Over the past four years, most organizations have faced the wrath of police investigations due to the Corporate Manslaughter Act. The police investigations in these organizations under this piece of legislation should be able to consider the position of the senior managers and directors and their involvement in the health and safety offences at their respective organizations. The police do this by interviewing the staff members of the organizations then giving out the information to the Health and Safety Executive who then identifies who to prosecute under section 37 of the HSWA of 1974 (Bennett 2012, p. 34) Conclusion In conclusion, as discussed in the previous paragraphs, the Health and Safety at Work act of 1974 is of considerable benefit to the employees of various industries across the United Kingdom because it protects their health and safety at the work place against their employers. It plays a vital role in the health and safety at the work place hence it is the principal piece of health and safety legislation in the United Kingdom. The act places a duty on all employers to take the health and safety of their employees with considerable importance. The act also needs the employers in the industries in the United Kingdom to have written and revised records of health and safety policy that protects the well being of their employees. Bibliography Bennett, A., 2012. There’s always one - The HSE’s targeting of senior managers and directors . Retrieved November 14, 2012, from Eversheds International: http://www.eversheds.com/global/en/what/articles/index.page?ArticleID=en/Industrial_e ngineering/Theres_always_one_HSE_targeting_150212 Parliamentary Committee., 2008. Select Committee on Work and Pensions Third Report. Retrieved November 14, 2012, from Parliamentary Business: http://www.publications.parliament.uk/pa/cm200708/cmselect/cmworpen/246/24606.htm Harrison, P., 2012. Health & Safety At Work. Retrieved November 14, 2012, from Compact Law: http://www.compactlaw.co.uk/free-legal-articles/health-and-safety-at-work.html Lofstedt, R., 2011. Reclaiming health and safety for all: An independent review of health and safety legislation, Crown, London Smith, T., 1998. An examination of Health and Safety law 25 years after the Robens Report with particular emphasis , Oxford Press, London Read More