Describe the occupational health and safety measures.
Health and safety related issues are one of the important issues in present time. Everybody is concerned about the health and security at work place. The employers are now under the obligation to provide proper measures relating to health and safety. In UK the rules are really strict to liable the employer under civil law as well as criminal law the proper required mechanism is not adopted. UK follows the EU directives to some extent. It is he basic duty of the employer accommodate healthy and safe environment to the employee at workplace.
Under this case study there are several issues regarding the above mentioned context.
Scenario 1: Jane acted as a teacher of the children with special need. For shortage in fund the students increased to 18 from 15. Jane applied to the head of the authority about her concern. She claimed that she can’t handle 18 students because all of them need special attention. But authority did not take any step and she got ill for this huge pressure. She had to take leave for the span of three months.
Scenario 2:
After returning from the leave Jane found that there was shortage of worker and helping assistance. Again she can’t handle the work load and got nervous attack for second time. This time she leaves the job permanently.
The main facts in issues under these circumstances are as follows:
Health and Safety at Work etc Act 1974 (Hse.gov.uk, 2015) is the main application legislation in this context. Section 2 states the general duties of the employer regarding the health and safety issues in the workplace. Section 2(1) of the said Act specified that the employer should ensure the health and safety as far as possible (Hse.gov.uk, 2015).
Section 2 (2) (a) mentioned that the employer must ensure a system of work which is health friendly. Section 2 (2) (d) specifies the provisions relating to preservation and appropriate condition of employment. Section 2 (2) (e) state the provisions relating to maintenance of pleasant working condition and environment for the employee (Hse.gov.uk, 2015).UK health and safety policy state that the management must aim to achieve good and workable condition in the work place. The policies can include reduction of occupational diseases or illness in any form like mental or physical, reduction of accidents in work place, supply high-quality working ambience, endorse psychological or physical comfort etc. Along with this the employer must provide health and safety policy statement if there are five and employee under him. The statement is the commitment of the management to provide proper health and safety.
Jane is a teacher and teaches in school of special child. These children obviously need more attention and care. So if the number of student increases then it somehow increases the burden on the teacher. It has two folded effect that it can reduce the efficiency or create a huge burden on the teacher. In this case Jane got nervous breakdown for the work load. The employer that is the Local Education Authority is liable for the negligence. According to health and safety laws of UK the employer has a duty to ensure an environment in wok place which must be health friendly for every worker. Jane requested the authority but they are ignorant, so in both the scenario the Local Authority is liable for their irresponsible activity towards the employee. According to Section 33 (1) (a) they can be liable for momentary compensation up to £20,000 or for continuing or for the second offence it can be for unlimited amount (Hse.gov.uk, 2015).
Scenario 1:
Sam was the chemistry teacher of the school. He performs different experiments in front of the student. The students are attracted with him. Now due to some mistake he did an explosion which damages his hand. The main point is that he did not wear the gloves as advices by the head teacher.
Scenario 2:
Poppy was a teaching assistant in that school. She went to Sam’s lab for learning teaching methods. At the time when Sam met the accident she started taking the class. She also faced an accident which damages his hand and face. Sam blamed himself for the damage of poppy and got a nervous breakdown.
The main fact in issues in this case was:
As mentioned in the case of Jane Section 2 of the Act was applicable in this case also. Section 2 (2) (c) specifically states that employer has the duty to give proper training to the employee (Hse.gov.uk, 2015). R v. Swan Hunter Shipbuilders Ltd and Telemeter Installations Ltd (R v. Swan Hunter Shipbuilders Ltd and Telemeter Installations Ltd, [1981]) case also supported the above mentioned statement.
Section 2 (2) (e) specifies that the employer can be held liable if do not take proper measure on the regard of health and safety. But the employers responsibility is limited if he took the reasonable and practicable care and caution.
Section 7 of the Act is specifying the general duty of the employee at his work place. Section 7(a) states that it is the duty of the employee also to take practical care and causation for this own health and safety. Along with that he also has the responsibility to the other person associate with him at the work place. Section 7 (b) (Hse.gov.uk, 2015) specifies that if any reasonable duty imposed on him by the employer he must be cooperative and take necessary step as regard to it as mentioned in Jones v. Fishwick.
In case of tort of negligence the three elements are essential. The employer must have the legal duty and he violates that duty. For the violation the employee suffers loss. This is the clause to establish a case of negligence against the employer. But the employer also has the duty to take defence of volenti non fit injuria or contributory negligence or contributory negligence or remoteness of damage. If the employer can prove that the employee know the danger and took the risk voluntarily he can escape from liability.
In this above mentioned scenarios, the Sam can raise the argument that the school authority is liable for the damage caused by him. He can claim that they had duties to promote safety measure which they violate and as a consequence of that violation Sam suffered the hand injury. But in this case the Scholl authority cannot be held liable under the Act or under aw of tort because Sam also ignorant about the safety measure. The head teacher told him to use gloves but he did not use it. The accident is not under the control of the school authority. They repeatedly told to use safety measures but if the employee is ignorant about the matter then the employer is not liable.
In case of scenario 2 the Sam has the duty to take reasonable care and caution to the co employee but when he himself was injured Poppy took the class. He did not have proper training. Sam tries to warn him but failed. In this Sam is not liable the school authority is also not liable for the accident of Poppy because they sent her to learn the teaching styles but he voluntarily took the responsibility which is outside her course of employment. So in this case school authority has not violated any duty of care. So there is no case of negligence.
Mr. James was the Supply teacher. He was injured by a bucket and broke the arm. The bucket was placed by Poppy who dislikes James. The school authority did not take any stringent action against her. They give the warning and leave her.
Retention of negligence took place when the employer was unsuccessful in removing a member of staff from the position in that time when it was obvious that the employee misusing the power or authority imposed on him or her. The employer can be held liable for the negligence if he failed to supervise the activity of the employees which can be dangerous for the others.
In this above mentioned circumstance Mr. James can claim compensation from the School authority. The wrongful act was done by Poppy. But the school authority was ignorant to take any proper action against her. The employee whose activity is became dangerous to must be removed from the position otherwise it will amount to retention of negligence. The School authority did this negligence and liable to pay compensation for the damage suffered by Mr. James. They also fail to supervise the activity of the employee so this also leads to the case of negligence.
Scenario 1: Dave was the caretaker of the school. He can carry an amount of book but according to Jane’s order he had to carry a more than his capacity. Now he got a back ache and off from work.
Scenario 2: Dave went to clean the laboratory. He was unaware of any chemicals stored there because all of them were unlevelled. The laboratory was too hot and he got a heat stroke for that unbearable heat. The problem was taken into the notice o the authority previously also that the laboratory was very suffocating and the air was not passed properly. For this suffocation Dave admitted to the hospital.
The main fact in issue is:
The Health and Safety at Work etc Act 1974 was applicable Act in this respect. Section 2 of this Act specifies the duties of the employer to its respective employee (Walters, Wadsworth and Quinlan, 2013). The employer must have some duty to take proper precaution and care regarding the health and safety of the employee. The employer must try to the extent which can justify the clause reasonable practicable as mentioned in the Act. The phase means and includes that the employer must take reasonable care to prevent and health and safety hazards of the employee. There are mainly three kinds of duties of the employer that absolute duty, practicable application and reasonable practice. The term reasonable practice was described under the purview of Edwards v. National Coal Board (Edwards v. National Coal Board, [1949]) case. This theory gets more strength from the decision of another land mark case of West Bromwich Building Society v. Townsend (West Bromwich Building Society v. Townsend, [1983]). In R v. Gateway Food markets (R v. Gateway Food markets, [1997]) case it was held that general duties mention under this act cannot be reduced or curtailed in any situation. Section 2 (2) (d) prescribe and command for preserving good working environment. Section 2 (2) (e) states that the working environment must be in workable condition that means it must in such a condition which is not create any danger to the health and safety of the worker (Rountree, 2001).
Section 33(1) (g) and (o) can provides the provision to the court that they can impose imprisonment or 2 years in case of continuing offence.
The health policies of the UK includes the provisions regarding occupational diseases or illness of any kind like psychological or physical, industrial accident in work place or supply high quality working atmosphere, sanction emotional or corporeal relieve so on. Beside this the employer must supply health and safety policy declaration if there are five and employee under him.
Health and Safety policy and the Management of Health and Safety at Work Regulations 1999 also played a vital role in this respect. Regulation 5 ensures that the employer must promote health and safety provision in regard to employees (Gibson, 2014).
In case of death of the employee the criminal statute of 1974 Act will be applicable. The provision regarding manslaughter is appropriate on hat circumstances. Davies v. HSE (Davies v. HSE, [2002]) was a land mark case where it was proved that the burden of proof shifts in case of criminal prosecution. The prosecution have to prove the guilty of the offender in the first instance then the burden shift to the offender to prove his innocence.
A European Union directive on health and safety also ensures the procedure regarding health and safety in the workplace. Directive on Management of Health and Safety at Work 1989 give a guild line regarding the issues relating to health and safety.
The main objective of the said directive is to set up methods to support development rearding safety and health procedure for workers for preventing industrial danger, defend security, physical condition, eradicate hazards and disaster factors. Along with that the purpose is to update and support discussion and guidance (Dotan and Waarden, 2002).
Directive 5 ensures that the employer must ensure the condition for health and safety in work place. Article 5 prescribes and allows the argument from the side of the employer regarding unforeseen damages (Elder and Paterson, 2006). Regulation 3 implies that the employer has the duty to make sufficient effort to asses risk and try to eradicate all of them. Regulation 3(5) declares the situation for assessment of risk in case of open exposure of chemical and like products. Regulation 6 provides for the system of health surveillance. Generally civil actions are claimed for the breach of these provisions.
In case of Commission of the EC v. United Kingdom and Northern Ireland (Commission of the EC v. United Kingdom and Northern Ireland, [2007]) it was argued that the term reasonably practicable which was given as a protection under UK law was not proposed to be obtainable under the commands given by EU regulations. But it was held that UK did not violate the principle of EU regarding health and safety because it incorporates the broad rationale of that directive.
Dave was the employee in the school and suffered serious damage during his work. The laboratory was very suffocative in nature. The school authority is liable for the loss or damage of Dave because all the relevant provision of UK state law and EU law indicate the matter that the employer will be held liable if he violates any general duty. He must take reasonable care and causation regarding the matter and the liability imposes on him to the extent of the foreseeability of the injury. In this case the bad condition of the laboratory was come to the notice of the school authority by the other teaching staff. They always made complaint about the ventilation problem in the school. The school was totally ignorant to solve the problem. So this is the violation of section 2. This injury is foreseeable by the school authority because the suffocating condition can create health problem to any of the staff. Dave can claim compensation under law of tort also. The school is negligent towards him so he can claim damages for negligence.
Both UK and EU law indicate the matter that the employer must ensure healthy environment but in this case they failed to provide workable condition and as a result of it the Dave suffers injury. Under Section 33 (1) (a), the school authority is legally responsible for momentary compensation up to £20,000 or for continuing or for the second offence it can be for unlimited amount.
Section 18 state that the provision regarding enforcement. These sections states that the duty imposes on the executive to provide sufficient arrangement for the enforcement of the provision of law. The Secretary of state gives directive to local authorities to enforce the provision of the Act. They can impose or stretch the responsibility to such extent which is permissible by the law. The duty of the local authority is to make enough arrangement for the enforceability of the provisions of the Act within the jurisdiction of their control. Along with these they have to perform the entire obligation which are imposed n them by the higher authorities. After the appointment of the inspector the matter will be investigate by him (Falconer, 1993). He will make the report accordingly and give the notice. For non compliance of prohibition notice the employer can be imprisoned for 6months for the first offence in magistrate court and for the subsequent offence it can raised up to the 2 years plus unlimited monitory condensations.
The employer and the employee have their relation regarding work and work place. There are mutual rights and liabilities of the employer and employee. The employer can be sues for the negligent activity of the employee vicariously. The employee also has the power to sue his employer for the negligent act. UK follows a variety of laws regarding health and safety at work place. EU sets up deferent directives relating to the health and safety. The employer can be liable under civil law as well as criminal laws. The procedures are very stringent in nature. It helps to reduce the occupational illness and accident. A healthy and safe work place is the most desirable thing for good work ambience and productivity in the system. The good environment in the work place promotes the good relation between employer and employee. But it is to be noted that all legislations are not apply only against the employer. Employee also has some corresponding duty towards the workplace.
References
Commission of the EC v. United Kingdom and Northern Ireland [2007]C-382/92.
Davies v. HSE [2002]EWCA Crim p.2949.
Dotan, H. and Waarden, B. (2002). Occupational health and safety in the EU member states. Utrecht: Netherlands School for Social and Economic Policy Research (AWSB).
Edwards v. National Coal Board [1949]ALL ER 1, p.743.
Elder, A. and Paterson, C. (2006). Sharps injuries in UK health care: a review of injury rates, viral transmission and potential efficacy of safety devices. Occupational Medicine, 56(8), pp.566-574.
Falconer, E. (1993). The occupational safety and health activities of UK environmental health officers—accident investigation. International Journal of Environmental Health Research, 3(3), pp.140-148.
Gibson, M. (2014). Health and safety legislation. Occupational Medicine, 64(6), pp.441-441.
Gov.uk, (2015). Health and safety at work – GOV.UK. [online] Available at: https://www.gov.uk/browse/employing-people/health-safety [Accessed 20 Apr. 2015].
Harrison, J. (2012). A future forum for UK occupational health?. Occupational Medicine, 62(8), pp.590-591.
Hse.gov.uk, (2015). Health and Safety at Work etc Act 1974 – legislation explained. [online] Available at: https://www.hse.gov.uk/legislation/hswa.htm [Accessed 20 Apr. 2015].
Kidger, P. (1992). EMPLOYEE PARTICIPATION IN OCCUPATIONAL HEALTH AND SAFETY: SHOULD UNION-APPOINTED OR ELECTED REPRESENTATIVES BE THE MODEL FOR THE UK?. Human Res Manag J, 2(4), pp.21-35.
Levinson, A. (1987). Selfâ€Âregulation and Health and Safety. Employee Relations, 9(4), pp.3-8.
Osha.europa.eu, (2015). European Directives — Safety and Health at Work – EU-OSHA. [online] Available at: https://osha.europa.eu/en/legislation/directives/directives-intro [Accessed 20 Apr. 2015].
R v. Gateway Food markets [1997]ALL ER 3, p.78.
R v. Swan Hunter Shipbuilders Ltd and Telemeter Installations Ltd [1981]IRLR p.403.
Rountree, T. (2001). Fundamentals of Occupational Safety and Health,. Health Physics, 81(5), p.592.
Venables, K. and Allender, S. (2007). Occupational health provision in UK universities. Occupational Medicine, 57(3), pp.162-168.
Walters, D., Wadsworth, E. and Quinlan, M. (2013). Analysis of the determinants of workplace occupational safety and health practice in a selection of EU Member States. Luxembourg: Publications Office.
Warmerdam, J., Katteler, H. and Hugen, F. (2007). Application of EU Directive on occupational health and safety protection of employees with temporary work contracts. Nijmegen: ITS, Radboud University Nijmegen.
West Bromwich Building Society v. Townsend [1983]IRLR p.147.
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