The introduction of the 1974 Health and Safety at Work Etc, Act aimed to create conditions to enable more effective self-regulation by employers and employees jointly. It sought to achieve a balance between regulatory and voluntary health and safety at work provision. The introduction of the Act therefore, aimed to secure the health safety and welfare of individuals at work and to protect individuals, other than those at work, against risks to their health and safety arising from workplace operations.
Thus extending protection to the general public. Part two of the Act looks at the general duties of employers to their employees and imposes employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. The phrase 'so far as is reasonably practicable' has been used in law previous to the Health and Safety at Work Etc, Act 1974.
Lord Asquith (1949) defined the phrase as " to imply that a computation must be made by the owner in which the quantum risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risks (whether in money, time or trouble) is placed on the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them". The employer's duty to do what is reasonably practicable is similar to the duty to take reasonable care in the tort of negligence (Kloss 1998).
One difference is that Section 40 of the Health and safety at Work Act 1974 provides that it is for the defendant to prove that it was not reasonably practicable to do more than he did, whereas the burden of proof in civil law is on the plaintiff to show that the defendant was negligent. The Health and safety at Work Etc, Act 1974 applies to all circumstances, situations and premises where work is undertaken. With Section 52(1), of the Act clearly stating that the phrase 'at work', and the word 'work' itself, apply to all situations where a person is either employed or self-employed.
The legislation also provides for employee's health and safety when they are undertaking their employment duties regardless of where they are working. The employer is also obliged to provide and maintain as for as is reasonably practicable safe plant and equipment which extends to work done away from the employer's premises if the employer can be reasonable expected to have control over it (Kloss 1998). In this way the act applies for example to catering staff as long as they are undertaking employment duties, and, in the words of the legislation, are 'at work'.
It can be seen from the scenario that several breaches of the Health and Safety at Work Etc, Act 1974 have occurred. The caterers were engaged to provide refreshments using their own mobile equipment. The caterer therefore has a duty to it's own employees to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees (Section 2(1)). The employees to which this applies are the catering manager, the employed cook and the waitressing staff as identified in the scenario.
Under section 3(1) it is the employer's duty, in this case the catering company, to conduct his undertaking in a way as to ensure, in so far as is reasonably practicable, that persons not in his employment, who may be affected, are not exposed to risks to their health and safety (Ritson 1983). The employer must also give prescribed information, to those not employed by him about the way in which he conducts his undertaking that might affect their health and safety (Section 3 (3)), these sections within section 3 of the general duties apply to the volunteer cook who does not appear to be directly employed by the company.
The cook was injured by a faulty water heater that was shaken loose during the travels in the vehicle. This is in breach of section 2(2)(a), 2(2)(b), 2(2)(c), and 2(2)(e). Under section 2(2)(a) the employer has a duty to provide and maintain plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health. The water heater was not safe in that it had shaken loose during transportation (breach of section 2(2)(b)) and injured the cook.
It could be assumed that, as equipment was not checked prior to use that section 2(2)(c) was also breached in that information, instruction, training and supervision were not given. The working environment must be maintained so that it is safe and without risks to health (Section 2(2)(e)) and the mobile catering facility was clearly in breach of this. The faulty water heater was replaced by the catering manager who may or may not have been qualified to do so.
However the fact remains that the water heater was faulty due to a manufacturing defect and was in breach of section 6(1)(a), 6(1)(b) and 6(1)(c), whereby any person who designs, manufactures and supplies articles for use at work must ensure, so far as is reasonably practicable, that the article is designed and constructed so that it is safe and without risks to health when properly used (Section 6(1)(a)).
The manufacturer must also arrange testing and examination to be carried out (Section 6(1)(b)) and to ensure that there is adequate information available regarding the use for which the article has been designed and tested, and the conditions necessary to ensure that the article when put to the correct use remains safe (Section 6(1)(c)). It would appear that the manufacturer is in breach for not testing the water heater supplied which would have identified any defects.
However the water heater was installed by the catering manager and he breached section 6(3) in that it is the duty of any person who erects or installs articles for use at work, in any premises where the article is going to be used by persons at work to ensure; so far as is reasonably practicable, that nothing in the way in which it is erected or installed makes it unsafe or a risk to health when properly used.
Whilst the catering manager may have followed installation instructions it could be argued that it is reasonably foreseeable that if a joint was not tightened completely then hot water may escape with the potential to scald an individual. The catering manager who is also an employee of the company, also has duties under Section 7(a) in that every employee whilst at work must take reasonable care for the health and safety of himself and others who may be affected by his acts or omissions at work.
By this virtue, under section 4(1)(b) the catering company has a duty to the volunteer cook who is not an employee, but is using non-domestic premises made available to her as a place of work where she is using plant or equipment provided for her use. Previous case law (Bolton MBC v. Malrod Installations 1993) has found that there is a duty to ensure that plant installed is safe when an employee comes to use it for the purpose for which it is intended.
Where an employer provides defective equipment to his employees for use in the course of the employer's business and the employee is injured he can sue the employer, whether or not the employer has been negligent, as long as there has been a fault on the part of a third party, usually the manufacturer of the equipment (Kloss 1998). The waitress injured her ankle when stepping into a pothole in the ground on which the bus was stationed.
This act is a breach of Section 2(2)(d) and 2(2)(e) in that, so far as is reasonably practicable, any place of work under the employer's control must be maintained in a condition that is safe and without risks to health, and must maintain a means of access and egress that are safe and without risk (Section 2(2)(d)). This provision has overtones of Section 2(1)(2) Occupiers' Liability Act 1957 under which occupiers have the duty to 'take such care as in all the circumstances of the case is reasonable for the safety of all lawful visitors to the premises'.
However, the liability under The Occupiers' Liability Act 1957 is only in respect of buildings and land and anything permanently fixed thereto. Therefore under the Occupiers' Liability Act 1957 the Crusty Loaf Bakery Company and not the catering company could be held liable for the waitress's injury. The combined effect of The Health and Safety at Work etc Act 1974 and the Occupiers' Liability Act of 1957, is to create criminal liability upon an employing authority in respect of unsafe premises by virtue of the 1974 Act and civil liability in the same circumstances under the Occupiers' Liability Act 1957.
However, it needs to be noted that civil liability under the 1957 Act is more extensive than the criminal liability (Ritson 1983). However the employer must also provide and maintain a working environment that is safe and without risks, so far as is reasonably practicable (Section 2(2)(e)). Conversely the employee also has duties under Section 7(a) in that every employee whilst at work must take reasonable care for the health and safety of himself and others who may be affected by his acts or omissions at work.
This duty emphasises the key principle of the Health and Safety at Work Act 1974, which is that safety at work is everyone's business, and not just the employer's duty. If an employee is injured at work, any subsequent claim for compensation will take into account the extent to which the claimant's own acts or omissions, if any, contributed to the accident causing injury. The waitress therefore had a duty to herself to be mindful of the general condition of the floor when going about her work.
Under Section 37 the personal responsibilities of managers, directors and others in authority are laid out. Simply put, if a company commits a health and safety offence, and the blame for the breach, or the cause of it is found to be the director or as in this scenario the manager, the individual concerned may be indicted, whether or not proceedings are taken against the company. As has been demonstrated the catering company made several breaches of the health and Safety at Work Etc Act, 1974.
The catering company appear to set about the supply of refreshments at an event without any due regard for the health and safety of it's own employees and others who may be affected by their acts or omissions. It would appear that safe systems of work were not engaged regarding checking and assessing of equipment prior to commencement of use, which may or may not have partially been due to a lack of supervision and training. It would also appear that the maintenance of both the equipment and the site in general including the maintenance of safe access and egress were totally disregarded.