Nick Wilson, Director of Health & Safety Services at Ellis Whittam, gives an overview of an employer’s general duties toward protecting the health, safety and welfare of your employees and anyone else who might be affected by your work.
The general duties you owe your employees and others are set out in the Health & Safety at Work etc. Act (HSWA) 1974.
These duties are qualified by the words “so far as is reasonably practicable”. Essentially this means you don’t have to take steps to avoid or reduce a Health & Safety risk if either the:
- steps are technically impossible, or
- the time, trouble or cost of taking them would be grossly disproportionate to or far outweigh the risk.
The HSWA acts as something of a “skeleton” for other Health & Safety regulations including the Management of Health & Safety at Work Regulations (MHSWR) 1999.
The MHSWR make clearer what you are required to do in managing your organisation’s Health & Safety risks. As with the HSWA the MHSWR apply to all work activities.
Main duties as an employer
Under the HSWA and MHSWR you must do the following:
- So far as is reasonably practicable ensure the health, safety and welfare of your employees and anyone else affected by your work
- Carry out an assessment of the Health & Safety risks to your employees and others. When necessary you should review the risks.
- Effectively plan, organise, control, monitor and review your preventive and protective measures.
- Appoint someone “competent” to make sure you comply with Health & Safety law. They must have “sufficient training and experience or knowledge or other qualities”.
- Provide your employees with clear Health & Safety information and training including the risks and steps you’ve taken to control risks.
If you have 5 or more employees, you have some additional duties:
- Record the risk assessment’s significant findings including any employee group identified as especially at risk.
- Prepare a written Health & Safety policy. This must be regularly reviewed and describe your arrangements. You must bring it to the attention of your employees.
- Record your arrangements for effectively planning, organising, controlling, monitoring and reviewing the preventive and protective Health & Safety measures.
The duty placed on you is a significant one but it is subject to a “narrow” defence of what’s reasonably practicable…
The courts have interpreted the words “so far as is reasonably practicable” to mean the money and effort needed to put in place safety measures should not be grossly disproportionate to or far outweigh the benefits.
In other words, you’re not expected to completely remove all workplace risks where it’s financially unreasonable or technically impossible to do so.
You must assess the level of risk, what can be done and what’s reasonable for you to do. What is reasonably practicable for a large organisation employing specialist Health & Safety advisers may also be quite different to what’s expected of a small one with limited resources.
In the 1999 case of R. v Nelson Group Services (Maintenance) Ltd the Court of Appeal said employers must show they did everything reasonably practicable to make sure:
- workers have the necessary skill and instruction
- safe systems of work are in place
- there is adequate supervision
- safe plant and equipment is provided.
Further information on the thorny question of what’s reasonably practicable can be found here.
It is a criminal offence to breach the obligations contained in the HSWA and MHSWAR and you may be prosecuted if you fail to properly carry out your duties.