POINTS OF LAW NEEDLESTICK INJURIES CONFERENCE 2006 Dr Kieran Doran P J O’Driscoll & Sons Solicitors 73 South Mall Co

1. POINTS OF LAW • NEEDLESTICK INJURIESCONFERENCE 2006 • Dr Kieran Doran • P J O’Driscoll & Sons Solicitors • 73 South Mall • Cork City

2. POINTS OF LAW: NEEDLESTICK INJURIESCONFERENCE 2006 • Safety Health and Welfare at Work Act 2005 • Law Reform Commission Report on • “Corporate Killing”

3. Safety Health and Welfare at Work Act 2005: • General Duties of the Employer: S. 8: • “Managing and Conducting of Work Activities” • In regard to design, provision and maintenance of a place of work • the employer needs to ensure that: • It is in a condition that is safe and without risk to health and safety; • It has a safe means of entry and exit from it; • It operates plant and machinery, and uses other articles and substances, • in a manner which is safe and without risk to health and safety of • employees.

4. Safety Health and Welfare at Work Act 2005: • General Duties of the Employer: S. 8: • A safe system of work; • Maintenance of proper welfare facilities; • Instruction, training and supervision to employees in regard to health and safety; • Implementation of safety, health and welfare at work measures in order to • protect the safety, health and welfare of employees; • Protective clothing and equipment for employees; • Drafting and implementation of appropriate emergency/accident plans and • procedures; • Reporting of accidents and dangerous occurrences to the Health & Safety • Authority, HSA; • Engagement of “competent person” to ensure the safety, health and welfare at • work of employees.

5. Safety Health and Welfare at Work Act 2005: • General Duties of the Employer: S. 9 • Nature of Information to be provided to employees: • An outline of the risks and hazards identified at the place of work; • Details of the relevant, protective and preventive measures to be • undertaken at the place of work; • The name of the Safety Officer and Safety Representative.

6. Safety Health and Welfare at Work Act 2005: • General Duties of the Employer: S. 10 • Instruction, Training and Supervision of Employees • That it is given in a form, manner or appropriate language, which is • likely to be understood; • That employees receive appropriate time off from work without loss • of remuneration; • That appropriate and adequate health and safety training is provided; • That in any form of supervision the employee’s capabilities are taken • into account; • That employees with specific health conditions or disease are protected • against specific dangers.

7. Safety Health and Welfare at Work Act 2005: • General Duties of the Employer: S. 10 • Instruction, Training and Supervision of Employees • Training to be given: • During the Induction Process after recruitment; • In the event of a transfer of an employer to another department, • or a change of task assigned to that employee; • Provision by the employer of new work equipment or introduction • of a new system of work; and • On the introduction of new technology by the employer/company.

8. Safety Health and Welfare at Work Act 2005: • General Duties of the Employer: S. 11 • Emergencies at Work • Every employer is obliged to: • Draw up emergency plans and procedures; • Provide appropriate safety equipment; • Instigate safety measures; • Establish appropriate contacts with emergency services, re: first-aid, • fire fighting, rescue and medical services.

9. Safety Health and Welfare at Work Act 2005: • General Duties of the Employees:S. 13 • Duties of Employee: • Complies with all statutory provisions and takes reasonable care • to protect his/her safety, health and welfare, as well as that of any • other person who may be affected by the employee’s acts or omissions; • Is not under the influence of any intoxicant while at the workplace; • Submits to any appropriate, reasonable, and proportionate medical or • other assessments if reasonably required to do so by his/her employer;

10. Safety Health and Welfare at Work Act 2005: • General Duties of the Employee: S. 13 • Duties of Employee: • Co-operates with the employer in order to comply with any • statutory provision/requirement; • Does not engage in any improper conduct that will endanger the • safety, health and welfare of themselves or any other person; • Attends any necessary safety training introduced by his/her employer;

11. Safety Health and Welfare at Work Act 2005: • General Duties of the Employees: S. 13 • Duties of Employee: • Makes appropriate use of any article or substance provided for • the protection of his/her safety, health and welfare at work, including • personal protective equipment, having regard to the training and • instructions given by his/her employer; and • Reports to the employer the details of any defect in the place or • system of work, including personal protective equipment, or • contravention of a statutory provision of which the employee is, or • becomes, aware of.

12. Safety Health and Welfare at Work Act 2005: • Protective and Preventive Measures: S. 20 • Safety Statement • An employer is obliged to have in place a Safety Statement that specifies: • The hazards identified and risks assessed; • The preventive and protective measures as well as resources provided for • protecting health and safety at work; • 3. The duties of employees, including the obligation to co-operate with the • employer and any other person who has responsibility for health and safety; • 4. The identification of all personnel, including job title or position, engaged • in tasks pursuant to the Safety Statement; and • 5. The arrangements as regards the appointment of Safety Representatives • and the consultation process to be undertaken with the employees, through the Safety Representatives, e.g. the formation and operation of the Safety Committee.

13. Safety Health and Welfare at Work Act 2005: • Safety Representation: S.25 • Safety Representative • The role of the Safety Representative consists of: • Investigation of accidents and dangerous occurrences at work; • Investigation of complaints by employees as to safety, health and welfare at work; • Accompanying an Inspector from the Health and Safety Authority, either on a • general tour of the workplace, or in the aftermath of an accident or • dangerous occurrence; • Making oral and written representations to employers or HSA Inspectors in regard • to matters of health and safety, including the investigation of accidents and • dangerous occurrences; and • Receiving advice and information from Inspectors on issues of general health • and safety at work, as well as to both consult and liaise with other Safety • Representatives.

14. The Legal Concept of “Corporate Killing”:Proposals of Law Reform Commission Under S.8 of the 2005 Act there is an extensive duty of care placed on the employer to protect employees, for example providing a safe place of work, and a safety system of work. It has been proposed by the Law Reform Commission to introduce the concept of “Corporate Killing” into Irish Law.

15. The Legal Concept of Corporate Killing:Law Reform Commission Consultation Paper • The Law Reform Commission published a Consultation • Paper in October 2003 which recommended the • introduction of the new offence of “Corporate Killing”. • The main recommendations of the Commission were: • The proposed offence of “Corporate Killing” would apply • where death is caused by the gross recklessness of an organisation • which created a serious risk of causing substantial injury; and • 2. The offence would be committed by an organisation based • on the acts and/or omissions of a senior manager, i.e. • “High Managerial Agent”

16. The Legal Concept of Corporate Killing:Law Reform Commission Consultation Paper 3.The offence would be prosecuted only on indictment and would carry an unlimited fine. The Commission considers that this would reflect the gravity of the proposed offence; 4. If an organisation showed that it had taken all reasonable precautions to prevent the offence being committed, it would have a valid defence. Thus, an organisation with active prevention policies should not necessarily be held responsible for the actions of a maverick director or manager; 5. The offence would apply to “Undertakings”. This would include companies (both private and publicly quoted), public bodies (such as government agencies and local authorities), and unincorporated bodies, (such as not-for-profit entities, charities and partnerships);

17. The Legal Concept of Corporate Killing:Law Reform Commission Consultation Paper 6. Where an undertaking is has been convicted of the proposed offence of “Corporate Killing”, senior directors and managers who are found to have acted with a reckless disregard for the safety of a person, can also be prosecuted personally for aterm in prison of up to five years and/or a fine, together with the possible disqualification from acting as a manager in an undertaking; 7. On conviction, the Court would have power to make a number of orders including that the undertaking would make improvements so that recurrences would be prevented, that community service work would be undertaken, and that the organisation/undertaking would have to make public the fact of its conviction.

18. The Legal Concept of Corporate Killing:Law Reform Commission Report • The Law Reform Commission Report into Corporate • Killing in October 2005 recommended the introduction • into Irish Law of the following offences: • Corporate Manslaughter • Grossly Negligent Management Causing Death

19. Thank you. Dr Kieran Doran P J O’ Driscoll & Sons Solicitors 73 South Mall Cork City (021) 4354765 kieran.doran@pjodriscoll.ie