HEALTH & SAFETY @ LITTLE FRANCE HEALTH & SAFETY LAW

1. HEALTH & SAFETY @ LITTLE FRANCE HEALTH & SAFETY LAW Welcome to an on-line health and safety awareness package intended for staff and students working within UofE buildings on the Little France/Bioquarter campus who may be interested in learning more about UK law as it relates to health and safety at work.

2. HEALTH & SAFETY @ LITTLE FRANCE HEALTH & SAFETY LAW The material contained in this presentation is not fully comprehensive, nor necessarily always completely up-to-date, since law is a complex subject (fairly superficially summarised in this presentation) and laws do change. If definitive information is required, please contact the Little France Buildings H&S Manager, the contact details for whom are shown on the last pages of this presentation - Thank you. Information contained within these pages is intended for use by University of Edinburgh staff and students only

3. Health & Safety Law Last updated: January, 2018

4. UK Law It may help at the outset to know the meaning of the following terms: • Common Law and Case Law • Statute Law • Civil Law • Criminal Law • Acts, Regulations, Orders, ACoPs* and Guidance Notes (GNs) * Approved Codes of Practice

5. Common Law and Statute Law Common Law • Unwritten law dealing with conduct between people, not dealt with by Acts of Parliament • Judgements create precedent for other Judges to follow (recorded in Law Reports) • Deals with the balance of probabilities (51+% certainty) • Outcome is in the form of a remedy or compensation • Includes negligence, liability, and duty of care, and involves defences • This ‘Case Law’ gives rise to Civil Law Statute Law • Acts of Parliament and related Regulations • Imposes legal duties, which may be absolute, practicable, or reasonably practicable • Failure to comply is an offence in Criminal Law and may give rise to criminal liability and penalties • Deals with reasonable doubt (~98+% certainty that a decision is beyond reasonable doubt) • Gives rise to Criminal Law

6. Civil Law and Criminal Law (1) Civil Law • Based on Common Law • Regulates relationships between legal persons (individuals and corporations) • Proceedings started by one of two or more parties, who may settle at any time • Civil court may consider disputes arising out of property rights, employment, family, etc • Court may compensatefor wrongs Criminal Law • Based on Statute Law • Regulates conduct considered by the State to be prejudicial to the community • Proceedings instituted by officers of the Crown • Court decides on guilt or innocence • Principal object is to punishthe guilty

7. Civil Law and Criminal Law (2) Civil Law • Judgements escalate from lowest level of Sheriff Court in Scotland (Small Claims Court in England and Wales) to Court of Session (County Court or High Court in England and Wales), with possible leave to appeal to a Court of Appeal (a panel of Judges), and conceivably to UK’s Supreme Court or even the European Courts, for the judgement of a lower court to be overruled. Criminal Law • Judgements escalate from lowest level of Sheriff or District Court in Scotland (Magistrate’s Court in England and Wales) to High Court of Justiciary (Crown Court in England and Wales), with possible leave to appeal to a Court of Appeal (a panel of Judges), and conceivably to UK’s Supreme Court or even the European Courts, for the judgement of a lower court to be overruled.

8. Civil Law and Criminal Law (3) Civil Law • Liability insurance surveys and reports • Claims investigations • H&S management audits • Compliance audit programme • May inform changes to H&S policies • Breach of civil duty is insurable Criminal Law • Health and Safety at Work etc Act 1974 is Statute Law (i.e. Criminal Law) • H&S@WA supports delegated legislation (e.g. Management of Health and Safety at Work Regulations 1999) • H&S@WA sets out duties for employers and employees • H&S@WA empowers Health and Safety Executive (HSE) • Breach of statute law is not insurable

9. Civil Law and Negligence Under civil law, an individual who has been injured may sue for Damages that he or she claims were caused by the Negligence of another person. But to prove negligence, the injured person has to establish (on the Balance of Probability) that: • he or she was owed a Duty of Care by the other person; • there was a Breach of that duty; and • that there was Damage and it resulted from that breach of duty of care.

10. Negligence and Duty of Care The duty is, in effect, a legal obligation imposed on an individual, requiring that he or she adheres to a standard of Reasonable Care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action claiming Negligence.

11. Contributory Negligence and Proportional Judgement Courts will make an assessment of the extent to which blame may be apportioned between the person being sued (the Defendant) injured party (the Claimant), and to what extent there may have been Contributory Negligence on the part of the claimant; this may bear on the amount of compensation ultimately awarded (Proportional Judgement).

12. Negligence and Vicarious Liability Where, through Negligence, an employee causes Damage while at work (including work being done away from the employer’s normal base of operations), it is the employer who remains accountable in law for his or her employee’s actions, and it is the employer who may be expected to pay Compensation to an injured party. If the damage was caused because the employee disregarded his or her employer’s instructions, the employee may be subject to disciplinary measures taken by his or her employer, but it it is the employer who remains Vicariously Liable for damages caused by his or her employee.

13. European Law Commission of the European Communities EC Directives Transposition National law in member states

14. European Law BREXIT? Best advice regarding the future of H&S legislation in the UK seems to be that there is unlikely to be any dramatic changes, not least if we remain within EFTA and the EEA.

15. UK (Statute) Law Drafting by Ministers and Civil Servants Publication of a White Paper or Bill followed by First Reading and debate After amendment, Second Reading and debate in the House of Commons Detailed discussion in Committee Stage Report to House of Commons Third Reading in the House of Commons (then passed to the House of Lords for further debate and possible revisions) Final Adoption by House of Commons Presented to the Monarch for Royal Assent Becomes Statute Law in the UK

16. UK (Statute) Law • Acts Primary or principal legislation with enabling provisions (e.g. Health and Safety at Work etc Act 1974) • Regulations Delegated legislation (e.g. Control of Substances Hazardous to Health Regulations 2002) • Orders (e.g.Commencement Orders bringing Acts into force) • Approved Codes of Practice (ACoPs) (e.g. ACoP for COSHH Regs) • Guidance Notes (e.g. HSE HSG and GN series)

17. Scottish Law As may have become apparent already, Scotland has a different legal system from England and Wales. While the Health & Safety at Work etc Act 1974, and related Regulations, apply equally in Scotland, there are differences in the Court system, which may become apparent in the event of a prosecution.

18. Scottish Law High Court of Justiciary Court of Session Criminal cases Sheriff Court Civil cases District Court

19. Scottish Law • Sheriff Court Tries criminal cases (Summary and Solemn) and civil actions, and conducts fatal accident enquiries. • Court of Session Based in Edinburgh. Tries civil actions at a higher level that Sheriff Courts. • High Court of Justiciary Located in Edinburgh and Glasgow, and also on circuit. Tries criminal prosecutions (Summary and Solemn) at a higher level than Sheriff Courts.

20. Scottish Law • Summary Procedure Outcome decided by a Sheriff (in a Sheriff Court) or a bench of one or more lay Justices (in a District Court), in the absence of a jury. • Solemn Procedure Involves a jury of (in Scotland) fifteen people. The Judge or Sheriff decides questions of law, and the jury decide questions of fact; in a summary procedure, the Judge, Sheriff or Justice(s) decide both.

21. Scottish Law • And, unique to Scottish Law, there are not just two possible outcomes from a trial, but three: • Guilty • Not Guilty • or • Not Proven • A simple majority verdict (even • eight to seven of the fifteen-strong • jury) will suffice to secure a • conviction.

22. Scottish Law Another difference that might be worth highlighting relates to Civil Wrongs and the concept of Negligence. In England and Wales a civil wrong is described as a Tort, whereas in Scotland it is a Delict. Either way, individuals (Pursuers) may use the Common Law on negligence to bring a civil action for compensation following injury (e.g. by an employee against an employer – the Defender - following an injury at work).

23. Scottish Law The Crown Office and Procurator Fiscal Service is responsible for the investigation and prosecution of crime in Scotland. A special unit of the Procurator Fiscal Service exists to investigate and (potentially) prosecute some offences related to health and safety.

24. Scottish Law In extreme cases, a Fatal Accident Inquiry may be convened under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. A FAI, in any event, must be held in all cases of death arising from an accident at work. The purpose of the Inquiry is not to apportion blame, but to establish facts.

25. Scottish Law Specifically, a FAI is set up to determine: • Where and when the death took place; • The cause of death; • Reasonable precautions whereby the death might have been avoided; • Factors which may have contributed to the death; and • Any other facts relevant to the circumstances of the death.

26. Acts • Statute law • E.g. H&S@WA 1974 • Debated and made in Parliament • Primary Legislation, which may represent a framework for secondary legislation and Regulations • Impose Legal Duties on employers etc. • Failure to comply may give rise to Criminal Liability

27. Regulations • Statutory instruments • E.g. Ionising Radiation Regulations 1999 • Subordinate to, or delegated from, an Act • Section 15 of H&S@WA 1974 enable Regulations to be made • Power is contained in the Act • But Regulations set out the details • Though they made be difficult to understand, so read also the ACOPs …

28. Approved Codes of Practice (ACoPs) • Issued by Health and Safety Executive (HSE). • Provides practical guidance beyond what is set out in the relevant Regulations, and in terms that are more easy for workers to understand. • Not legally binding in themselves, but they may be applied by a Court of Law as a minimum standard that should perhaps have been applied by an employer.

29. Guidance Notes (GNs) • Issued by Health and Safety Executive (HSE). • Represent HSE’s opinion of good practice. • Not legally binding in themselves, but they may be applied in a Court of Law as a minimum standard that should perhaps have been applied by an employer.

30. Some More Definitions Duty of Care • A Common Law Duty to exercise Reasonable Care in order to protect others from the risks of foreseeable injury, death or health problems.

31. Some More Definitions Reasonable Care • That which one would expect from a Reasonable Person (one who has regard to the possible consequences of their actions). • Higher standards are expected from those with greater knowledge, skills and experience.

32. Some More Definitions Legal Duties • Duties may be Absolute, Practicable, or Reasonably Practicable. • Employers and employees share a duty to take Reasonable Care.

33. Some More Definitions Absolute Duty • Duty-holders shall or must comply. • I.e. applies irrespective of financial implications.

34. Some More Definitions Practicable Duty • Comply so far as is practicable. • I.e. comply if possible, or technically possible. • Financial and technical implications may be considered, but should not be made an insurmountable obstacle.

35. Some More Definitions Reasonably Practicable Duty • Comply so far as is reasonably practicable. • I.e. the duty-holder is permitted to weigh up the assessed risk against the cost of merely reducing or totally eliminating the risk.

36. Some More Definitions Indictment • An accusation of wrongdoing. • The document formally outlining the charges being brought against an accused person.

37. Some More Definitions Negligence • “A wrong” (usually in civil law terms). • Conduct that falls short of what a reasonable person would do (e.g. to protect another person from harm that could reasonably be foreseen).

38. Some More Definitions Contributory Negligence • A common law defence. • E.g. where something one person has done has contributed in some way to injuries or loss sustained by a second person as a result of that second person’s own negligence, with the result that blame may be shared.

39. Some More Definitions Culpability • A measure of the extent to which a person can be held legally responsible. • May also be thought of as a measure of blameworthiness.

40. Some More Definitions Liability • That which, in law, makes a person responsible for injury or loss caused by the person’s actions or inaction, regardless of culpability.

41. Some More Definitions Vicarious Liability • A possible partial defence in law. • E.g. the responsibility of a manager for acts carried out by someone working under their direction.

42. H&S Law

43. Health & Safety Law The first piece of legislation within the UK that governed, in effect, the health and safety of workers, was the Factories Act of 1802 (also sometimes known as Health and Morals of Apprentices Act), which was intended to limit the number of hours that could be worked by women and children in the textile industry, and then later in all industries.

44. Health and Safety at Work etc Act 1974 Health and Safety at Work Act 1974

45. Health & Safety at Work Act etc 1974 • Primary legislation for occupational health and safety in the UK. • Enables a range of secondary legislation. • Sets out basic principles. • Also sets out national framework for regulation and enforcement.

46. Health & Safety at Work Act etc 1974 The Act established the simple yet enduring principle that those who create risk are best placed to manage it. Judith Hackitt CBE Chair of Health & Safety Executive 2008

47. Health & Safety at Work Act etc 1974 • General duties of employers • General duties of employees • Health & Safety Executive (HSE) • Employment Medical Advisory Service (EMAS) • Inspection • Enforcement, etc.

48. H&S@WA 1974: Section 2 Employersgeneral duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees and, in particular: • Safe plant and systems of work. • Safe use, handling, transport and storage of substances and articles. • Provision of information, instruction, training and supervision. • Safe place of work, access and egress. • Safe working environment and adequate welfare facilities.

49. H&S@WA 1974: Section 2(3) • Requires employers to have a Safety Policy (see https://www.ed.ac.uk/health-safety/policy-cop/policyfor UofE’s H&S policy, and https://www.ed.ac.uk/medicine-vet-medicine/staff-and-current-students/cmvm-health-and-safety/little-france/manual(Section 2) for the policy covering University buildings on the Little France/Bioquarter campus).

50. H&S@WA 1974: Section 3 • Employer’s general duties of care owed to others (including contractors, visitors, the general public, clients, etc).