Firm footing

The Health and Safety at Work etc Act, now in its 40th year, is still fit for purpose and standing tall in the face of government deregulation, say Peter James and Sebastian Jones

Despite rapid development of new industries and spectacular advances
in technology, the Health and Safety
at Work etc Act 1974 (HSWA) has stood the test of time with its aims and principles retaining their relevance. It has become the vehicle to ensure compliance with the regulatory framework coming from Europe, which continues to impose strict duties on UK employers and other duty holders.

Health and safety regulation in Britain began with the Factories Act 1833, which was concerned primarily with regulating child labour in textiles mills, providing for the appointment of four inspectors to enforce its provisions. Throughout the 19th and 20th centuries, further legislation extended H&S regulation to most industries,
but this tended to be prescriptive and
industry-specific.

Inconsistencies developed. There was no requirement for employee participation and some industries escaped regulation altogether.
By the 1960s, trade unions and government recognised the need for a complete overhaul. Several catastrophic accidents had highlighted the inadequacy of existing disparate legislation.
A new approach to tackle fundamental issues of workplace safety was needed.

Lord Robens was appointed by Labour minister Barbara Castle to lead an enquiry into workplace health and safety in 1969. The Robens Commission's findings, reported in 1972,
were generally welcomed and most were incorporated into HSWA.

The Act provides general principles for the management of health and safety at work. Its provisions and the duties it creates for employers and others are less prescriptive than preceding legislation; they are more goal-based, adopting principles of self-regulation by industry. Robens concluded that those involved in industry were best placed to identify and control risks.

The main duties imposed on employers are found at sections 2 and 3: employers are required to ensure, so far as is reasonably practicable,
the health and safety of employees and others, including the general public, who may be affected by work being carried out. The provisions are widely drafted, embracing employers throughout industry and commerce.

HSWA enables the creation by statutory instrument of further regulations dealing with specific areas of work and risk. This has become the principal means for compliance with the European Health and Safety Framework Directive 89/391 EEC, and resulted in the so-called 'six pack' of regulations that impose a number of strict duties on employers concerning the use and maintenance of work equipment, manual handling and the assessment of risks associated with work.

The Act also created two quasi-government bodies to oversee and enforce health and safety: the Health and Safety Executive (HSE) and the Health and Safety Commission, which merged in 2008. The HSE continues to enforce HSWA and its regulations while issuing codes of practice too.

Higher ground

HSWA has been the subject of significant legal arguments in the higher courts - hardly surprising considering its adoption of a broad, goal-based approach and non-prescriptive model of regulation. The HSE's vigorous enforcement of breaches of duty under sections 2 and 3 has led
to challenges over interpretation of the Act's provisions and what the prosecution must prove to secure a conviction.

The courts have considered the meaning and nature of risk (R v Porter 2008), the relevance of foreseeability (Baker v Quantum 2011) and the extent to which the prosecution must establish
an exposure to risk (R v Chargot 2008).

There have been other fundamental challenges. The general duties imposed on employers under sections 2 and 3 are not strict. Instead, they are qualified by a reasonable practicability test determined by several factors, including
the nature and extent of the risk.

Once the prosecution has established
beyond reasonable doubt that an employee
or non-employee has been exposed to risk,
the burden of proof shifts to the defendant to establish that, on the balance of probability,
it has taken all reasonably practical steps to control that risk (section 40).

In Davies v HSE 2002, the Court of Appeal held that the requirement to prove all reasonably practical steps had been taken and reversing the burden of proof were compliant with European Court of Human Rights article 6(2) and did not interfere with the presumption of innocence. The Court of Appeal noted the reverse burden applied to regulatory offences and not criminal offences punishable by imprisonment.

The Health and Safety (Offences) Act 2008 subsequently gave the courts power to impose custodial sentences on conviction of certain health and safety offences, including those contained in sections 2 and 3.

Europe challenge

The European Commission mounted its own challenge to the reasonable practicability qualification, arguing it was not compatible with its framework directive, which allows member states to incorporate a defence where an occurrence was because of unusual and unforeseen circumstances beyond an employer's control. The European Court of Justice found
that the provisions of HSWA, specifically the reasonable practicability qualification, were compliant with the directive (Commission v UK [2007] Case C127/05).

The present government has focused on deregulation and reducing burdens on business. Following several reports, including those of Lord Young and Professor Löfsted, and the launch of its own red-tape challenge, the government has committed to streamlining the health and
safety framework by removing some of the
200 regulations and simplifying some of the
56 codes of practice.

Nonetheless, HSWA itself has escaped
serious censure and is still considered fit for purpose. Its underlying principle, that those who create risks from work activity are best placed to protect employees and the public, is still considered relevant.

Statistically, it can be considered successful and a force for good: fatal injuries have fallen from 651 in 1974 to 148 in 2012/13. Britain consistently has the lowest recorded levels of non-fatal injuries throughout Europe.

Duty holders

HSWA continues to be the principal means to  enforce health and safety duties imposed on employers and those in control of work activity. The HSE and, in some cases, the Crown Prosecution Service (CPS) continue to prosecute duty holders under the Act following accidents involving serious injury and death. It has been used to prosecute duty holders in circumstances probably not foreseen by Robens and is increasingly used for accidents that occur outside traditional work places involving the general public. In particular, the HSE now investigates and prosecutes those supplying and operating public leisure activities in the event of accidents involving injuries and fatalities.

The police and emergency services are also coming under increasing scrutiny. The Metropolitan Police was prosecuted for health and safety offences under section 3 following Jean Charles De Menezes' death in 2005. Greater Manchester Police, through its chief constable, is currently being prosecuted for the same offence following the shooting of Anthony Grainger in 2012. Both prosecutions were brought by the CPS rather than the HSE, a further departure from long-standing practice.

It is the generality of HSWA's provisions, and its non-prescriptive nature, that make it as relevant today as it was in 1974, despite the different
social and working landscape. There is nothing to stop it from being the mainstay of health and safety regulation for the foreseeable future. 

SJ