7th March 2022
7th March 2022
This guide explores some important legal factors which must be considered by employers in order to ensure a safe working environment in England and Wales.
Under common law, employers have a general duty of care to employees. The Health and Safety at Work Act 1974 (HSWA 1974) and the Management of Health and the Safety at Work Regulations 1999 (SI 1999/3242) (the Regulations) provide a further, more in-depth, framework for the health and safety duties of employers in England and Wales.
Employers have a specific statutory duty to ensure the health, safety and wellbeing of its workers under the HSWA 1974. The health and safety obligations of employers are further refined by particular sections of the HSWA 1974 and other relevant regulations. Those obligations include:
making and giving effect to arrangements to allow for the management of preventative and protective health and safety measures (and reviewing those arrangements);
In order to ensure that it meets its health and safety duties, and as a legal requirement, every employer must:
Where an organisation has five or more employees, the law stipulates that:
The employer should consider all relevant factors when assessing the risks which could be faced in the workplace and when creating its policy document. This will usually cover a whole range of factors, for example:
Once a risk assessment has been undertaken and the policy has been created, the employer is legally required to bring the health and safety policy to the attention of its workforce.
Any failure to meet the above requirements could result in sanctions being imposed against the employer.
Since the outbreak of the COVID-19 pandemic, there has been a rise in the number of workers and employees who conduct their duties remotely/from home. It is important for an employer to remember that it has the same health and safety duties for workers and employees who work in a fixed workplace (such as an office) as it does for those are working remotely.
The possible risks and health and safety issues which are relevant to remote working should be considered as part of an employer's risk assessment. Possible health and safety issues relevant to home working which may need to be addressed could include:
It is useful for an employer to create a remote work policy, which can address the factors which are unique to remote working and to ensure that any possible risks are sufficiently addressed. Such a policy can then be read in conjunction with the overarching health and safety policy.
Although restrictions have been lifted in England, and are gradually being reduced in Wales, it remains important for employers to ensure that they appropriately manage COVID-19 related risks in the workplace setting. An employer should consider any particular steps which can be taken in the workplace to manage such risks. For example, this could include:
An employer may find it useful to create a specific COVID-19 workplace policy document to encapsulate those factors, which can then be read in conjunction with the overarching health and safety policy.
The Public Interest Disclosure Act 1998 made an important amendment to the Employment Rights Act 1996 in respect of whistleblowing. This piece of law protects employees and workers where they have made a 'protected disclosure'.
A protected disclosure covers a range of circumstances. For the context of this guide it is important to note that a protected disclosure will include a situation where a worker or employee has a reasonably held belief that there is a danger to health and safety, and the worker or employee shares this information with their employer.
Where a protected disclosure has been made, a worker cannot be subjected to a detriment (for example, disciplinary action or damage to their career) and in addition, those with employee status cannot be dismissed by virtue of the disclosure.
It is therefore vital that employers ensure that there is a proper procedure in place and that staff are made aware, through the written policy or otherwise, that health and safety concerns will be taken seriously when they are reported by staff members.
The recent increase in home working arrangements has sadly resulted in a heightened risk to those who are not safe in their own home as a result of domestic abuse. On 14 January 2021, the government published an open letter to employers, following a review report which had been completed addressing workplace support for those who are experiencing or have survived abuse. The letter encouraged employers to ensure that signs of domestic abuse can be spotted and to help staff to feel more comfortable raising the issue of domestic abuse. The report itself highlighted that an "employer's duty of care may include protecting employees from wrongful acts of co-workers and third parties".
Therefore, this particular issue should be considered when an employer considers its health and safety obligations in view of its duty to protect its workforce from possible safety risks which could be posed by third parties. To ensure that the employer does not fall short of this duty, it is useful for the workplace to have a specific domestic abuse policy. Such a policy can set out specific reporting procedures, the support which is available for those who have experienced or are experiencing domestic abuse and any disciplinary action which may be taken against perpetrators of abuse.
Where there is a failure of an employer to comply with its legal health and safety duties, civil or criminal action can be brought against the employer or the responsible person. The Health and Safety Executive is able to issue a range of enforcement sanctions ranging from warning notices to the variation of licences. For serious failures, criminal prosecution can be brought against an employer. A custodial sentence of up to two years and/or an unlimited fine can be issued to an employer in relation to a health and safety offence. For an employer which is a company (which will have its own separate legal personality) is important to note that, an individual (director, secretary or manager) within that company can still be held to be individually liable for health and safety offences.
Therefore, as well as being a legal requirement, a health and safety policy will help an organisation ensure that it properly fulfils its health and safety obligations.