Attention directors! Health and safety gets personal!
1 September 2005 marked the beginning of a new era in health and safety law in Ireland. The Safety Health and Welfare at Work Act, 2005 came into force on that day and brought with it important changes in the area. Whilst most of the obligations on employers which arose under the previous Act (the Safety Health and Welfare at Work Act 1989) have been carried over into the 2005 Act, very significant changes arise in the area of penalties and liability. The penalties under the 2005 Act are much stricter than those previously provided for, and personal liability for directors, officers and other managers of a business can now arise. Now is the time for all businesses to make sure that they are on the right side of the law.
A number of obligations contained in the 1989 Act are maintained in the new legislation:
Duty to employees
An employer has a legal duty to do everything that is reasonably practicable to protect the health, safety and welfare not only of all his/her employees but also anyone who might be affected by the employer’s work activities or whilst at the workplace, such as sub-contractors or even members of the public. As such, the fundamental obligation on an employer is to provide a safe workplace.
Safety statements
Employers are required to formulate and maintain a safety statement which sets out the procedures and policies which the employer follows to avoid risks which are present in the workplace. In order to formulate the safety statement, the employer must carry out a risk assessment of the workplace so as to identify risks. The employer must also provide the services of at least one competent person (either an existing member of staff or an outsourced individual) to be responsible for health and safety matters and to formulate a coherent Health and Safety policy for that particular workplace.
Other obligations on employers which have carried over by the 2005 Act include the requirement on employers to consult with employees in matters of health and safety; to ensure that risks to the health and safety of employees are periodically evaluated; to carry out health surveillance reviews on employees and to ensure that all employees receive, during time off from their duties and without loss of remuneration, adequate safety and health training. In addition to these key general duties there are also a number of specific legal requirements imposed on employers such as the provision of safe work equipment, training, protective clothing where necessary.
So what’s new in the 2005 Act?
“Managing” workplace activities
One of the most noteworthy new duties on employers is to show that they are “managing” workplace activities so as to prevent any improper conduct likely to put employees at risk. An employer will have to take a number of steps to prove this, one such example being the maintenance of on-going records of employee health and safety training. That was probably an implied duty under the 1989 Act, but it is now in black and white in the 2005 Act.
New obligations in relation to safety statements
Most employers are still required to have a safety statement under the 2005 Act. However, employers are now specifically required to ensure that the safety statement is regularly reviewed so as to reflect any on-going or new hazards in the workplace. This new obligation has arisen as the Health and Safety Authority found that, when they investigated accidents in the workplace, employers frequently produced to them a safety statement for the workplace which had been prepared many years before and which was badly out of date.
There is some relief for smaller organisations in relation to safety statements. Those employers with three or less employees can dispense with a safety statement, provided they comply with the relevant code of practice for their sector. The codes of practice will be developed by the Health and Safety Authority on a sector by sector basis in the coming months.
Employee’s duties
A noteworthy and novel development in the new Act is the requirement on an employee that, whilst at work, they must not be under the influence of an intoxicant. Furthermore, and particularly noteworthy, is the fact that the employee would have to submit to a test for intoxicants under the supervision of a medical practitioner, if reasonably required by their employer. Whilst the Act provides that such obligations on employees will come into law, this will not happen until detailed regulations outlining the procedures to be followed by an employer have been drawn up and published. When the Act was first published in Bill form, needless to mention the civil rights implications of a provision such as this were canvassed.
Hayes solicitors held a breakfast briefing on the new law last May, so as to ensure our clients were fully up to speed on the upcoming developments. At that breakfast briefing, Mr. Tom Beegan, Chief Executive of the Health and Safety Authority, made an address and took the opportunity to clarify that there will be significant consultation by the Health and Safety Authority before the necessary regulations to introduce this aspect of the Act are brought into law. The emphasis in doing so, Mr. Beegan said, will be to have the procedure work in a supportive way for an employee, rather than in a punitive way. Consultation on this aspect of the legislation is now underway.
Penalties
Perhaps most important of all in the 2005 Act is the new heavy penalties which will arise for employers who fall foul of health and safety law after 1 September 2005. The new maximum penalty for a breach of health and safety law is a fine of €3,000,000 and/or up to 2 years imprisonment, a factor to be given due consideration by employers!
Under the 2005 Act, the Health and Safety Authority will now be allowed to impose on-the-spot fines of up to €1,000 for breaches in certain circumstances. It also allows for the possibility of the publication by the Health and Safety Authority of lists of employers which have been convicted of health and safety breaches. The negative PR attaching to that should act as a deterrent for employers.
Liability
Add to these heavy penalties the fact that directors, officers and “other managers” of an organisation can now be personally liable for health and safety breaches and one sees the seriousness with which offences under health and safety law will now be viewed. As a practical matter, given the new personal liability implications, we would strongly recommend employers to review their existing insurance policies to ensure that health and safety breaches are covered as part of the directors’ liability portion of the policy.
When I spoke at our breakfast briefing last May, I suggested that the possibility would arise under the 2005 Act for a Health and Safety Officer to be personally liable, even though he or she might not be a director of the employer organisation. In his address, Mr. Beegan made it clear that this is very much a possibility under the new Act.
The general theme of Mr. Beegan’s presentation at our briefing last May was to reflect the need for employers to integrate health and safety procedures as one aspect of the on-going management of a business so as to prevent accidents at work occurring. He stressed prevention as the key focus of the 2005 Act. The heavy penalties provided for in that Act are certainly designed to ensure that an employer takes all possible steps now to avoid difficulties.
Conclusion
Whilst many of the previous obligations on an employer under health and safety law have been carried over by the 2005 Act, it is clear that the focus of the new Act is on prevention of accidents in the workplace. Expect to see careful monitoring of employers by the Health and Safety Authority going forward, and increased penalties being imposed by the courts. The Act is certainly to be welcomed in hopefully leading to a reduction in the number of accidents in the workplace, whether minor or more tragic. The 2005 Act makes clear that employers are expected to play their part by having policies and practices which are up to scratch.
David Phelan – dphelan@hayes-solicitors.ie