Purpose of Enforcement and Laws of Contract

Purpose of Enforcement

The regulation of criminal law on health and safety at work requires an enforcement agency and its broad role is likely to be to protect people against risks to health or safety arising out of work activities.
In order to achieve this, legal compliance must be enforced. The ultimate aim is always prevention but action is needed where there is the deliberate flouting of health and safety laws.

Enforcement ensures that duty holders:

• Deal immediately with serious risks.
• Comply with the law.
• Are held to account if they fail in their responsibilities.

To enforce compliance with legal requirements there are several approaches that can be taken, ranging from:

• provision of advice on what changes need to be introduced and how these may be achieved, to
• prosecution under relevant health and safety laws that might be imposed on employers.

Following a successful prosecution, the penalty could be a fine or possible imprisonment. The aim is some form of punishment with the purpose of deterring any future non-compliance.

Principles of Enforcement with Reference to the HSE’s Enforcement Policy Statement (HSE41)

The UK’s HSE aims for a firm but fair enforcement of health and safety law and applies the following principles, which are described in its Enforcement Policy Statement (HSE41):

• Proportionality of Enforcement
Enforcement action should be in proportion to any risks to health and safety, or to the seriousness of any breach of law. Enforcing authorities should take into consideration how far the duty holder has fallen short of what the law requires and the extent of the risks to people arising from the breach.

Some health and safety duties are absolute but others require action ‘so far as is reasonably practicable ’ which involves judgment. This means taking into account the degree of risk on the one hand, and the sacrifice (money, time, or trouble) involved in dealing with the risk on the other. Unless it can be shown that there is a gross disproportion between these factors and that the risk is insignificant in relation to the cost, the duty holder must take measures to reduce the risk.
The HSE expects the relevant good practice to be followed, but in circumstances where such standards are not clearly established UK law requires duty holders to determine what action needs to be taken to adequately reduce the risks. However, what is reasonably practicable in particular cases is ultimately determined by the courts.

• Consistency of Approach
Duty holders managing similar risks expect a consistent approach with regard to advice given, the use of enforcement notices, decisions on whether to prosecute and the response to incidents. Consequently, a similar approach needs to be taken in similar circumstances to achieve similar ends.
The HSE recognizes that in practice consistency is not a simple matter, due to a number of factors including:
– The degree of risk.
– The attitude and competence of management.
– History of incidents.
– Previous enforcement action.
It is recognized that decisions on enforcement action involve judgment by the enforcer, but enforcing authorities should have arrangements in place to promote consistency.

• Transparency
Duty holders need to understand what is expected of them and what they should expect from the enforcing authorities. They should also be clear about what they have to do and what they don’t – this means being clear about statutory requirements that legally apply, and advice or guidance that is desirable but not compulsory.
Transparency also involves ensuring that employees and their representatives are kept informed about any decisions made and actions taken.
Duty holders, employees, their representatives, and others also need to know what to expect when an inspector calls and what rights of the complaint are open to them. In the UK all enforcing authority inspectors are required to issue the HSE leaflet What to expect when a health and safety inspector calls to those they visit. When inspectors offer duty holders information or advice, face to face or in writing, they will explain what has to be done to comply with the law and why. If asked they will write to confirm any advice and to distinguish legal requirements from best practices. If a notice is served the inspector will try to resolve points of difference before serving it and make sure it is clear what needs to be done, why, by when, the breach of the law has been committed, or why any prohibition is necessary.

• Targeting
Targeting ensures that resources are directed to those whose activities give rise to the most serious risks or where the hazards are least well controlled. Action needs to be focused on the duty holders who are responsible for the risk and who are best placed to control it, i.e. employers, manufacturers, suppliers, or others.

Enforcing authorities should have systems to prioritize inspections, investigations, or other regulatory contacts based on risk. The duty holder’s management competence is also important because a poorly managed low-hazard site can present a greater risk to workers or the public than a higher-hazard site where proper risk control measures are in place.

• Accountability
Enforcing authorities should have policies and standards in place against which they can be judged and an effective and accessible procedure for dealing with comments and complaints.
The leaflet What to expect when a health and safety inspector calls sets out HSE guidelines on what takes place during a routine inspection against which the inspector can be judged, and an effective and accessible procedure for dealing with comments and complaints. Enforcing authorities will have their own complaints procedures and details will depend on the individual authority.

Laws of Contract

Contract law is a feature of many jurisdictions including the UK, Australia, and America. Contract law has many implications in respect of occupational health and safety. The relationship between an employer and an employee or contractor is based on a contract of employment. Similarly, contracts are established between those who manufacture articles or substances and those who buy them.

Principles of Typical Laws of Contract

If a contract is formed, then the parties who formed the contract are legally bound by the terms of the contract – the binding nature of a contract. If, subsequently, one of the parties defaults on the contract then this would constitute a breach of contract. It is not possible to bring legal action against somebody for breach of contract who was not part of the contract. This is called the privity of contract. If the person who has caused the breach does not provide a remedy then the person who has suffered a loss as a result of the breach can bring a court action.
When an employer engages an employee, a contract of employment is established.

Employer↔ Employee

One of the implied terms of such a contract is that the employer will take reasonable care to ensure the health and safety of the employee. Similarly, the employee is required to carry out his or her work with reasonable care and skill.
A breach of contract, such as not adhering to the safety rules may constitute a breach of contract resulting in the employer dismissing the employee.
If the contract is breached and there is a personal injury then in the UK it is usual to bring a civil action under the common law tort of negligence or breach of statutory duty, rather than for breach of contract.
When articles and substances are manufactured there may be a series of contracts established between the producer (or manufacturer) and the consumer (or end-user).

Producer ↔ Vendor ↔ Consumer

For example, if a person purchases a machine of a particular make and model for use at work and the vendor sells a machine that does not meet this specification, then the consumer would be entitled to have the machine replaced with the one ordered, or alternatively receive a full refund of the money paid.

Similarly, it is commonplace for employers to engage contractors for short-term work, particularly in the construction industry.

Employer ↔ Contractor ↔ Subcontractor

The contract chain may be very short or, in the case of articles and substances manufactured in another country, the chain can involve importers and be much longer. Each member engages in contracts with those above and below in the chain. If a contract fails for such matters as failure to supply the correct goods, poor quality work, or not completing the work within the time specified by the contract, etc. a civil action for breach of contract may follow. Remember, though, that personal injury cases usually result in civil actions for negligence and breach of statutory duty rather than for breach of contract.