NEU Guidance for Members, Reps and Local Officers on how health and safety reps can use their powers can work with members to address excessive workload.
The framework of UK health & safety law
Health and safety legislation in the UK developed over the years in a rather piecemeal way. By the 1970s there was legislation covering a number of different areas of employment including factories, mines and quarries, offices and shops, agriculture, railways and building and construction. The law contained a number of unsatisfactory gaps. For example, some areas of employment, covering large numbers of workers, such as the education sector, the health service and road transport were not covered by any safety legislation, while some types of hazard were not controlled by law.
This situation was completely changed by the introduction of the Health and Safety at Work etc Act 1974. It was designed to ensure that all workers were protected by a framework of integrated health and safety legislation dealing with the health, safety and welfare of employees and the public.
The Health and Safety at Work etc. Act 1974
The main purposes of the 1974 Health and Safety at Work etc Act, as laid out in Section 1 of the Act, are:
- to secure the health, safety and welfare of people at work; and
- to protect other people against risks to their health or safety arising out of the activities of people at work.
The Act has sought to do this in three main ways.
- It imposes general “duties of care” with regard to health and safety on employers, including the duty to ensure the health, safety and welfare of their employees, and also on employees, including the duty to take reasonable care for their own health and safety and the health and safety of others. These and other duties are considered in detail later in this briefing.
- It is an “enabling Act”, by permitting Regulations to be made which flesh out these general duties by creating specific legal requirements on health and safety issues. There are now a large number of Regulations in place made under the 1974 Act as well as some Regulations and Acts which predate the 1974 Act and are still in force.
- It provided a framework for enforcement by establishing the Health and Safety Commission (HSC), which had overall responsibility for overseeing health and safety law in Britain, and the Health and Safety Executive (HSE), which incorporated all of the various former Government health and safety inspectorates. The HSC and HSE have since merged and the organisation is known as the HSE
Duties of care under the Health & Safety at Work etc Act 1974
The 1974 Act applies to schools in the same way as all other workplaces. The most important duty under the Act for health, safety and welfare is that placed upon the employer. The Act also places duties upon employees and members of the public, so teachers and other school staff have duties under the Act as employees while pupils and visitors to schools are covered by the duties which the Act places on members of the public.
These legal duties are explored in detail in the following sections. Appendix A to this briefing note sets out the relevant provisions of the 1974 Act in full.
Who is the employer?
If you work in an local authority-maintained community school or voluntary controlled school, you are employed by the local authority. The local authority is responsible for complying with the legal duties which the Act places on employers. (Although your governing body is not your employer, it does however carry some responsibilities as a result of its delegated powers of management - see later).
If you work in an local authority-maintained foundation school or voluntary aided school, you are employed by the governing body of the school rather than the local authority. If you work in a sixth form or FE college, you are employed by the college corporation. If you work in an academy which is part of a chain, your employer is the academy trust and if you work in a stand-alone academy, your employer is the governing body. For independt schools the employer is the proprietor or governing body. It is those bodies which carry the legal duties of employers under the Act.
Employers’ duties to employees (Section 2)
Section 2(1) of the Act places a general duty on employers "to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees". The inclusion of the word “welfare” is important - it means that employers are required by the Act to consider matters such as rest facilities for employees even though they may not regard these as health and safety issues.
Section 2(2) extends this general duty of care to include, in particular:
(a) provision and maintenance of plant and systems of work that are safe and without risks to health;
(b) arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) provision of such information, instruction, training and supervision as is necessary to ensure the health and safety at work of employees;
(d) maintenance of a safe place of work and provision of means of safe access and egress;
(e) provision and maintenance of a safe and healthy working environment and adequate welfare facilities and arrangements.
All of these duties must be complied with "so far as is reasonably practicable". This means that the duties on employers are not absolute duties and a balance has to be struck between taking precautions and the cost of those precautions. One explanation of the words “reasonably practicable” is that such a duty is to be applied as far as is technically possible or feasible when weighing the risks against the costs of taking the measures necessary for averting the risks. There is always scope for argument about what is and is not "reasonably practicable". The NEU believes, however, that cost should never be accepted as an easy justification for failure to act in accordance with the above duties.
Sections 2(3) and 2(6) place further duties on the employer to prepare a written health and safety policy statement and to consult with safety reps. These are considered in separate NEU briefings on Managing Health and Safety in Schools and The Role of the Safety Rep.
Employers’ duties to non-employees (Section 3)
Section 3 requires employers to ensure that non-employees are not exposed to risks to their health and safety as a result of the employer’s undertaking. This means that in schools the employer has a duty of care to pupils and visitors under Section 3 with regard to their health and safety (but not welfare) as well as the duty of care to employees under Section 2. This duty is again couched in terms of "so far as is reasonably practicable”.
Section 3 also creates a duty of care upon contractors when they are carrying out work in other people’s workplaces. Contractors must, by virtue of Section 3, ensure that workers employed in those workplaces and others who are present are not exposed to risks to their health and safety as a result of the contractor’s undertaking, even though they are not the contractor’s own employees.
Duties of “persons in control of premises” (Section 4)
Section 4 imposes on employers a similar duty to workers working on their premises who are not their employees (e.g. sub-contractors) as they have to their own employees.
Section 4 also imposes duties on “persons in control of premises”. This is important in the education sector as it places legal responsibilities on those governing bodies which are not employers. The delegated management powers which those governing bodies have under the local management of schools system means that they fall within the category of “persons in control of premises“. They must therefore take reasonable measures to ensure that the premises, plant and substances thereon are safe and without risks to health.
Such governing bodies are also covered by Section 36(1) of the Act, which states that where any person commits an offence due to the act or default of some other person, that other person may be charged with and convicted of the offence. This means that governors, not the local authority, may be held liable when the fault lies with the governing body. All of these issues are considered in a separate NEU briefing on Managing Health and Safety in Schools, available at www.neu.org.uk.
Employees' duties (Sections 7 & 8)
Section 7 of the Act places two main duties upon employees:
(a) to take reasonable care for the health and safety of themselves and of other people who may be affected by their acts or omissions at work; and
(b) to co-operate with the employer as regards the duties and requirements placed on the employer by law.
The first duty is often referred to by the NEU to support members where it has been felt necessary for the teachers to withdraw themselves and their pupils from situations which place their health and safety at risk. The latter duty means, in particular, that teachers and school staff are obliged to follow the rules and procedures which the employer lays down on health and safety in the workplace.
Section 8 of the Act, which is a general provision applying to all persons (employees or the public) imposes the following additional duty:
- not to intentionally or recklessly interfere with or misuse anything provided in the interests of health and safety in pursuance of any of the relevant statutory provisions.
Employees have further legal duties under the Management of Health and Safety at Work Regulations 1999. These require employees to report situations of serious/imminent danger to employers and to report conditions which they consider to represent a shortfall in employers’ health and safety protection arrangements.
In addition, teachers still have the long-standing common law duty of care to children under their care. This duty, commonly known as the “in loco parentis” rule, was redefined by the 1989 Children Act, requiring teachers to do “all that is reasonable under the circumstances to safeguard or promote the welfare of children” (Section 3(5) of the 1989 Act).
Duties of pupils and visitors (Section 8)
Pupils and visitors are covered by the general duty upon members of the public under Section 8 of the Act. They must not intentionally or recklessly interfere with or misuse anything provided in the interests of health and safety in pursuance of any of the relevant statutory provisions.
Duties of manufacturers and suppliers (Section 6)
Section 6 requires manufacturers and suppliers of articles or substances for use at work to ensure that these are safe and without risks to health when properly used.
This section only applies, however, to things done in the course of a trade or business (including non-profit making businesses). It therefore applies to firms supplying goods and services to schools on a commercial basis and also to bodies such as charities who are in the business of providing goods and services free of charge to schools. It does not apply to private individuals, including employees, who donate goods to schools for use in the classroom, but it could be considered to apply to firms which donate such goods if they are doing so as part of an established business relationship or in order to build one up.
The position of headteachers under the Act
Headteachers have the same legal duties under the Act as all other employees. They also have contractual responsibilities with regard to health and safety as they are responsible under their statutory conditions of service for managing health and safety matters at the school. Their contractual responsibilities are, however, limited to those which can reasonably be expected of the headteacher and they cannot be made to take on any legal duty or obligation under the Act which is properly that of the employer. Their position is considered in more detail in the separate NEU briefing on Managing Health and Safety in Schools.
The position of safety representatives under the Act
Although the law gives safety representatives legal rights, it does not place any extra legal duties upon them other than those imposed upon all employees. Regulation 4(1)h of the 1977 Regulations governing the rights of safety reps specifically provides that none of their functions impose any legal duty upon them, so they carry no additional legal liability for either their acts or omissions as safety reps. Their rights and functions are considered in the separate NEU briefing on The Role of the Safety Rep.
An “enabling Act”: Other legislation and regulations on health and safety
As noted earlier, the 1974 Act is an “enabling Act”. It allows Parliament to make Regulations which flesh out the general duties under the Act by creating more specific legal standards and requirements which must be met on health and safety issues. Regulations have the same legal force as Acts of Parliament and are therefore part of the legal framework.
There are now a large number of Regulations in place made under the 1974 Act as well as some Regulations and Acts on health and safety matters which predate the 1974 Act and are still in force. For example, the Safety Committees and Safety Representatives Regulations 1977 govern the appointment and rights of union safety representatives. Other Regulations include the Control of Substances Hazardous to Health Regulations, the Electricity at Work Regulations, the Noise at Work Regulations and various others. Many of these are covered in detail in other briefings, which are available from the Health and Safety section of the NEU website.
The European Union has also been an important source of new health and safety legislation in the UK in recent years. The UK is, as an EU member state, required to implement the terms of EU Directives on health and safety matters. It remains to be seen what the impact of the outcome of the EU referendum will be on health and safety legislation. The TUC has produced a briefing on protecting health and safety after Brexit.
At the beginning of 1993 the management of health and safety in the UK underwent a major transformation due to the introduction of a series of six sets of regulations emanating from Europe. These were:
- the Management of Health and Safety at Work Regulations 1992 (revised in 1999);
- the Workplace (Health, Safety and Welfare) Regulations 1992;
- the Manual Handling Operations Regulations 1992;
- the Provision and Use of Work Equipment Regulations 1992 (revised in 1998);
- the Personal Protective Equipment at Work Regulations 1992; and
- the Health and Safety (Display Screen Equipment) Regulations 1992.
Collectively known as the “six pack regulations”, these regulations complement the Health and Safety at Work etc Act 1974 and are important because they make much clearer exactly what employers are required to do to comply with the terms of that Act. Again, most are covered in separate NEU health and safety briefings.
Other regulations originating from EU Directives include the 1997 Workplace (Fire Precautions) Regulations, which subsequently became the Regulatory Reform (Fire Safety) Order 2005 and the 1998 Working Time Regulations.
Enforcement: Health and Safety Executive
The HSE: Approved Codes of Practice and guidance notes
In April 2008 the Health and Safety Commission (HSC), established by the Government under the 1974 Act to assist in implementing and overseeing health and safety law, and the Health and Safety Executive, responsible for enforcing health and safety law, were merged into a single statutory body called the Health and Safety Executive (HSE).
As noted earlier, Regulations lay down more specific standards and requirements on health and safety than are set out in the 1974 Act. However, the law still needs to be fleshed out by further guidance on how its provisions are to be complied with in practice. This is where Approved Codes of Practice (ACOPs) and Guidance Notes come in. The HSE is responsible for issuing these and most health and safety regulations will have an accompanying ACOP and/or guidance notes.
HSE ACOPs have a special legal status. Where an ACOP’s provisions have not been followed by an employer who is prosecuted for a breach of health and safety legislation, the employer will always be found liable unless the employer can prove that the law had been complied with in some other way. The burden of proof in such circumstances is on the employer.
HSE guidance notes do not have the same force as an ACOP. Following the provisions of HSE guidance notes is not compulsory and employers are free to take other action if they wish. Employers who do follow them, however, will usually be doing what is needed to comply with the law.
Some of the HSE documents you will encounter (e.g. the “Brown Book” on the Safety Representatives and Safety Committees Regulations and the “Blue Book” on the Workplace Regulations) will include the terms of the regulations and the HSE ACOP and/or guidance notes in one volume You should also remember that case law in the courts and employment tribunals creates a further source of legal standards on health and safety matters as the courts and tribunals interpret the nature and extent of the law’s requirements in different cases.
The HSE: Enforcement in action
In schools, enforcing health and safety law is the responsibility of the Health and Safety Executive (HSE).
The following paragraphs tell you about the powers of the HSE and its Inspectors. Safety reps should remember, however, that the first port of call for assistance on health and safety matters must be the NEU and not the HSE. Safety reps should always consult their NEU Health and Safety Adviser and/or the NEU Adviceline before contacting the HSE and calling in an inspector.
HSE enforces the law via HM Health and Safety Inspectors who are HSE staff. They can visit workplaces following accidents or other incidents or following approaches by safety reps. Where HSE inspectors visit workplaces, they are expected to make contact with safety reps to discuss their visit. Unfortunately, since 2011, the HSE has classified schools as ‘low risk’ and has not routinely inspected them. The NEU disagrees with this classification and believes that schools should be routinely inspected by the HSE.
The HSE usually enforces the law by issuing improvement notices (requiring improvements in not less than 21 days) or prohibition notices (which effectively close down all or part of the premises until improvements are made). Failure to comply with these can lead to criminal prosecution by the HSE. Infringements of safety legislation can also lead to criminal prosecution by the HSE. Depending on the seriousness of any infringement, criminal cases will be heard at either the magistrates court or crown court. Any person found guilty will acquire a criminal record. Employers can be fined an unlimited amount or even jailed. The HSE now also operates a ‘Fee for Intervention’ scheme whereby if an employer is found to be in ‘material breach’ of health and safety legislation, the HSE will recover the costs for inspections and any other work involved in resolving the issue. This is currently charged at £129 per hour. Schools should be aware that if they were found to have breached health and safety legislation, they are likely to be faced with a hefty charge.
HSE’s Inspectors have extremely extensive powers. They have the right of entry to any premises and, like HM Customs & Excise (and unlike the police), they do not need a search warrant! They may:
- enter at any reasonable time (or, in situations which they believe to be dangerous, at any time) any premises which they have reason to believe it is necessary for them to enter;
- take with them any persons, equipment or materials they think are required and, if they have reasonable cause to expect obstruction in execution of their duty, take the police with them;
- make any examinations, investigations, measurements and recordings, take any photographs and remove any documents or samples as they think necessary;
- direct that the premises or anything therein are left undisturbed, or dismantle or (if necessary) destroy anything which appears to them to be dangerous; and
- exercise any other powers which are necessary.
Other enforcement agencies
HSE is not the only agency which is involved in enforcing health and safety law.
All fire safety legislation is enforced by the local fire authority. In offices, shops and many other kinds of premises, local authority Environmental Health Officers are responsible for enforcing health and safety legislation. Although the HSE is responsible for schools rather than local authority EHOs, the EHO could be called in as well regarding problems in particular parts of schools e.g. the office and the kitchens. Also, safety reps may need to contact EHOs where health and safety problems are encountered as a result of activities on adjoining premises.
Appendix: Health & Safety at Work etc Act 1974: Sections 2-9
SECTION 2: General Duties Of Employers To Their Employees
1. It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health and safety and welfare at work of all his employees.
2. Without prejudice to the generality of an employer's duty under the preceding subsection, the matters to which that duty extends include in particular -
- the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
- arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with use, handling, storage and transport of articles and substances;
- the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
- so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;
- the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for the welfare of employees at work.
3. Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and, as often as may be appropriate, revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees.
4. Regulations made by the Secretary of State may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultation with the employers under subsection (6) below and have such other functions as may be prescribed.
6. It shall the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures.
7. In such cases as may be prescribed it shall be the duty of every employer, if requested to do so by the safety representatives mentioned in subsections (4) and (5) above, to establish, in accordance with regulations made by the Secretary of State, a safety committee having the function of keeping under review the measures taken to ensure the health and safety at work of his employees and such other functions as may be prescribed.
SECTION 3: General Duties Of Employers To Persons Other Than Their Employees
1. It shall be the duty of every employer to conduct his undertaking in such a way as to ensure,
The Legal Framework
so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
2. It shall be the duty of every self-employed person to conduct his undertaking in such a employees) who may be affected thereby are not thereby exposed to risks to their health and safety.
3. In such cases as may be prescribed, it shall be the duty of every employer and every selfemployed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health and safety.
SECTION 4: General Duties Of Persons Concerned With Premises To Persons Other Than Their Employees
1. This section has effect for imposing on persons duties in relation to those who -
- are not their employees; but
- use non-domestic premises made available to them as a place of work or as place where they may use plant or substances provided for their use there,and applies to premises so made available and other non-domestic premises used in connection with them.
2. It shall be the duty of each person who has, to any extent control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substances in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means to access thereto of egress therefrom available for use by persons using the premises and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.
3. Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to -
a) the maintenance or repair of any premises to which this section applies or any means of access thereto or egress therefrom; or b) the safety of or the absence of risks to health arising from plant or substances in any such premises;
that person shall be treated, for the purposes of subsection (2) above, as being a person who has control of the matters to which his obligation extends.
4. Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).
SECTION 5: General Duty Of Persons In Control Of Certain Premises In Relation To Harmful Emissions Into Atmosphere
1. It shall be the duty of the person having control of any premises of a class prescribed for the purposes of section 1(1)(d) to use the best practicable means for preventing the emission into the atmosphere from the premises of noxious or offensive substances and for rendering harmless and inoffensive such substances as my be so emitted.
2. The reference in subsection (1) above to the means to be used for the purposes there mentioned includes a reference to the manner in which the plant provided for those purposes is used and to the supervision of any operation involving the emission of the substances to which that subsection applies.
3. Any substances or a substance of any description prescribed for the purposes of subsection (1) above as noxious or offensive shall be a noxious or as the case may be, an offensive substance for those purpose whether or not it would be so apart from this subsection.
4. Any reference in this section to a person having control of any premises is a reference to a person having control of the premises in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not) and any duty imposed on any such person by this section shall extend only to matters within the control.
SECTION 6: General Duties Of Manufacturers Etc As Regards Articles And Substances For Use At Work
1. It shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work -
a) to ensure, so far, as is practicable, that the article is so designed and constructed as to be safe and without risks to health when properly used;
b) to carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the proceeding paragraph;
c) to take such steps as are necessary to secure that there will be available in connection with the use of the article at work adequate information about the use for which it is designed and has been tested, and about any conditions necessary to ensure that, when put to use, it will be safe and without risks to health.
2. It shall be the duty of any person who undertakes the design or manufacture of any article for use at work to carry out or arrange for the carrying out of any necessary research with a view to the discovery and, so far as is reasonably practicable, the elimination or minimisation of any risks to health or safety to which the design or article may give rise.
3. It shall be the duty of any person who erects or install any article for use at work in any premises where that article is to be used by persons at work to ensure, so far as is reasonably practicable, that nothing about the way in which it is erected or installed makes it unsafe or a risk to health when properly used.
4. It shall be the duty of any person who manufactures, imports or supplies any substance for use at work -
a) to ensure, so far as is reasonably practicable, that the substance is safe and without risks to health when properly used;
b) to carry or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph;
c) to take such steps as are necessary to secure that there will be available in connection with the use of substance at work adequate information about the results of any relevant tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that it will be safe and without risks to health when properly used.
5. It shall be the duty of any person who undertakes manufacture of any substance for use at work to carry out and arrange for the carrying out of any necessary research with a view to the discovery and, so far as is reasonably practicable, the elimination or minimisation of any risks to health and safety to which the substance may give rise.
6. Nothing in the preceding provision of this section shall be taken to require a person to repeat any testing, examination or research which has been carried out otherwise than by him or at his instance, in so far as it is reasonable for him to rely on the results thereof for the purposes of those provisions.
7. Any duty imposed on any person by any of the preceding provisions of this section shall extend only to things done in the course of a trade, business or other undertaking carried on by him (whether for profit or not) and to matters within his control.
8. Where a person designs, manufacturers, imports or supplies an article for or to another on the basis of a written undertaking by that other to take specified steps sufficient to ensure, so far is reasonably practicable, that the article will be safe and without risks to health when properly used, the undertaking shall have the effect of relieving the first-mentioned person from the duty imposed by subsection (1)(a) above to such extent as reasonable having regard to the terms of the undertaking.
9. Where a person ("the ostensible supplier") supplies any article for use at work or substance for use at work to another ("the customer") under a hire-purchase agreement, conditional sale agreement or credit-sale agreement, and the ostensible supplier -
a) carries on the business of financing the acquisition of goods by other by means of such agreements; and
b) in the course of that business acquired his interest in the article or substance supplied to the customer as a means of financing its acquisition by the customer from a third person ("the effective supplier");
the effective supplier and not the ostensible supplier shall be treated for the purposes of this section as supplying the article or substance to the customer, and any duty imposed by the preceding provisions of this section on suppliers shall accordingly fall on the effective supplier and not on the ostensible supplier.
10. For the purposes of this section an article or substance is not to be regarded as properly used where it is used without regard to any relevant information or advice relating to its use which has been made available by a person by whom it was designed, manufactured, imported or supplied.
SECTION 7: General Duties Of Employees At Work
1. It shall be the duty of every employee while at work -
a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and
b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to cooperate with him so far as is necessary to enable that duty or requirement to be performed or complied with.
SECTION 8: Duty Not To Interfere With Or Misuse Things Provided Pursuant To Certain Provisions
No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare in pursuance of any of the relevant statutory provisions.
SECTION 9: Duty Not To Charge Employees For Things Done Or Provided Pursuant To Certain Specific Requirements
No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions.