Element A8

Element A8

SOURCES OF LAW

COMMON LAW

Developed over time rather than laid down by

parliament

Similar facts treated the same on different occasions

Judge made law

Where no precedent – judge sets precedent

Creates binding precedent on all lower courts

Decisions by equal courts = persuasive precedent only

Relies on precedent

Element A8

SOURCES OF LAW

STATUTE LAW

Established by Parliament

The Ultimate source of law

Even if it conflicts with common law

Can abolish common law or amend it to deal with

changing circumstances, establish clarification, close

loop holes

Establishes clear obligations to be

followed

Element A8

SOURCES OF LAW

EU DIRECTIVES

Implemented in UK as regulations

EU REGULATIONS

Directly binding

Element A8

UK ACTS AND REGULATIONS

ACTS

Green paper Consultation document

White paper Policy statement – clear intention to pass leg.

Bill First reading

Second reading Policy debate

Committee stage Considered in detail

Report stage Amendments at committee stage

Third reading Final

Followed in commons then lords until bill passed

Lords amend – considered by commons

If lords delay or reject for 1yr – passed without agreement

Element A8

These stages back and forth

until agreement is reached

UK ACTS AND REGULATIONS

ACTS REGULATIONS

HASAWA

Delegated

Made by ministers of the crown

Laid before parliament for up to 40 days rather than

voting

Members can veto

Element A8

CRIMINAL LAW

Society (the State) decides Std’s

Offences against the state

Criminal courts

Guilt or innocence decided

Beyond reasonable doubt

Sanctions

Imposed on person / organisation found guilty

Prohibition / improvement notices

Element A8

CRIMINAL LAW

Private prosecutions

HASAWA

CPS on behalf of HSE / EHO / Fire / Police

Restrictions do not need confirmation

of the courts

They are depcited in law

HSE – prohibition notices etc

Element A8

CRIMINAL LAW

3 categories of offence

Summary

Mag ct. no jury. Less serious

Max fine (S7. HASAWA employees duties) £5k or 6months

Triable either way

Defendant / prosecution can request trial by jury

Crown or Mag.

Def can choose court Mag may refer to crown for sanctions

Element A8

CRIMINAL LAW

3 categories of offence

Indictment

Serious crimes

Judge + Jury + Crown Court

Penalties

Unlimited fine

2 yrs prison (or both)

Gross Neg Manslaughter – 25years

Element A8

CIVIL LAW

REGULATED disputes between

individuals

Contract law

Legally binding relationships

Tort Law

Redressing the wrongs

Nuisances / defamation / negligence

Element A8

CIVIL LAW

H+S relevant Civil law

Contract

Employment

Tort

Negligence

Remedies

Compensation, damages, injunction (order)

Element A8

BURDEN OF PROOF

CIVIL

Balance of probability

Burden shifts

Claimant establishes facts, defendant defends case

Judge decides who he is in favour of

Makes decision based on evidence

Element A8

BURDEN OF PROOF

CRIMINAL

Beyond reasonable doubt

Prosecutor has to prove “guilty act and mind”

HASAWA sec 40

Requirement modified

Duty for accused to show they were in compliance

Prosecution still has to prove beyond reasonable doubt

Element A8

GUILTY MIND

H+S Matters

Not necessary to show guilty mind

Absolute duty to comply

State of the mind does not enter into the matter

Guilty mind

Intention

Person intended the act or knew there was high probability of

consequences

Recklessness

Whilst not desiring outcome, could foresee probability of it occuring.

APPLIES TO GROSS NEGLIGENCE MANSLAUGHTER

Element A8

ABSOLUTE / QUALIFIED DUTIES

Civil and Criminal

Recognise person accused of wrongdoing expected to have acted in a particular way and put effort into doing so

Absolute

Requires compliance regardless of tech considerations or cost

Words such as “will”, “must”, “shall”

MHSWR reg 3 ABSOLUTE duty to undertake R/A

Element A8

ABSOLUTE / QUALIFIED DUTIES

Absolute cont…

Summers and Sons v. Frost 1955

Absolute – securely guarded machines

Element A8

ABSOLUTE / QUALIFIED DUTIES

Practicable

Requires duty holder to keep up with developing tech

and current knowledge / invention and not be slow to

employ it

Eliminates costs as consoderation

Stricter than REASONABLY PRACT.

H+S(DSE) regs Reg 5

Provide eye tests as soon as practicable after one has been

requested by the “user”

Element A8

ABSOLUTE / QUALIFIED DUTIES

Reasonably Practicable

“more than physically possible”

Duty holder can balance risk against cost of action

If cost grossly disproportionate to the risk – no action

need be taken

Does not mean no action at all – action involving less

cost should be taken

PPE, Training etc.

Element A8

ABSOLUTE / QUALIFIED DUTIES

Quantum of risk test

Risk balanced against sacrifice

Sacrifice = time, money, trouble

If it is shown that there is gross disproportion between

them, the risk being the insignificant of the two, then

the defendant discharges the onus upon them.

Effectively an implied requirement for a risk

assessment.

Element A8

ROLE OF EU

See previous assignment

Element A8

ESTABLISHING DIRECTIVES

Ordinary legislative procedure

Council and parliament agree

Consultation legislative procedure

Council take note of parl before decision

Consent legislative procedure

Council proposes final draft to part.

Approved with no amendments

Element A8

ORDINARY LEGISLATIVE PROCEDURE

Element A8

ESTABLISHING DIRECTIVES

Article 95 Amsterdam Treaty

Harmonised tech stds

Harmonisation of internal market

Reduce barriers to trade

Free movement of goods / persons

Agreed std’s throughout EU

Essential H+S req’s to be complied with

Manufactured goods / suppliers

PPE Supply Directive 1989

PPE Regs 2002

Element A8

ESTABLISHING DIRECTIVES

Article 137 Amsterdam Treaty

Encouraging improvements to the workplace

Promote stds of H+S

Framework Directive 89 MHSWR

DSE Directive 90 DSE Regs

Noise Directive 2003 Control of noise @ work regs 2005

Element A8

UK LAW – RESPONSE TO DIRECTIVES

Under HASAWA

Section 15 – framework to be adhered to when

making H+S regs

In most cases laid before parliament for 40 days

before coming into force

Rather than positively voted on

Element A8

UK LAW – RESPONSE TO DIRECTIVES

Under HASAWA

Consultative doc

CBI, TUC etc

Background, aims of proposed reg along with CBA

As well as draft leg.

Comments sought on proposals and assumptions on CBA

Sec of State must consult with HSE when making / modifying

regs in this way

Directives must be implemented so

consultative role may be limited.

Element A8

ROLE OF ECJ

5 COMMON types of cases

Preliminary ruling procedure

Member states seek advice on impl. Directives

Final and binding decision

Failure to fulfill obligation

Commission starts. If member state fails under EU law obl.

Annulment

If any EU law is illegal

Failure to Act

Treaties req Eu Parl, council etc to make certain decisions

Damages

Action / inaction of EU staff

Comp to individual / company

Element A8

TRIBUNALS

Legally qualified chair

2 lay members

H+S cases

Victimisation / dismissal following breach

Appeal against proh. Notice

SRSC time off, payment, training etc

HSCER pay / time off

Suspension on medical grounds, maternity

Element A8

TRIBUNALS

Powers

Financial award

£50k max

Unlimited – discrimination, public interest disc

Direct certain rights

SRSC etc

Element A8

COURT PROCEDURE

Element A8

CRIMINAL COURT PROCEDURE

Magistrates

Refer to High Ct on point of law

Crown

Refer to High Ct on point of law

Court Of Appeal (Criminal div)

Supreme Court

Element A8

TRIBUNAL PROCEDURE

ET

EAT

Court of Appeal (Civil)

Supreme Court

Element A8

SANCTIONS LIMITS

MAGISTRATES

6 months

£5k fine H+S £20k employer / £5k sec 7 employee

COUNTY

Personal Injury £50k max

HIGH COURT

Queens Bench (H+S matters)

No upper limits (personal inj)

Element A8

SANCTIONS LIMITS

CROWN

HASAW breach – unlimited and 2years

Manslaughter – 25 years

Murder – life

Court of Appeal

Uphold or reverse decision

Element A8

SANCTIONS LIMITS

SUPREME COURT

Highest appeal in UK

Uphold or reverse

ECJ

Action corrected with EU law

Member states

Element A8

HASAWA COURTS PROCEDURES

Magistrates

HSE insp may take prosecution personally

CPS

Trials

Mag Guilty / not guilty

Case heard

Verdict

Sentence (or to crown)

Crown Case heard

Jury decides

Element A8

CIVIL ACTIONS

Civil procedures rules

High Ct and County

Alternative Dispute Resolution

ADR

Saves £250k per case

Centre for Dispute Res

94% settled

2 day mediation / 8yr court battle

Element A8

CIVIL ACTIONS

Pre Action Protocol

Personal injury

Letter of claim

Claim form – summary and detail of loss

Reply

21 days for defendant – details of insurer

Investigation

Def has 3 months

Reply sent to claimant

Admits / denies / partial

Reasons and supporting documents

Claimant decides to proceed or not

Element A8

CIVIL ACTIONS

Pre Action Protocol

Personal injury

1. Letter of claim

Claim form – summary and detail of loss

2. Reply

21 days for defendant – details of insurer

3. Investigation

Def has 3 months

Reply sent to claimant

Admits / denies / partial

Reasons and supporting documents

Claimant decides to proceed or not

Element A8

ET IN HEALTH AND SAFETY

APPEALS against Imp / Proh notices

On grounds of

Time limits for compliance

Substantive law involved

Presentation of Hearings

Applicant / Claimant – ET1

Nature of claim

Redress sought

Sent to employer

Defense replied

Appeals to EAT

H+S appeals to High Court Queens bench

Element A8

ET IN HEALTH AND SAFETY

No precedent set at Tribunals

Only COA / High Ct binding on others

Element A8

LAW OF CONTRACT

An agreement between 2 or more parties

which intended to have legal consequences

Creates legally binding relationship

Written

Verbal

Express

Terms expressly stated – verbal or written

Pay, hol, hours etc

Implied

Custom and practice

Legal obligations / duties

HASAWA

Element A8

LAW OF CONTRACT

Components of a contract

Offer and acceptance

Intention to create legally binding relationship

Meeting of minds

Legally acceptable

Consent must be genuine

Implies full knowledge

Must be possible to fulfill – realistic

Not contrary to public policy

Element A8

LAW OF CONTRACT

Voiding of contract

Mistakes

Misrepresentation

False statement of fact

Fraudulent

Negligent

Inncocent

Duress / undue influence

Without free will

Illegability

Contravenes statute / common law

Element A8

LAW OF CONTRACT

Discharging contracts

Mutual agreement

Performance – both parties have fulfilled obligations

Breach

Injured party sues for damages

Frustration

Circumstances change

Operation of law

Renders illegal

Element A8

NOTICES – LEGAL CRITERIA

Notice should be justified

Sec 22 and 23 HASAWA (21 – impr)

Served in relation to activities which are being (or likely to be) carried out under control of employer

Involves risk of serious personal injury

States inspector is of above opinion and why

Specify activities / matters which give rise to concern

Direct that activities concerned should cease immediately until concerns have been remedied

Element A8

NOTICES – LEGAL CRITERIA

Appeals

To ET

21 days of service

Grounds for appeal set out in application

Effect of appeal = to seek direction from tribunal,

suspend op of notice until appeal is disposed of /

withdrawn

Element A8

BREACH OF PROHIBITION NOTICE

s37 HASAWA

Offence has been committed with consent or

connivance of the accused (director)

Or is attributable to neglect

Person accused is director / snr mgr / or other similar

person who acts as body corporate

On conviction

Magistrates court – £5k fine / 6 months

Element A8

IMPROVEMENT NOTICES

Appeals – grounds

Inspector misinterpreted law or acted outside powers

Notice is fundamentally flawed

Based on unreasonable grounds

No contravention of legislation occurred

No real risk of serious personal injury

Breach admitted but solution not practical

Options to ET

Suspend / cancel

Affirm notice

Original or modified form

Costs to successful party

Element A8