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SFA EMPLOYMENT LAW

GUIDELINES

Health and Safety

9 Introduction
This Guideline provides a summary of the principal responsibilities under legislation
and common law in relation to occupational health and safety.

HEALTH Safety at work is the responsibility of everyone in the workplace. This includes
not only the employer and the employee but also the self employed, those who
AND control premises, those who design, produce and provide articles or substances for
SAFETY use at work and those who design or construct places of work.

LEGAL to provide employees with safe plant and

RESPONSIBILITIES machinery;
There are three main sources of law in health and to provide competent staff.
safety. These include the law enacted by the
Oireachtas and includes EU Directives; common law; In addition to the above, an employer may be
and the Constitution. found to be liable for the careless action of one
employee which causes injury to another employee.
The following acts represent the most important This is known as ‘vicarious liability’.
sources of law on safety in industry:
Other aspects of safety law include EU Directives
Safety, Health and Welfare at Work Act, 2005 that become Irish Regulations and cover the
Personal Insurance Assessment Board (PIAB) following:
Act, 2003
Civil Liability & Courts Act, 2004 Workplace
Work equipment
There is also a large number of regulations made Personal protective equipment
under the above legislation as well as EU Directives Manual handling
adopted into national law. Display screen equipment
Electricity
Common law is the second major source of law and First aid
this is made up of judges’ decisions over a number Accident reporting
of years. This law generally fills the gap for Protection of Children and Young Persons
Copyright 2006 Protection of Pregnant, Post Natal and
workers who are not covered by safety legislation.
Published by Breastfeeding Employees
the
Small Firms Association It is also additional to current legislation as it
Night work & shift work
applies to all workers.
84/86 Lower Baggot Street Safety Signs at Places of Work
Dublin 2
Explosive atmospheres
Telephone: 01 605 1500 Under common law, an employer can be found
Working at height
Fax: 01 661 2861 guilty of negligence where s/he fails in one or more
E-mail: info@sfa.ie Control of Vibration at Work
of the following duties of care:
Website: Control of Noise at Work
www.sfa.ie
Construction
This guideline is not a substitute to provide employees with a safe system of
for industrial relations and/or
work;
legal advice where
appropriate.
The guideline may to provide employees with a safe place to work
need
adaptation to suit the (including safe means of access and egress);
particular
circumstances of
individual
organisations. Members are
invited to consult the SFA in
this regard.
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SFA EMPLOYMENT LAW
GUIDELINES
HEALTH AND SAFETY
THE LEGAL
SYSTEM
The primary legislation in place to cover health and safety in
Ireland is the Safety, Health and Welfare at work Act, 2005. From also clearly defines what an employer is including a "person in
this there are subsequent regulations that each deal with
separate topics and hazards in greater detail.
All modern health and safety legislation is based upon the
concept of risk assessment and many, including the Act,
specifically state that the first thing an employer should do is
make an assessment of the task and from this implement controls. manner.
Again this reflects the shift in legislative control to putting the
emphasis on preventing accidents and ill health and to managing
any problems based upon your own assessment of their impact
and significance.
SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005
This Act deals with the protection of the safety health and
welfare of all persons at work. It applies to employers and self-
employed, manufacturers, suppliers and importers. The Act
contains provisions in respect of persons in control of workplaces
and employees. The Act came into operation on 1st September,
2005.
Scope
The Act applies to every workplace; to all persons at work
including temporary and part-time employees and to self-
employed persons. 'Employee' under the Act means a person who
has entered into or works under a contract of employment.
Contracts of employment include apprenticeships and may be
expressed or implied, oral or in writing.
The definition for workplace is very broad. "Place of work"
includes any, or any part of any, place (whether or not within the
forming part of a building or structure), land or other location at,
in, upon or near which, work is carried on, whether occasionally
or otherwise. Specific examples given in the Act are:
A tent, temporary structure or movable structure
A vehicle, vessel or aircraft
There is also provision for the extraction industry whether
onshore or offshore.
Key Provisions
General Duties of Employers:
The Act specifies the general duties of employers to employees. It
control of the place of work". This clearly classifies all supervisors
and managers as employers and as such, the following duties
apply to them in so far as they have the power to so. These duties
may be summarised by an overall duty to ensure, so far as is
reasonably practicable, the safety, health and welfare of all his
employees by managing and conducting work activities in a safe
Specific duties are:
To design, provide, maintain and operate a place of work
which is safe and without risk to health.
To provide safe means of access to and egress from a place of
work.
To provide and maintain plant and equipment which is safe
and without risk to health.
To prevent risk to health at work relating to the use of any
article or substance or to the exposure of noise, vibration or
ionising or other radiations or any other physical agent.
To provide and maintain systems of work which are planned,
organised, performed, maintained and revised as appropriate
so as to be safe and without risk to health.
To provide and maintain appropriate welfare facilities.
To provide the information, instruction, training and
supervision necessary for safe and healthy working.
Take account of changing circumstances in relation to risk
assessment and the safety statement.
Where hazards cannot otherwise be eliminated or
adequately controlled, to provide and maintain suitable
protective clothing or equipment.
To prepare adequate emergency plans.
To prevent risks to health and safety in relation to use of
articles or substances in the workplace.
To report accidents and dangerous occurrences.
To acquire, when necessary, the services of a competent
person to ensure the safety and health at work of employees.
To co-operate with other employers.
All the above duties are expressed in such a way that the
provision is one which obliges the employer to comply with the
particular requirement 'so far as is reasonably practicable'.
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SFA EMPLOYMENT LAW
GUIDELINES
HEALTH AND SAFETY
Section 81 of the Act states that in any proceedings for an
offence where the failure is deemed to be one arising from a
duty to do something `so far as is reasonably practicable' it is for
the accused to prove that there were no better practicable means
than those employed or that it was not reasonably practicable to
do more than was done to prevent any particular incident or
circumstance arising.
"Reasonably Practicable"
"So far as is reasonably practicable" is the standard to which an
employer must ensure the safety, health and welfare of its
employees. Therefore where problems are identified in the risk
assessments, they must be controlled to reduce the risk to as low
as is reasonably practicable.
Although elimination of the hazard is the best way to control
risk, it isn’t always possible to do this. By looking at all the
options for controlling a risk the assessor and company can find a
control that reduces the risk to a tolerable level and is workable
given resources, finance and working practices. To be effective,
the controls identified and implemented should be proportionate
to the level of risk identified. Deal with the significant risks as a
priority and put in the most resources to controlling these.
The 2005 Act defines "Reasonably Practicable" as:
‘For the purposes of the relevant statutory provision, "reasonably
practicable", in relation to the duties of an employer, means that
an employer has exercised all due care by putting in place the
necessary protective and preventative measures, having identified
the hazards and assessed the risks to safety and health likely to
result in accidents or injury to health at the place of work
concerned and where the putting in place of any further
measures is grossly disproportionate having regard to the
unusual, unforeseeable and exceptional nature of any
circumstance or occurrence that may result sin an accident at
work or injury to health at that place of work’.
Duties to Persons Other than Employees:
The Act places duties on employers to manage and conduct their
undertakings in such a way that they ensure so far as is
reasonably practical that in the course of work being carried on,
individuals at the place of work (not being their employees) are
not exposed to risks to their safety, health or welfare. The self-
employed have a similar duty.
Persons who have control of a place of work have specific duties
to persons who are not their employees. These include duties to
provide for safety and health in relation to the place of work,
means of access and egress and articles or substances provided for
use at the workplace. These duties must be met by the person in
as much as it is reasonable for that person to do so.
Employee Duties:
Employees are required under the Act to:
Comply with relevant statutory provisions.
Take reasonable care for their own safety, health and welfare
and that of others who may be affected by their acts or
omissions.
Ensure that they are not under the influence of an intoxicant
to the extent that they are in such a state as to endanger
their own safety or that of others.
Where appropriate submit to any appropriate, reasonable
and proportionate tests for intoxicants if required by their
employer.
Co-operate with their employer in relation to compliance
with statutory requirements under this and other safety laws.
Not engage in improper conduct or other behaviour that is
likely to endanger their own safety, health and welfare or
that of others.
Attend such training, and as appropriate, undergo such
assessment as may be reasonably required by their employer
(or as may be prescribed) in relation to health and safety.
Employees cannot misrepresent themselves with regard to
the level of health and safety training they have previously
acquired.
To use protective equipment clothing or other means
provided for securing safety, health and welfare.
To report, without delay, any defects in workplace plant,
equipment or systems of work which may involve danger and
of which the employee becomes aware.
To report any work being carried on, or likely to be carried
on, in a manner which may endanger the safety, health or
welfare of any person or any contraventions of the law.
Ensure that they do not intentionally or recklessly interfere
with or misuse any means or thing provided for safety, health
or welfare of persons at work.
This duty extends to non-
employees.
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GUIDELINES
HEALTH AND SAFETY

Manufacturers, Designers, Importers and Suppliers: Safety Consultation:

There are specific duties on manufacturers, designers, suppliers or The provisions for consultation under the Act have been signifi-
importers to take account of safety and health of persons who
may use their products at work. This includes a duty on
manufacturers etc. to carry out adequate testing, and provide
specific safety and health information for users of their products.
Safety Statement:
The Act requires any employers (with more than 3 employees) to
prepare a safety statement and bring its terms to the attention of
persons affected by it. Self-employed persons and businesses with
3 or less employees, have to observe the terms of a Code of
Practice in relation to safety statements. The Safety Statement
must be reviewed when there has been significant change in the
matters to which it refers, it is no longer valid or an inspector
directs that it be reviewed.
Safety statements must be based on an identification of hazards
and an assessment of risks at the particular place of work to
which the statement relates.
cantly increased from the 1989 Safety, Health and Welfare at
Work Act. It requires that employers consult employees for the
purpose of co-operation in promoting and developing health,
safety and welfare at work. A number of specific issues are
prescribed in the Act where consultation must take place with
employees in advance and in good time. These include:
Measures proposed to be taken which may substantially
affect the safety, health and welfare of employees
The designation of employees for first-aid, fire-fighting etc.
Hazard identification and risk assessment and prevention of
risks
Preparation of the safety statement
Information to be provided and information to be kept or
notified to the HSA
Appointment of a competent person
Planning and organisation of training
Planning and introduction of new technologies that may
affect health and safety.

The statement must specify (detail) safety, health and welfare

Employees have the individual right to make representations to
arrangements, resources, co-operation required from employees
their employer on safety, health and welfare issues and the
and the names and job titles of persons responsible for the tasks
employer, must, as far as is reasonably practicable, take account
set out in the statement.
of any such representations. There are also a number of
provisions for Safety Committees under Schedule 4 of the Act.
The employer must bring the safety statement to the attention of
employees at least annually
and whenever any changes are
Safety Representative:
made. They must also bring it to the attention of newly recruited
Employees may select a person to represent them on safety,
staff on commencement of employment and any other person
health and welfare issues. This person will, where selected, be
who may be exposed to any risk at the place of work. When
known as the Safety Representative.
bringing the safety statement to the attention of employees, it
must be in a form, manner and, as appropriate language that is
Safety Representatives have a number of specific rights under the
reasonably likely to be understood. Considerable detail regarding
Act. These include the right to make representations to the
specific risks and in particular the protective and preventive
employer on any aspects of safety, health and welfare at work, to
measures put in place to control the risk must be brought to the
investigate accidents, dangerous occurrences and complaints and
attention of relevant personnel.
to receive from his employer such information as is necessary to
ensure the safety and health of employees.
An inspector of the HSA may require it to be revised, where they
are satisfied that there is some material inadequacy in the
A Safety Representative may inspect the workplace at an agreed
statement. The employer must comply within thirty days.
frequency and may accompany an inspector (at the discretion of
the inspector) on a tour of inspection or during an accident
An evaluation of the degree of compliance with the terms of the
investigation. The Act requires employers to consider and if
statement must be provided with the annual accounts of those
necessary, act upon any representations made by a Safety
companies to which Section 158 of the Companies Act, 1963
Representative.
applies.
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GUIDELINES
HEALTH AND SAFETY

Employers are obliged under the Act to facilitate the release for Any person found guilty of certain offences may get up to 6
training, without loss of remuneration, person(s) involved in any months imprisonment on a summary conviction and up to two
agreed consultation activities and the Safety Representatives. years imprisonment in the case of certain offences for which a
person is convicted on indictment.
The Health and Safety Authority
The Health and Safety Authority was established in 1989. The Principles of Prevention
Reporting to the Minister for Enterprise, Trade and Employment, 1. The avoidance of risks.
the Authority has the duty to enforce the provisions of the Act 2. The evaluation of unavoidable risks.
and any related safety and health legislation. It also has a range 3. The combating of risks at source.
of other functions in the health and safety area such as the 4. The adaptation of work to the individual, especially as regards
provision of advice, promotional activities in relation to the design of places of work, the choice of work equipment and
promoting safe working practices, provision of information and the choice of systems of work, with a view, in particular, to
the undertaking of research. alleviating monotonous work and work at a predetermined work
rate and to reducing the effect of this work on health.
Enforcement: 5. The adaptation of the place of work to technical progress.
The legislation provides that inspectors of the Health and Safety 6. The replacement of dangerous articles, substances or systems of
Authority may enter at all times, any workplace, and inspect work by safe or less dangerous articles, substances or systems of
documents, books, registers and the physical environment. work.
Various enforcement notices may be used: 7. The giving of priority to collective protective measures over
Improvement Directions individual protective measures.
Improvement Notices 8. The development of an adequate prevention policy in relation
Prohibition Notices. to safety, health and welfare at work, which takes account of
technology, organisation of work, working conditions, social
In the case of theImprovement Direction
the Inspector will factors and the influence of factors related to the working
require submission of a plan to remedy a particular hazard within environment.
a given time. 9. The giving of appropriate training and instructions to
employees.
AnImprovement Noticemay be issued if specific contravention
is noted by an Inspector or if a person fails to provide a plan
Breaches of Safety - Disciplinary Issues
requested in an Improvement Direction. An employer may appeal Implementation of a company’s safety policy should be under-
against an Improvement Notice. The appeal must be made to the pinned by the company’s disciplinary procedure. Employees
District Court within 14 days. The notice may not take effect until should be aware that a breach of safety regulations will be
after the Court ruling or the expiry of the appeal period. treated as misconduct and that action will be taken in accordance
with the disciplinary procedures. The safety rules should make it
AProhibition Noticemay be issued to halt an activity which clear that certain particularly dangerous practices or continued
presents a risk of serious personal injury. The notice may take disregard for safety may jeopardise an employee’s job security.
effect immediately if the inspector wishes. A Prohibition Notice
may be appealed to the District Court within 7 days but continues FIRE SERVICES ACT, 1981
in force during the appeal period and until the Court ruling is
made. This is the main fire safety legislation covering both industrial and
public safety. The Act was amended by the Safety, Health &
Penalties: Welfare Act Work Act, 1981 to include factories. Fire safety
The penalties for offences under the Act are: inspections in the workplace are carried out by fire officers of the
€3,000 maximum fine per offence on summary conviction local authorities. The standards they work are defined by the
€3 million fine in the case of conviction on indictment. Department of the Environment. The fire officers have latitude to
request a wide range of fire safety precautions and are
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GUIDELINES
HEALTH AND SAFETY

empowered to request Court orders to prohibit the use of a
premises where they feel there is imminent danger from fire.
They may require that training be provided, request the
nomination of an appropriate person or persons in the building
to have responsibility for fire safety measures.
Personal Injuries Assessment Board (PIAB)
The PIAB was set up in 2004 to tackle the high costs of delivering
personal injury compensation. PIAB is a statutory body which
provides independent assessment of the financial value of
compensation. It does not deal with the matter concerned with
liability or negligence.

COMMON LAW Further detailed information on the PIAB is available to download

on www.sfa.ie or www.piab.ie
Perhaps the most significant area which has implications for
employers is the area of common law. This is because most claims
for personal injury following an accident at work contend that anHEALTH AND SAFETY
employer has failed in ore or more of his/her common law duties. CONTACTS
Health and Safety Authority
Employers should ensure that they have the following points The Metropolitan Building
covered: 6th Floor, James Joyce Street
Dublin 1
Specify how the health and safety of your employees will be Tel: LoCall: 1890 289389
ensured. Website: www.hsa.ie
Give details of how you are going to manage your
employee’s health and safety including your commitment to Department of the Environment, Heritage and Local
complying with your legal obligations, the resources provided Government
and the arrangements you are implementing for this be Custom House
based on an identification of the hazards and an assessment Dublin 1
of the risks in your workplace.
Tel: LoCall: 1890 202021 or (01) 8882000
Specify the co-operation required from employees on health
Website: www.environ.ie
and safety matters.
Include the names and job titles of people appointed with
National Standards Authority of Ireland
responsibilities for health and safety.
Glasnevin
Contain the arrangements for consultation with employees
Dublin 9
on health and safety matters.
Tel: (01) 8073800
Include details of information available to associates on
health and safety. Website: www.nsai.ie
The safety statement should take account of all the health
and safety legislation that applies to the company. *Government Publications Office
Molesworth Street
Dublin 2
EMPLOYER Tel: (01) 6476000
LIABILITY Website: www.irishstatutebook.ie
Where an employee’s injury or disease can be shown to have
arisen from the negligence of the employer or an agent of the *A current list of Acts, Orders and Regulations may be obtained
employer, the employee may win compensation from the from the HSA and the documents themselves may be purchased
employer in a civil action for damages. Compensation awarded in through the Government Publications Office. Guidelines to the Acts
these cases is usually met by the employer’s liability insurance. and Regulations are also available in many cases from the HAS.
The cost of this insurance varies widely and is dependent on the
company’s record and the type of process involved. Employer’s For further information, including guidance on writing a safety
liability insurance is not compulsory. statement, employers should log on to www.sfa.ie