The Legal Framework for Health and Safety
Sub-divisions of law
There are two sub-divisions of the law that apply to health and safety issues: criminal law and civil law.
Criminal law consists of rules of behavior laid down by the Government or the State and, normally, enacted by Parliament through Acts of Parliament. These rules or Acts are imposed on the people for the protection of the people.
Criminal law is enforced by several different Government Agencies who may prosecute individuals and organizations for contravening criminal laws. It is important to note that, except for very rare cases, only these agencies are able to decide whether to prosecute an individual or not.
An individual or organization who breaks the criminal law is deemed to have committed an offense or crime and, if he/she is prosecuted, the court will determine whether he/ she is guilty or not. If the individual is found guilty, the court could sentence him/her to a fine or imprisonment.
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Owing to this possible loss of liberty, the level of proof required by a Criminal Court is very high and is known as proof ‘ beyond reasonable doubt’, which is as near certainty as possible. Although the prime object of a Criminal Court is the allocation of punishment, the court can award compensation to the victim or injured party.
One example of criminal law is the Road Traffic Act, which is enforced by the police. However, the police are not the only criminal law enforcement agency. The Health and Safety at Work (HSW) etc. The act is another example of criminal law and this is enforced either by the HSE or Local Authority Environmental Health Officers (EHOs). Other agencies which enforce criminal law include the Fire Authority, the Environment Agency, Trading Standards and Customs and Excise.
There is one important difference between procedures for criminal cases in general and criminal cases involving health and safety. The prosecution in a criminal case has to prove the guilt of the accused beyond reasonable doubt.
Although this obligation is not totally removed in health and safety cases, section 40 of the HSW Act 1974 transferred, where there is a duty to do something ‘ so far as is reasonably practicable ’ or ‘ so far as is practicable ’ or ‘ use the best practicable means ’ , the onus of proof to the accused to show that there was no better way to discharge his/her duty under the Act.
However, when this burden of proof is placed on the accused, they only need to satisfy the court on the balance of probabilities that what they are trying to prove has been done.
The civil law concerns disputes between individuals or individuals and companies. An individual sues another individual or company to address a civil wrong or tort (or delict in Scotland). The individual who brings the complaint to court is known as the claimant or plaintiff (pursuer in Scotland), and the individual or company who is being sued is known as the defendant (defender in Scotland).
The Civil Court is concerned with liability and the extent of that liability rather than guilt or non-guilt. Therefore, the level of proof required is based on the ‘ balance of probability’, which is a lower level of certainty than that of ‘ beyond reasonable doubt ’ required by the Criminal Court.
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If a defendant is found to be liable, the court would normally order him/her to pay compensation and possibly costs to the plaintiff. However, the lower the balance of probability, the lower the level of compensation awarded. In extreme cases, where the balance of probability is just over 50%, the plaintiff may ‘ win ’ the case but lose financially because costs may not be awarded and the level of compensation is low.
The level of compensation may also be reduced through the defense of contributory negligence, which is discussed later under Section 1.8. For cases involving health and safety, civil disputes usually follow accidents or illnesses and concern negligence or a breach of statutory duty. The vast majority of cases are settled ‘ out of court’.
Although actions are often between individuals, where the defendant is an employee who was acting in the course of his/her employment during the alleged incident, the defense of the action is transferred to his/her employer – this is known as vicarious liability. The civil action then becomes one between the individual and the employer.
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The Employers ’ Liability (Compulsory Insurance) Act makes it a legal requirement for all employers to have employers ’ liability insurance. This ensures that any employee, who successfully sues his/her employer following an accident, is assured of receiving compensation irrespective of the financial position of the employer.
There is a maximum penalty of up to £ 2500 for every day without appropriate cover for employers who do not have such insurance. In addition, one or more copies of the current certificate must be displayed at each place of business and be ‘ reasonably protected ’ from being defaced or damaged.
Recently, the rules requiring an employer to display the certificate have changed, so that the requirement will be satisfied if the certificate is made available in electronic format and is reasonably accessible to relevant employees.