7387051
Description
Flashcards by Mike Doran, updated more than 1 year ago
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Created by Mike Doran
over 7 years ago
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| Question | Answer |
| What are the legal requirements to manage H&S? | HASAWA 1974 S2 Management of HASAW Regs |
| What enforcement agencies are there and what action can they take? | HSE Local Authority (EHO) Office of Road & Rail (ORR) They can serve prohibition notices (stopping a work activity which poses an immediate risk) Can serve Improvement Notice for action to be taken to achieve legal compliance within a set time, usually 2 weeks. Can also take punitive action to prosecute offenders |
| Describe civil law | Civil Law Liabilities: Consist of a county court and high court. The claimant has to site a tort (civil wrong doing). Examples are deformation, nuisance, breach of statutory duty or negligence. In regards to health & safety, this can be a tort of negligence or a tort of breach of statutory duty. Neighbour Principle: The principle was established in the case of Donoghue vs Stevenson (1932), also known as the ‘Paisley Snail’ or the ‘Snail in the bottle case. This occurred when Mrs Donoghue was drinking a ginger beer in a café when she became ill from it. It was not noticed by the café owner that there was a snail in the bottle. Mrs Donoghue sued the owner and the neighbour principle was established. ‘Where a duty of care does not exist, we shall owe a reasonable duty of care to our neighbours’. |
| What is the DEREGULATION ACT? | Became Law in March 2015 Aims to remove burdens on businesses, civil society, individuals Also repeals legislation that is no longer of practical use Example 1 - Limits general duty on the self-employed (S3 HASAWA) to those carrying outactivities only on a prescribed list Example 2 - Extends the exemption of turban wearing Sikhs from wearing a safety helmet from construction sites to all workplaces (unless in emergency situations - riots, fire, etc) |
| What is the legislation and requirement of a H&S policy? | S2(3) HASAWA 1974 * Must be written if 5 or more employees * SoI * Organisation * Arrangements (R5 MHASAW) - Planning - Organisation - Control - Monitoring - Review |
| What are the two sources of law? | 1. COMMON LAW Dates back to Henry II but is now understood to mean law that is not the result of legislation but created by the custom of the people and the decisions of judges 2. STATUTE LAW Since AD600 but is the ultimate source of law and is dominant over common law. It is often created to rectify deficiencies in common law. A statute stands as law until repealed by Parliament |
| What is criminal law? | If minimum legal standards are not met, the enforcing authority ay prosecute the offender in the criminal courts. PREVENT HARM ARISING FROM WORK ACTIVITIES Criminal Law Defences: In order to form a defence under criminal law, the following points have to be considered: Individuals must prove they took all reasonable care. Employers must prove they took all reasonable foreseeable precautions. Due diligence must have been exercised. The accused must prove that it was not reasonable or reasonably practicable to do more. |
| Difference between EU Directive and EU Regulation? | EU DIRECTIVE A legislative act which sets goals which each member state must implement. However it is up to each member how they do this. E.g. The Framework Directive from which the Management Regs were born. EU REGULATION Must be implemented 'as is'. E.g. REACH and CLP |
| Difference between civil and criminal law? | CIVIL LAW Action is taken by an individual Looks for compensation A loss or damage must have been suffered Heard in the civil court Can be insured against (ELI) Burden of proof based on balance of probabilities CRIMINAL LAW Action is taken by an enforcing auth such as HSE or CPS Action taken against individual or organisation Punitive action (prosecution) is the aim No loss or damage need to have occurred, just a breach of legislation Heard in the criminal court Decision by jury Can not be insured against Burden of proof - Must be proven beyond all reasonable doubt |
| Explain ABSOLUTE & QUALIFIED duties | ABSOLUTE Must be done, e.g. Thorough Inspections, written policy (5 or more employees) QUALIFIED Practicable - feasible in the light of current knowledge and invention, i.e. if it can be done, it must be done. Reasonably practicable - a balance of the severity/risk against time, effort and money |
| Criminal Law - What must be considered when raising a defence? | Individuals must prove they took all reasonable care. Employers must prove they took all reasonable foreseeable precautions. Due diligence must have been exercised. The accused must prove that it was not reasonable or reasonably practicable to do more. |
| Double barrelled action | Double Barrelled Actions This is where a claimant can claim under both tort of negligence and tort of breach of statutory duty, but only one claim can succeed and only one award of compensation can be made. |
| Vicarious liability | An employer can be held vicariously liable for an unauthorised negligent act by one of his employees. If an employee commits an offence at work under the direction of the employer, the employer is wholly responsible, even if the employee was forbidden to do something. The employee however, still has a duty to take reasonable care of themselves. |
| Compensation | There are two categories of compensation: General – For non monetary losses e.g. pain and suffering, and Special – for financial losses. E.g. medical costs, loss of earnings. |
| Employment tribunals | Employment Tribunals consist of a legally qualified chairperson, and 2 lay members. They deal mainly with victimisation and discrimination cases, but also deal with: Appeals again enforcement notices, complaints from H&S reps, dismissals following a breach, claims for detrimental treatment. |
| Hierarchy of Statute Law | Acts Known as primary legislation Passed by houses of parliament. Lay down general duties and make provisions for regulations and ACOPS Regulations Delegated legislation made under HASAWA, by the secretary of state often for EU directives. Consultation is taken with the HSE and other interested parties. Breaches under the regulations can lead to enforcement notices. ACOP’s produced by the HSE with consent from secretary of state. Help to interpret how to comply with legislation. One ACOP per specific regulation. Not legally binding but can be used as evidence in court. ACOP’s have ‘quasi legal’ status – meaning an obligation invoked by law in the absence of an agreement. ACOP’s are easier to amend than legislation, so guidance can be given to industry more expeditiously. Guidance HSE guidance notes are there to give a greater understanding of a certain regulation or a requirement (best practice). No legal standing and cannot be used in court. |
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