Health and Safety Laws, Regulations and Codes of Practice
Electricity, water and a metal ladder. What could possibly go wrong?

Health and Safety Laws, Regulations and Codes of Practice

Most UK health and safety law comes directly or indirectly from the 1974 Health and Safety at Work Act. I'll come to that in a minute. But first I'd like to mention two other sources of H&S law - the 1996 Employment Rights Act and European Framework Directives.

The Employment Rights Act

The Employment Rights Act of 1996 (as amended) is a long and complicated piece of legislation, but it does contain a very important series of H&S rights in sections 44 and 45A. 

The right to leave an unsafe area

If an employee has a "reasonable belief" that they are in "serious and imminent" danger (that they could not reasonably be expected to avert) then they may leave that area until it is made safe. The employer may not take action against the employee for leaving the area or refusing to return until the area is made safe. As always, the devil is in the detail and only a court can decide whether an someone's belief was reasonable and whether the danger was (or was believed to be) both serious and imminent. It would also depend on how the court viewed the individuals ability to deal with the supposed danger - e.g. because of training, equipment, assistance from others and so on. There would also be an obligation to bring the danger to the employer's attention as well as others who might be at risk.

The right to take steps to protect oneself and others from "serious and imminent danger"

If an employee reasonably believes that they or others are in serious and imminent danger, they have a right to take such steps as are "appropriate" to protect themselves and others. For example, if an employee smelled smoke and believed that there was a danger of a fire - they would be justified (and protected from action by the employer) if they evacuated the area, even if it later was shown that there had not been a fire. The 1996 Act would not protect the employee if it was later shown that their actions were malicious or a form of unofficial industrial action.

The right of health and safety representatives to carry out their recognised functions

Health and safety reps have more legal rights than shop stewards. ERA does not give an automatic right for a H&S rep to do whatever they want, whenever they want - but there is a general right to carry out such functions as may be necessary to protect union members. For this to apply, normally there would be a requirement that -

  • The union is already recognised
  • The H&S representative has been duly elected and that their credentials are in date and also that they are not suspended by their union
  • The H&S representative has completed (and passed) their mandatory stage one H&S course
  • The Company has been notified by the union of the H&S rep's election and that they have been issued with credentials

ERA also protects the employee from action taken by the employer because they are a H&S rep or because they have stood or proposed to stand as a H&S rep.

The right of persons appointed to carry out such health and safety functions as they are directed by their employer

This should be straightforward - but how many managers, health and safety advisors and so on are reluctant to do something about an unsafe condition or work practice because it would cost money or disrupt the business? ERA says that the employer can't take action against them because they did something about safety that was in their job description or that they had been asked to do.

The Working Time Directive

The Working Time Directive (WTD) is a European Framework Directive (i.e. a piece of European legislation that must be made law in EU member states) but it is the Employment Rights Act that protects the employee from action by the employer for claiming their rights under the WTD. If the employer insists that an employee breach the WTD, they cannot take action against the individual if they refuse.

The British version of the WTD is slightly different from some other European countries in that the UK opted out of the 48 hour maximum working week (averaged over a period of several months) but unless the individual has signed a form to ask to be allowed to work for more than 48 hours (average) then they can not be forced. Neither employer nor a union can take away the individual's right to not work more than an average 48 hour week.

European Framework Directives

As mentioned in the last section, a framework directive is a law created by the European Parliament that must be introduced in all the countries that have membership of the EU. But how the individual state implements that directive is (within certain limits) a matter of choice.

However if the national law of an EU country does not meet the requirements of the directive, there are certain challenges that can be made through the European Courts. For anyone whose wages are paid from the public purse, it may be possible to take the employer to court to demand that the terms of the directive are applied - even if the wording of the national law differs from the European version. For other workers the process is more complex and the national law must be challenged in the EU courts before an employer can be accused of breaking it.

There are of course exceptions. The UK managed to successfully opt out of the 48 hour maximum working week required by the Working Time Directive, in part because it argued that the National Health Service would not be able to cope if junior doctors did not work substantially more. The EU has become increasingly unsympathetic to these arguments as time has gone on.

Key European H&S Directives

Directive 89/391 - Measures to encourage the improvement of the H&S of workers at work. This directive resulted in the Management of Health and Safety at Work Regulations and its five sets of daughter regulations (collectively known as the "six-pack") An important line in this directive is that "workers and their representatives must be informed of the risks to their safety and health" which gave us risk assessments and the right to safety information.

Directive 92/85 - Measures to improve the H&S of pregnant women, new mothers and breastfeeding mothers at work. This amended the Management Regulations (six pack), introduced a right to refuse to work nights (in some circumstances) and introced the requirement for a "new and expectant mothers risk assessment" to be carried out (and reviewed) for pregnant women and new mothers on an individual basis.

Directive 93/104 - Early version of the Working Time Directive. Some parts still in force, other bits amended

Directive 94/33 - Protection of young people at work. Impacted on the six-pack and the WTD

Directive 2002/15 - Working Time amendment. Specific requirements for drivers of road vehicles

Directive 2003/88 - Working Time (another amendment)

The HLC strongly advises against using your (or our) understanding of the law to tell members of "their rights." Being wrong can be expensive. However, it is worth letting management know that you are not completely ignorant of the legal framework to help you negotiate on behalf of the membership.

Why we need Health and Safety Laws

Accident Reporting and Investigation