The Law of Health
and Safety at Work
Norman Selwyn
LLM, Dip Econ (Oxon),
Barrister
Wolters Kluwer (UK) Limited
145 London Road
Kingston upon Thames
Surrey KT2 6SR
Tel: 020 8247 1175
Published by
Wolters Kluwer (UK) Limited
145 London Road
Kingston upon Thames
Surrey KT2 6SR
Tel: 020 8247 1175
First published January 1982
First Edition 1982
Second Edition 1993
Third Edition 1994
Fourth Edition 1995
Fifth Edition 1996
Sixth Edition 1997
Seventh Edition 1998
Eighth Edition 1999
Ninth Edition 2000
Tenth Edition 2001
Eleventh Edition 2002
Twelfth Edition 2003
Thirteenth Edition 2004
Fourteenth Edition 2005
Fifteenth Edition 2006
Sixteenth Edition 2007
Seventeenth Edition 2008
Eighteenth Edition 2009
N M Selwyn
The right of Norman Selwyn to be identified as the author of this work has been asserted by him in
accordance with the Copyright, Designs and Patents Act 1988.
The first edition was published by Butterworth & Co (Publishers) Ltd. All subsequent editions have
been published by Wolters Kluwer (UK) Limited.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or
otherwise, without the prior permission of Wolters Kluwer (UK) Limited or the original copyright
holder.
Crown copyright material is reproduced with the permission of the Controller of HMSO and the
Queen’s Printer for Scotland.
Although great care has been taken in the compilation and preparation of this book
to ensure accuracy, the publishers cannot in any circumstances accept responsibility for
any errors or omissions.
ISBN 978–1–85524–749–9
Printed in the UK by Hobbs the Printers Ltd.
FOREWORD
Health and safety is important in everyone’s working life. Lives and
families can be blighted by accidents and long-term ill health caused by
poorly managed work activities. Businesses and organisations that
manage health and safety well are likely to be more efficient and
financially healthier since accidents and ill health can be a major cost to
an organisation.
Obviously it is preferable for organisations to ensure the health and
safety of their employees, and others affected by their activities, because
they believe that it is fundamentally the right thing to do and hence is
embedded within the core values of the organisation. However, the law
is also there to provide guidance on the standards expected of
organisations and the individuals who work for them. The sanctions
available where organisations fall short of these expectations should and
do act as a deterrent.
The law on health and safety underpins the work of safety and health
practitioners who are often charged with helping their organisation to
understand and comply with legal requirements. A grasp of the
principles of modern safety legislation is essential. “Goal setting”
legislation places the responsibility on the creators of risks to find
cost-effective solutions to control them. The competent health and safety
practitioner enables organisations to carry out their activities safely,
efficiently and within the law.
Health and safety law is obviously a significant element in the
syllabus of the NEBOSH National Diploma in Occupational Health and
Safety. This qualification, accredited by the Office of the Qualifications
and Examinations Regulator (Ofqual) at Level 6 in the National
Qualifications Framework, is designed to provide the knowledge
iii
Law of Health and Safety at Work
underpinning competent performance as a safety professional, and
fulfils the academic requirements for admission to the Institution of
Occupational Safety and Health.
Norman Selwyn’s book is one of the most comprehensive of its kind,
not only covering the general law on health and safety but also showing
how law in other areas, such as employment and discrimination, can
impact on the practical management of safety. It deals with legislation in
a comprehensible way, clearly showing the links with non-statutory
guidance, best practice in managing safety and health, and explaining
the impact of case law on statutory duties.
Selwyn is equally enlightening in the field of civil liability. Clear
explanations are provided on employers’ and occupiers’ liability, and
case law is used to illustrate the principles involved.
Further, the chapter on particular health and safety issues gives an
up-to-date view on the development of the law in key areas. It is
gratifying that occupational health and psychosocial issues, often
neglected, are given particular emphasis in this chapter.
I have recommended previous editions of Norman’s book to
numerous students preparing for professional examinations in health
and safety over many years. I have no hesitation in similarly
recommending this latest edition. It is one of the few books in this field
which is immediately understandable to those new to the subject, and is
very readable. Changes in legal precedents and new legislation make it
essential to keep up to date. Norman Selwyn’s book is therefore an
essential reference for the experienced practitioner as well as the
student.
Teresa Budworth CFIOSH
Chief Executive
National Examination Board in Occupational Safety and Health
June 2009
iv
PREFACE
Although the subject of health and safety at work is of vital importance
to every employer, employee and self-employed person, there is an
apparent dearth of books which explain the complex legal requirements
in a manner that can be readily understood and appreciated by those
who are most affected. The aim of this book is to fill that gap. It should
be of interest to employers, company secretaries, managers, trade
unionists, safety officers, safety representatives, enforcement officers
and lawyers, as well as to students who are seeking to be in employment
in the future.
The book is intended to be a guide, not a bible. The aim is to promote
knowledge, yet at the same time to give understanding. In other words,
I have tried not only to state the law, but also to explain it. If the
consequence has been a certain amount of over-simplification, I believe
that this is a price well worth paying. However, the reader will
appreciate that when legal problems arise in practice, it may be
necessary to consult the actual statutory provisions or, where necessary,
seek expert legal advice.
Health and safety is a ubiquitous subject and it is not easy to draw
boundaries. There is no obvious delineation between health and safety
at work and health and safety generally. Road traffic, environmental
issues, consumer protection, etc all overlap with health and safety at
work. Thus I have included some material on “peripheral” matters, but
if the line has been drawn somewhat arbitrarily, it is perhaps better to do
so than not to draw one at all.
The raison d‘être of the law on health and safety at work is not always
easy to discover, for there are differing social objectives to be achieved.
The law is intended to be partly preventative, partly punitive, and partly
compensatory. The rules are an amalgam of contract, tort and criminal
law. Statutory provisions are interwoven with judicial decisions and, in
recent years, Approved Codes of Practice have assumed a greater
importance in giving practical guidance. Each industry has its own
peculiar problems. Each firm has its own difficulties. Each incident has
its own unique features. These variations make the task of preventing
accidents difficult for those involved. But however complex these
matters may be, ignorance of the legal requirements is the least excuse.
v
Law of Health and Safety at Work
The law on health and safety at work is constantly changing,
particularly with the introduction of new regulations and Codes of
Practice. Judicial interpretation of the legislation is becoming more
significant, even going so far as to extend the impact of health and safety
regulations into the fields of sex, race and disability discrimination. It is
essential for all concerned with this subject, be they employers,
employees, lawyers, students, trade union officials, etc to keep up to
date with all the latest developments and, where appropriate,
implement those aspects of the law that are relevant to their own
circumstances.
This edition includes the provisions of the Health and Safety
(Offences) Act 2008, the Regulatory Enforcement and Sanctions Act 2008
and the relevant provisions of the Employment Act 2008. There is
mention of the role of Health and Safety Awareness Officers, and recent
amendments to a number of regulations have been noted. Some 30
additional legal decisions have been added to the text, including the
important cases of R v Chargot Ltd, R v Porter, Spencer-Franks v Kellog
Brown & Root Ltd, Smith v Northamptonshire County Council, and so on.
I have tried to state the law in accordance with the sources available
to me as at 1 June 2009.
Norman Selwyn
juno@selwynfamily.co.uk
Note
In terms of the Interpretation Act 1978, unless the contrary is intended, a
reference to a male includes a reference to a female, and vice versa, and a
reference to the singular includes the plural. The Law of Health and Safety at
Work 2009/10 has followed this style for ease of reference.
June 2009
vi
CONTENTS
Table of Statutes xv
Table of Regulations and Orders xxv
Table of Cases xli
Chapter 1 1
Law and legal institutions 1
The background to health and safety law 1
Sources of law 8
The European Union 15
The judicial system in England and Wales 22
The judicial system in Scotland 28
Woolf reforms of civil procedure 29
The divisions of substantive law 31
Criminal offences 32
The overlap of the law 36
Statutory interpretation 36
Burden of proof 44
The scope of the law 45
Chapter 2 49
The institutions of health and safety 49
The role of Government 49
Health and Safety Executive 49
Advisory committees 54
Local authorities 64
Enforcement 65
Employment Medical Advisory Service (EMAS) 69
Other institutions 71
Chapter 3 75
Health and Safety at Work, etc Act 1974 75
The scope of the Act 75
Application of the Act 77
vii
Law of Health and Safety at Work
The general purposes (s.1) 80
The general duties (s.2(1)) 82
Particular duties (s.2(2)) 85
Safety policies (s.2(3)) 91
General duties owed to others (s.3) 94
General duties of controllers of premises (s.4) 98
Duty to prevent pollution (s.5) 100
General duties of designers, manufacturers, importers
and suppliers (s.6) 100
Indemnity clauses (s.6(8)) 105
Further liability of importers 106
The effect of s.6 106
General duties of employees (s.7) 106
Interference or misuse (s.8) 107
Duty not to charge (s.9) 107
Enforcement of the Act 108
Enforcement notices (ss.21-24) 108
Appeals against enforcement notices (s.24) 112
Procedure for appeals 113
Grounds for appeal 114
Application for review 123
Further appeals 124
Failure to comply 124
Power to deal with imminent danger (s.25) 124
Prosecutions for criminal offences (ss.33-42) 125
Chapter 4 139
Health and safety management 139
Management of Health and Safety at Work Regulations 1999 140
Hours of work 157
Safety representatives 170
Safety committees 185
Enforcement of the regulations 187
Employment protection in health and safety cases 189
Protection for employees in health and safety cases
(Employment Rights Act 1996, s.100) 191
Safety assistance 195
Safety consultants 198
Occupational health services 199
Directors’ responsibilities 200
viii
Chapter 5 203
General health and safety requirements 203
Employers’ liability insurance 203
Fire precautions 205
Fire (Scotland) Act 2005 213
Safety notices 214
Health and Safety (Safety Signs and Signals) Regulations 1996 215
Health and Safety Information for Employees
Regulations 1989-2009 221
Reporting of Injuries, Diseases and Dangerous Occurrences
Regulations 1995 222
Health and Safety (First Aid) Regulations 1981 226
No smoking 230
Chapter 6 233
Health and safety at the workplace 233
Workplace (Health, Safety and Welfare) Regulations 1992 233
Provision and use of Work Equipment Regulations 1998 243
Personal Protective Equipment at Work Regulations 1992 253
Manual Handling Operations Regulations 1992 259
Health and Safety (Display Screen Equipment) Regulations 1992 264
Chapter 7 271
Substances 271
Control of Substances Hazardous to Health Regulations 2002
(COSHH) (as amended) 271
Control of asbestos 278
Control of Lead at Work Regulations 2002 285
Dangerous Substances (Notification and Marking of Sites)
Regulations 1990 (as amended) 293
Notification of Installations Handling Hazardous Substances
Regulations 1982 (as amended) 294
Control of Major Accident Hazards Regulations 1999
(as amended) 294
Genetically Modified Organisms 297
Dangerous chemicals 298
Dangerous Substances and Explosive Atmospheres
Regulations 2002 299
ix
Law of Health and Safety at Work
Chapter 8 305
Physical agents 305
Ionising Radiations Regulations 1999 305
Electricity at Work Regulations 1989 308
Noise at work 309
Control of Noise at Work Regulations 2005 311
Control of Vibration at Work Regulations 2005 314
Chapter 9 317
Construction work 317
Construction industry 317
Construction (Design and Management) Regulations 2007 317
Construction (Head Protection) Regulations 1989 332
Confined Spaces Regulations 1997 333
Work at Height Regulations 2005 (as amended) 334
Lifting Operations and Lifting Equipment Regulations 1998 338
Chapter 10 343
Miscellaneous provisions 343
Health, safety and welfare in factories 343
Health, safety and welfare in offices, shops and railway premises 345
Protection of the environment 347
Food safety 347
Product safety 348
Working in agriculture 348
Offshore Safety Act 1992 350
Pressure Systems Safety Regulations 2000 350
Transportable Pressure Vessels Regulations 2001 352
Metrication 352
Chapter 11 353
Particular health and safety issues 353
Employment of women 353
Maternity rights 355
Working alone 359
Working abroad 360
Working at height 361
Immigrant workers 362
x
Sick building syndrome 364
Drug abuse 364
Alcohol at work 365
Policies for alcohol and drug abuse 366
Other illnesses 369
Acts of violence against employees 369
Agency workers 371
Homeworkers 373
Bullying at work 374
Slips and trips 377
Disabled employees 378
Work-related upper limb disorders 389
Vibration white finger 393
Acquired Immune Deficiency Syndrome (AIDS) 395
Epileptics 395
Mental illness 397
Stress at work 399
Private vehicles/private equipment 404
Young persons 405
Risk assessments 407
Health surveillance 414
Accident, incident and emergency procedures 416
Provision of instruction, information and training 416
Keeping records 418
Chapter 12 425
Compensation for injuries at work 425
Claims at common law 427
Defences to an action for damages 447
Limitations of actions 453
Damages 454
Rights against insurers 455
Vicarious liability 456
Liability of others 459
Occupiers’ liability 460
State insurance benefits 461
Other legal remedies 463
Disclosure statement in civil claims 466
xi
Law of Health and Safety at Work
Chapter 13 471
Enforcing health and safety rules 471
Appointment procedures 471
Works rules 473
Enforcing safety rules: action by the employee 483
Enforcing safety rules: action by the employer 486
Suspension on medical grounds 494
Chapter 14 497
The impact of international obligations 497
European Union 497
EU directives 500
International Labour Organization 510
Appendix A 511
Useful Addresses 511
Health and Safety Executive (HSE) 511
Appendix B 519
Publications 519
Approved Codes of Practice and legislative guidance 519
Appendix C 529
List of EU directives relating to health and safety 529
Framework directive 529
Daughter directives 529
Hazardous materials 530
Transport of dangerous goods 531
Construction 532
Safety signs 532
Temporary workers 532
Pregnant and young workers 532
Ionising radiations 532
Physical agents 533
Other relevant EU documents 533
Proposed EU directives 533
New Approach Technical directives 534
xii
Appendix D 537
Glossary 537
Subject Index 543
xiii
