Covers: the provisions of the Safety, Health and Welfare at Work Act 2005 including the safety statement, general duties, employees' rights and duties, and penalties; the Safety, Health and Welfare at Work (General Application) Regulations 2007, bullying, sector specific legislation and recent developments.
Health and safety legislation is a distinct branch of legislation within the broad field of employment related legislation. Whereas most areas within the field of employment legislation consist of an Act and a few Statutory Instruments (Regulations), over 20 different Acts of the Oireachtas (Parliament) and more than 200 Statutory Instruments make up the body of health and safety legislation.
Of the 220 Acts and Statutory Instruments that make up the body of health and safety law the most important are the framework Act, the Safety, Health and Welfare at Work Act 2005 and the Safety, Health and Welfare at Work (General Application) Regulations 2007. Both apply across the spectrum of employment sectors.
There is specific health and safety legislation relating to mines and quarries, dangerous substances, the carriage of dangerous goods by road, railways and chemicals. As well as Acts and Statutory Instruments, there are a number of Codes of Practice which have a legal status. A Code with significant cross sectoral relevance is the Code on the Prevention of Bullying in the Workplace.
While the various Acts and Statutory Instruments are national measures, modern Irish health and safety legislation is derived from European Directives and, while some details may be different, any person from another Member State of the European Union will find that the legislation is similar to that in their own country.
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Safety, Health and Welfare at Work Act
The Safety, Health and Welfare at Work Act 2005 applies to all workplaces. What is a workplace is defined in the Act. As well as normal fixed workplaces, the definition defines vehicles, vessels and aircraft as workplaces.
The Act establishes the Health and Safety Authority (HSA) as the national agency responsible for the enforcement of health and safety legislation, the promotion of health and safety and for advising the government on health and safety legislation.
The Act requires every employer to:
- Identify the hazards of the workplace.
- Carry out and be in possession of a written risk assessment.
- Put in place protective and preventative measures to eliminate the hazards or, if that is not possible, to reduce them to the lowest possible level.
Every employer is required to have a written safety statement, which should set out the hazards identified, the risks assessed and the protective measures taken to protect the safety, health and welfare of employees. The statement should also set out the plans and procedures to be followed in the event of an emergency.
The safety statement should set out the names and job titles of persons with health and safety responsibilities. People with safety responsibilities are required to be competent. Competency is an important issue when appointing a person to a health and safety role. Competency is defined by reference to the training, experience and knowledge of the person carrying out the task assigned, having regard to the size and hazards of the undertaking.
When risks change, the safety statement should be reviewed.
Safety statements must be brought to the attention of employees and others who may be affected by the risks, for instance, contractors on site.
The Act provides that employers employing three or fewer employees can, if the HSA has approved a Code of Practice for a sector, adopt the Code for their sector as their chosen method of managing health and safety instead of drawing up a safety statement. The HSA has drawn up Codes for:
- Contractors (construction) with three or fewer employees
- Road works contractors with three or fewer employees
While adopted under a different provision of the Act, the HSA also has developed an Agriculture Code that farmers can use as a safety statement.
Additionally, the HSA has developed an online hazard identification and risk assessment tool for small businesses, known as BeSMART, which can be used by over 200 types of businesses to draw up their safety statements.
The Act imposes a range of general duties on employers, who are required to:
- Manage work to ensure the safety, health and welfare of employees.
- Manage work activities to prevent improper conduct. An example often mentioned is bullying.
- Design and maintain workplaces so that they are safe and without risk to health.
- Provide a safe means of access and egress from workplaces.
- Ensure plant, equipment and substances are safe and without risk to health.
- Ensure safe systems of work.
- Provide and maintain facilities for welfare.
- Provide information, training and supervision for employees in a language or form that they can understand.
All of these provisions are subject to the test: Are they reasonably practicable? The Act defines the term reasonably practicable. Basically for an employer to decide not to take a protective measure, they would have to justify their decision on the grounds that the cost of protective measure would be grossly disproportionate to the chance of an accident occurring or an illness being suffered.
Other duties imposed on employers are to:
- Co-operate where they share workplaces.
- Provide health surveillance for employees, if it is identified as being necessary.
- Consult with employees or their representatives about health and safety issues.
- Not penalise employees because of actions taken by them in relation to their health and safety rights.
Obviously, employees are entitled to expect that employers will take the measures necessary in accordance with the law to protect them from injury and illness.
Employees are entitled to be consulted on matters relating to health, safety and welfare. They are entitled to choose from among their number a representative to represent them in consultations in relation to health and safety.
Employees are required to:
- Comply with statutory requirements and to take reasonable action to protect themselves and others who may be affected by their acts or omissions.
- Ensure they are not under the influence of an intoxicant, such as drugs and alcohol including prescription drugs, so as to endanger themselves or others.
- Co-operate with their employer so that the employer can comply with statutory requirements.
- Attend training and instruction.
- Having regard to training and instructions, make correct use of articles or substances provided by the employer.
- Report any defects in the place of work, systems of work, articles or substances that might endanger them or others.
Employers who breach health and safety regulations face a range of actions by the HSA. The HSA may prosecute an employer or employee. If an employer is prosecuted in the Circuit Court and convicted on indictment, the employer may be fined up to €3m and/or sent to prison for two years. If convicted in the District Court, the employer may be fined up to €5,000 and/or imprisoned for up to 12 months.
The HSA also has available to it a range of lesser actions it may take. It may prohibit work where there is serious and imminent danger to health and safety by serving a Prohibition Notice on an employer. It may, in relation to less serious matters, serve an Improvement Notice.
Safety, Health and Welfare at Work (General Application) Regulations
HR practitioners will be familiar with the term six-pack, used in the UK to identify a set of regulations enacting a number of European directives. The Safety, Health and Welfare at Work (General Application) Regulations 2007 may be regarded as the Irish six-pack.
However the regulations, which are in common usage known as the General Application Regulations, deal with 17 different aspects of work related health and safety issues, ranging from the condition of the workplace through the protection to be afforded to pregnant employees to explosive atmospheres. These are:
- the workplace
- the use of work equipment
- personal protective equipment (PPE)
- manual handling of loads
- display screen equipment
- work at height
- protection of children and young persons
- protection of pregnant, post natal and breast feeding mothers
- night work and shift work
- safety signs
- first aid
- explosive atmospheres
- artificial optical radiation
- pressure systems
Employers are required to comply with the General Application Regulations. Failure to do so can lead to enforcement action by the HSA. Many of the prosecutions taken by the HSA are for breaches of Regulations.
The Regulations by and large reflect common sense and good practice, such as ensuing buildings are kept in good condition, PPE is worn where necessary and pregnant employees are afforded protection against risks such as those posed by chemicals.
However, beyond that, there are quite a number of very detailed provisions in the General Application Regulations. For example the definition of night work. Night work is work between the hours of 11pm and 6am where the employee works for at least three hours during that period or at least 25% of the employee’s monthly working time is during those hours.
One particular aspect of the General Application Regulations worthy of note is the Regulation on fire detection and fire fighting. The Regulation brings the major safety issue of fire prevention within the framework of health and safety legislation for the first time. This means that HSA inspectors can now examine the measures taken by employers in relation to protecting employees against the risks of fire.
Under the Regulation, employers are required to ensure workplaces are equipped with equipment to fight fires and to have fire detectors and alarms. They must also ensure that these are inspected and maintained.
The prevention of bullying in the workplace is an issue that concerns both HR practitioners and health and safety advisors within organisations. Given that the HSA has been charged with the task of monitoring organisations’ bullying prevention policies, bullying must be regarded as a health and safety issue.
The HSA’s Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 2007 defines bullying as repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise conducted by one or more persons against another or others which could reasonably be regarded as undermining the individual’s right to dignity at work.
An isolated incident of such behaviour is not regarded as amounting to bullying. Organisations are required to have a policy on the prevention of bullying at work
The HSA Code is one of three Codes dealing with the issue of workplace bullying. The others are the Labour Relations Commission’s Code detailing procedures to address bullying in the workplace and the Equality Authority’s Code on sexual harassment and harassment at work.
See our factsheet on bullying for more information.
One of the features that distinguishes health and safety law from others fields within the employment law area is that while employment legislation, such as the Unfair Dismissals Acts or the Employment Equality Act, applies across all sectors of work activity, within the body of health and safety legislation there are a large number of sector specific Acts and Statutory Instruments. While sector specific, some have widespread application.
Most people will be aware of the European REACH Regulation (REACH stands for the Registration, Evaluation, Authorisation and Restriction of Chemicals). REACH is a European Regulation, which applies directly in Ireland, as it does in all EU Member States. However, in order to enforce REACH the government enacted the Chemicals Act 2008 and Chemicals (Amendment) Act 2010, which give the HSA power to prosecute organisations and individuals who breach the REACH Regulation.
Other important regulations in the chemicals area are the Chemical Agents Regulations 2001 (currently being updated), the Asbestos Regulations 2006, the Carcinogens Regulations 2001 and, though not strictly chemicals, the Biological Agents Regulations 1989. Other areas that come within the heading of chemicals are dangerous substances and preparations. Apart from the Dangerous Substances Act 1972, there are a number of regulations governing the use and marketing of dangerous substances and preparations. See the regulations in the Irish Statute Book's Statutory Instrument section.
Asbestos, once regarded as a wonder material, has now emerged as one of the most dangerous materials to which workers have ever been exposed. While asbestos is now banned throughout Europe, it is present in many workplaces. When it is being worked on, for example, being removed, employers are under a duty to reduce exposure to a minimum, ensure work systems do not produce asbestos dust and, where work may expose employees to dust, notify the HSA at least 14 days before commencing work.
For those concerned with the transport of dangerous goods, the Carriage of Dangerous Goods by Road Act 1998 and the Regulations made under the Act are important. Organisations engaged in the transport of dangerous goods may need to get the advice of a dangerous goods safety advisor.
While currently suffering from the worldwide economic recession, the construction industry is still a significant sector in the Irish economy.
Anybody, be they construction companies or clients of construction companies, will need to be familiar with the Construction Regulations 2013. As well as setting out in detail the measures to protect workers' health and safety, the Regulations prescribe special rules for the appointment of safety officers and safety representatives on construction sites. Under pressure from the European Commission, the Irish government has included a provision so that the Regulations now apply to domestic homeowners carrying out construction work.
Mines and quarries
While the mining and quarrying sector in Ireland is small in terms of the numbers employed, the sector has its own specific health and safety legislation. Those concerned with employment rights and the protection of workers' health and safety in the sector need to be familiar with the Mines and Quarries Act 1965 and the Quarries Regulations 2008.
Fishing and offshore
Fishing and offshore activities are two distinct economic sectors, each of which is governed by specific health and safety legislation. Operators in the offshore industry must comply with the Safety, Health and Welfare at Work (Offshore Installations) Act 1987.
There are a number of regulations covering various fishing operations.
As noted above, there are over 200 different pieces of health and safety legislation. Legislation is constantly reviewed and new measures are introduced. Among the significant measures introduced in recent times are:
- Biological Agents Regulations 2013.
- European Union (Prevention of Sharps Injuries in the Healthcare Sector) Regulations 2014, commonly known as the Sharps Injuries Regulation.
- Protected Disclosures Act 2014, which provides protection against dismissal or penalisation of employees who disclose information about the endangerment of health and safety.
- Chemicals Act (Control of Major Accident Hazards involving Dangerous Substances) Regulations 2015.
- Safety, Health and Welfare at Work Act (General Application) (Amendment) Regulations 2016. The Regulations repealed the existing Woodworking Machines, Abrasive Wheels and Abrasive Blasting Regulations and brought into force new regulations on woodworking machines, abrasive wheels and abrasive blasting. The new Regulations were designed to fit within the framework of the General Application Regulations 2007.
- The Safety, Health and Welfare at Work (Electromagnetic Fields) Regulations, 2016 transposed the EU Electromagnetic Fields Directive into Irish national law.
In February 2014 court jurisdictions in respect of personal injury claims were increased. The increases are relevant in relation to employers defending employer liability and, as property owners/occupiers, public liability claims. The current jurisdiction limits are:
- Claims with an estimated value of up to €15,000 should be brought in the District Court
- Claims with an estimated value of up to €60,000 should be brought in the Circuit Court
- Claims estimated to be valued at over €60,000 should be brought in the High Court.
No absolute duty
The Supreme Court in a judgment on the interpretation of the General Application (Use of Work Equipment) Regulations held that the Regulations do not impose an absolute duty on employers. The Court found that the Regulations recognise that it is not always possible to ensure that work equipment can be used without risk. The judgment was delivered in the case of Thompson v Dublin Bus  IESC 22.