UK: BLG Health & Safety Developments-Spring 2004

Last Updated: 24 June 2004
Article by Valerie Fogleman and John Goodman

DANGEROUS SUBSTANCES AND EXPLOSIVE ATMOSPHERES. On 30 December, the Health and Safety Executive ("HSE") published the fifth and final approved code of practice ("ACOP") supporting the Dangerous Substances and Explosive Atmospheres Regulations 2002.

The ACOP is intended to help employers eliminate or reduce fire and explosion risks from dangerous substances. It contains practical guidance, such as the factors to consider when performing risk assessments, as well as approved code material. It also explains how the Dangerous Substances and Explosive Atmospheres Regulations 2002 sit alongside other relevant law.

WORKING AT HEIGHT. On 4 December, the Health and Safety Commission commenced a consultation on draft new regulations and guidance on working at height.

The aim in producing the draft regulations and guidance is to bring together all the current legal requirements for safe work at height. They adopt a risk-based approach. Responses to the consultation are required by 4 April.

EMPLOYERS’ HEALTH AND SAFETY DUTIES: On 23 October, in R (on the application of Junttan Oy) v Bristol Magistrates Court, the House of Lords held that the HSE could choose to prosecute a company under the Health and Safety at Work etc Act 1974 ("HSWA") (with the prospect of higher fines) rather than under more specific regulations, introduced to implement an EU Directive, that cover the same ground.

Following a fatality resulting from a piling rig designed, manufactured and supplied by Junttan Oy, the HSE decided to proceed against Junttan Oy under the general employers’ duties contained in Sections 3 (safety of third parties) and 6 (safety of articles used at work) of HSWA, which carry an unlimited fine in the Crown Court. It decided to proceed in this way rather than to prosecute for breach of the duty contained in Regulation 11(1) of the Supply of Machinery (Safety) Regulations 1992 (which implements Directive 98/37/EC (the "Machinery Directive") in the UK) which carries a maximum fine of £5,000.

The House of Lords had to consider whether the co-existence of the two sets of duties is compatible with the UK’s obligations under the Machinery Directive. By a majority, the House of Lords decided that they were and that the HSE was entitled to choose the basis for the prosecution in this way.

ROAD VEHICLES/MOBILE TELEPHONE. On 1 December, the Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 (SI 2003/2695) came into force.

These insert a new Regulation 110 into the Road Vehicles (Construction and Use) Regulations 1986, making it an offence for an employer to cause or permit their employees to drive a motor vehicle on a road whilst that employee is using a hand-held mobile telephone or a hand-held device which performs an interactive communication function by transmitting and receiving data.

To comply with the regulations, employers will need, in particular, to prohibit their employees from using a hand-held mobile phone while driving on company business, unless parked; and find a way of preventing employees from communicating directly with drivers on their hand-held mobile telephones while they are driving.

STRESS AT WORK. In November, the HSE published a guidance pack containing case studies to help employers and employees to tackle workplace stress.

The pack, entitled "Real Solutions, real people – a managers guide to tackling workrelated stress", builds on, and complements, existing HSE guidance on stress.

HEALTH AND SAFETY COMMISSION. On 30 October, the Health and Safety Commission published its annual report for 2002 to 2003.

In general, the report states that "most plans have been delivered or well progressed; regulatory outputs exceeded profile; and the HSE achieved its best Business Improvement Performance. European projects are largely progressing to plan, with HSE inputting as necessary where other Departments have the lead. A number of domestic legislative projects slipped, but for sound reasons; and it has been necessary again in 2002/03 to return many safety cases to duty holders for further action – hence the final output performance measure is well below profile." 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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