Jennifer Skilling

Process Safety 4

May 2016

LEGISLATION
1 CIVIL AND CRIMINAL LAW DEVELOPMENT IN THE
UNITED KINGDOM
Civil Law: A Duty of Care is owed to your neighbour as far as is reasonably
practicable. This is less onerous than having to exert every effort as there is some
judgement as to cost, time, and inconvenience when assessing the lengths gone to
avoid harm to a neighbour.
As far as reasonably practicable: compliance is required until the cost of
additional control measures becomes grossly disproportionate to the further
reduction of risk. It emphasizes the goal-setting nature of the legislation. There is
not a minimum standard that needs to be met but there should be constant
striving to improve. As technology advances and better safety systems are
implemented the reasonably practicable risk is reduced. The balance of cost to
benefit should always and constantly be under review.
So far as practicable: compliance required regardless of cost or difficulty as far as
possible within the light of current knowledge and invention. This is a very stringent
requirement, new technologies which could reduce risk should immediately be
installed, at any price.
There is an expectation that you will anticipate when your actions or omissions
could affect a neighbour.
A neighbour is anyone who you could reasonably foresee would be affected by
your actions/omissions.
Example: drivers should anticipate the presence of pedestrians when driving around
the city. However, under normal circumstances the driver should not anticipate the
presence of pedestrians in a motorway. On the other hand, if the driver saw a car
parked on a hard should it could be argued that it is reasonable to expect the driver
to be alert and anticipate the presence of people around the car.
Civil cases tend to centre on negligence. The plaintiff sues the defendant and
proves 4 key points
1) The defendant owed a duty of care and could have reasonably expected
to anticipate that their actions or omissions would have caused harm to the
plaintiff.
2) There was a breach of the duty and the defendant did not try to ensure
the plaintiffs wellbeing as far as reasonably practicable. Example: if the
plaintiff proves he did his best to avoid the harm there is no case.
3) A quantifiable injury or loss resulted and in the event the plaintiff wins
the case the defendant must compensate them for the harm.

Jennifer Skilling

Process Safety 4

May 2016

4) The injury was directly caused by the breach or lapse of Duty of

Care.

1.1 DEVELOPMENT

OF THE DUTIES OF EMPLOYERS

Safety in the workplace has traditionally been covered by the Civil Law. A
worker injured at work could sue the employer for compensation. However, in the
early years of industrialisation in the UK (18 th C) the likelihood of an employee
being in the position to be able to afford to take an employer to court, with
the associated costs, was low. The relationship between employer and worker was
a very unequal one. The reliance on Civil Law also meant there was no regime of
inspection or setting of standards in industry, only for compensation after the
harm was already done.
The

industrial revolution led to changes in the nature of

workplaces, with factories employing large numbers of people
in
mechanised workplaces. This was an entirely new way of
life
and work and introduced new dangers as well as threats to
health and general welfare. Initially there were no
restrictions on working hours and no standards placed
on the
working environment. Workers of all ages were required to
work
long hours in arduous, unsanitary and uncomfortable
conditions.
In 1802, the first of many Factories Acts was passed. This
introduced health and safety regulations as well as
some welfare regulations, initially in textile mills.
These were very basic, mostly concerning the allowable working
hours of children and women but with some rules concerning lighting and
ventilation and, in later acts, the guarding of machinery and safe operation
of steam power. Education of children was also set out as a requirement.
Initially, no provision was made in the acts to inspect mills or for
enforcement of the regulations, so their effect was minimal on working
practices. Until 1864 only textile mills were included then the act was expanded
to include other factories.
The textile mill regulations were followed by Mines and Mineral working acts
and the Alkali act, the latter was introduced in 1863 to control the discharge
of gaseous HCl from alkali works, a serious pollutant. This was introduced with
an alkali inspectorate with powers to inspect and enforce the act. This was
more an environmental protection act than a safety act. Steam boilers, a source of
many industrial accidents due to the late development of safety valves, were also
subject to regulation under specific acts.
Over time, as industry developed and diversified a wide range of prescriptive
legislation developed, with many individual pieces of legislation designed to control
the hazards specific to different industrial sectors. In 1972 there were 9 sets
of legislation administered by 5 government departments. A single
organisation could have aspects of their safety management controlled by

Jennifer Skilling

Process Safety 4

May 2016

more than one set of legislation with little in place to ensure these different
regulations were not contradictory.
The Health And Safety At Work Act of 1974 set out the principles and laws
which still form the basis of safety legislation in the UK. In a large part the Civil
duty of care is translated into a duty under this act which means that breach of
that duty is now a criminal offence rather than a civil matter. Health and safety
breaches can now lead to prison and punitive fines as well as compensation.
The Civil Duty of Care has been largely translated into
statutory duties under the HASAWA and breaking
these regulations is a criminal offence

1.2 WHY
1)

2)

3)

4)

5)

WAS THE HAWAZA NEEDED?

Cover ALL workers. The existing legislation tended to be specific to
particular industry sectors. entire sectors of employment, where there not
protected under the law with zero standards, inspection or enforcement of
minimum conditions.
Deal with fast changing technology. This time was a period of great
change in industry; economies of scale were being pursued with vigour so
larger and larger factories and processes were being set up, with
associated concentration of major hazards.
Deal with major hazards. Instrumentation and control equipment was
leading to more extreme operating conditions and reliance on control
systems, also giving opportunities to operate a wider range of processes at
larger scale than previously, but also involving major hazards. Example:
the explosion at Flixborough on the 1 st of June 1974 which killed 28 people
and affected the industrial base of the UK by restricting the production of
nylon, a key product.
Problems with prescriptive legislation. Prescriptive regulations produced
complicated sets of rules which covered many specific areas but omitted
others completely. For those areas that were covered the regulations had
sometimes to be amended to take account of changes in technology and
were not always reflective of the state of the art in the industries
concerned.
To address the static accident rate. Despite of advances in technology,
more sophisticated control systems and improved legal framework, the
accidents remained static. The system was not producing a regime of
increasing safety which must be the objective for any legislative system.

1.3 THE ROBENS COMMITTEE SUGGESTIONS.

The Robens committee was set up by the government in 1970 to review the
provision of health and safety in the UK. It reported in 1972 and the main outcome
was the Health and safety etc. at Work Act of 1974.

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Process Safety 4

May 2016

1) Self-regulation was seen as the solution to many of the problems that the
committee had identified. This would mean that the means of ensuring safety
were specified by those who had the greatest knowledge the
employers rather than by an external body.
2) Unified legislation and enforcement. The legislation replaced virtually all
of the existing complex array of laws with the HASAWA, reducing
complexity and removing loopholes. A single body was introduced for
the enforcement of the legislation, again reducing complexity and clarifying
responsibilities.
3) Major hazards identified. There was an additional social context in the act,
employers would be required to disclose information on hazards that
could affect people outside the workplace, so the HASAWA could be
considered to be of significant benefit to the public as well as employees.
The Robens committee identified major hazards as a serious concern, which
was realised in the Flixborough accident in 1974.
4) Formal safety systems. Safety systems were to be emphasised;
employers would need to demonstrate an organised and systematic
approach to the identification and control of hazards rather than
simply complying with rules. Safety Policies, illustrating that employers
understood and had means to control the hazards of their workplaces would
be required, again requiring a systematic approach.

2 DUTIES OF EMPLOYERS
The duties of the employer are, in many ways, a codification of the civil duty of
care. The duties are very general and therefore very comprehensive. There is no
specific instruction on how the duties are to be met, this is goal setting
legislation the intention is set out and the employer must demonstrate that
he is meeting the requirements.
One element which is significant in the regulations is the need to record
information on things such as training and systems of work, in order to be
able to demonstrate compliance
To employees
1) To ensure as far as is reasonably practicable the health, safety and welfare
at work of employees.
2) To provide as fair as is reasonably practicable machinery, equipment and
plant that are safe.
3) To ensure that systems of work are safe.
4) To provide training and information.
5) To maintain any place under their control in a safe condition.
6) To produce a safety policy and inform the workforce of it
To non-employees
A) Authorised: Authorised non-employees include people such as visitors,
contractors, customers, young people o work experience and, in the case
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Process Safety 4

May 2016

of the university, students. These people are owed a higher level of care
since they are not trained and informed in the way that employees are.
Measures such as insisting that they are accompanied by employees,
inductions for visitors etc must be in place to ensure their well being
AFARP.
B) Non-Authorised: could include people who have inadvertently entered a
workplace, or intruders. The employer should anticipate the presence of
such people, and ensure their safety, or take careful measures to ensure
that they do not come on to the premises.
For example perimeter fencing should secure the site from intruders, in
the case of process plant sites can be very large and remote areas need to
be secure. In offices reception areas are designed to restrict access to the
majority of the building. In public buildings or buildings such as university
buildings which are effectively public measures must be taken to exclude
non-authorised people from hazardous areas.
To the public: All employers have a general duty to ensure that they protect the
general public (ie outside their premises) from harm AFARP.

3 DUTIES OF DESIGNERS AND MANUFACTURERS

The duties of product designers and manufacturers centre on anticipation of how
equipment designed or supplied might be used or misused so instructions must
reflect this anticipation.
1) Adequate information must be supplied.
2) Must supply goods which are safe under all foreseeable conditions.

4 DUTIES OF EMPLOYEES
Employees are liable under the act in much the same way as employers they have
to do their best to ensure the workplace is as safe as reasonably practicable.
Where safety procedures have been identified they must be followed, safety
equipment must be used where provided. Safety committees, where employers
and employees meet to discuss safety matters, are a forum where the two groups
can share information on safety.
1) Must take reasonable care for themselves and others
2) Must co-operate with employers
3) Non-compliance can lead to prosecution

5 DUTIES OF ALL PEOPLE

No one must interfere or misuse anything provided in the interest of safety

Jennifer Skilling

Process Safety 4

May 2016

6 THE HEALTH AND SAFETY COMMISSION (HSC)

The HSC is the authority which oversees health and safety strategies in the
UK. It is responsible for the development of legislation. The mission of the HSC is
to protect peoples health and safety by ensuring risks in the changing workplace
are properly controlled.

7 THE HEALTH AND SAFETY ENFORCEMENT AGENCEY

(HSE)
The HSE is the enforcement agency. They are responsible for preparing the case
for the prosecution, just like the police would do in other situations. However,
their major role is to provide guidance by publishing a great number of documents
and consult directly with employers to inform and educate them with the aim of
improving safety. Again, this reinforces the goal-setting nature of safety
legislation.
HSE inspectors:
1)
2)
3)
4)
5)

Can inspect at any given time with automatic rights of access

Give warnings in the form of improvement notices
Close sites in the form of prohibition notices
Seize
Prosecute corporate bodies, individuals, or both

Improvement notices allow activities to continue but modifications must be

completed within the given timescale. A prohibition notice would mean that the
activity would have to stop until improvements were made, or a new system
identified for safe work.

8 GOAL SETTING VS PRESCRIPTIVE

This really illustrates the shift in emphasis introduced by the HASAWA and the
philosophy behind it. The key is to remove rules and standards which allow
compliance with the law by compliance with a minimum level of safety.
Requiring safety to be ensured as far as is reasonably practicable introduces a
constantly moving safety target, a target that is always moving in the direction
of safety improvement. The legislation exploits the expert knowledge of
employers in their own field to define what is reasonably practicable but
tempers this with the need for them to be able to demonstrate that they are
complying. Hence any inspection is now about examining safety systems,
records and evidence of safety measures rather than checking against
prescriptive safety measures.
The all-encompassing nature of the HASAWA means that all employers,
however obscure or innovative the activity they are engaged in are covered,
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there is no delay between the development of new technologies and the

introduction of safety regulation. In fact before undertaking any new activity
safety systems for that activity must be in place.
Features of Goal Setting legislation
1)
2)
3)
4)
5)
6)

Responsive to new developments

Shifts from inspections to demonstration
Safety measures developed by those who know most
Discourages doing only the minimum
Removes loopholes
Proactive rather than reactive

The HASAWA provides a framework for a comprehensive system of legislation

covering all work. Although the act itself provides safety cover for all employment
specific types of activity are also covered by regulations which are
additional to the act to give more specific legislation. These regulations can be
added to, removed or amended without affecting the overarching act itself.
The regulations highlight particularly hazardous areas of work and set out
requirements for controlling these hazards, in terms of identification and control
of hazards, but always in the spirit of the act itself.
The HASAWA is an Enabling act Specific areas are covered by
Regulations. For each set of regulations the HSE issues
Guidances and/or an Approved Code of Practice.

9 BASIC PRINCIPLE OF REGULATIONS

Indentify Hazard -> Assess Risk (OK/not OK) -> Control or Eliminate ->
Record
All regulations follow the same pattern. Hazards relevant to the regulations in
question are identified, wherever they occur in a workplace. Risk is assessed and
compared to some standard of acceptability and then if necessary further control
measures are identified or hazards eliminated in order to achieve an acceptable
level of risk. All assessments, control measures, systems of work and training
relevant to the regulations must be recorded so that the employer can demonstrate
compliance.

10 APPROVED CODES OF PRACTICE

Approved Codes of Practice are issued by the HSE to aid employers in
complying with the various regulations under the HASAWA. These explain the
hazards involved and give methods by which the hazards can be identified and
means by which control of the hazards can be achieved. Employers who can
demonstrate that they have complied with the ACoP will ensure that they have
complied with the regulations. There is no compulsion to use the methods set out in
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Process Safety 4

May 2016

the ACoP, provided an employer can demonstrate compliance an employer may use
any methodology to do so. For smaller employers, or those with limited resources
the ACoP is an effective and efficient way to ensure compliance and more
importantly to ensure that their workplace is as safe as possible.