Safety, Health and Welfare at Work
The Safety, Health and Welfare at Work Act 2005, which came into force on 1st September 2005, repealed and replaced the Safety, Health and Welfare at Work Act 1989. It was brought in to make further provision for the safety, health and welfare of persons at work. This Act clarifies and enhances the responsibilities of employer's, the self-employed, employees and various other parties in relation to safety and health at work. The Act also details the role and functions of the Health and Safety Authority, provides for a range of enforcement measures that may be applied and specifies penalties that may be applied for breach of occupational safety and health.
Who does the Act apply to?
The Act applies to all employers, self-employed and employees in all places of work. It also places duties on designers, suppliers, manufacturers and others concerned with work activities.
What are the Duties of an Employer under the 2005 Act?
The Act categorises the employer's duties under the following headings:
- General Duties of Employers
- Information to Employees
- Instruction, Training and Supervision of Employees
- Emergencies and Serious and Imminent Dangers
- Protective and Preventive Measures
- Hazard Identification & Risk Assessment
- Safety Statement
- Health Surveillance and Medical Fitness to Work
- Safety Representative
- Employee Consultation
General Duties of the Employer
The employer is required:
- to ensure the safety, health and welfare at work of his or her employees;
- to manage and conduct work activities in such a way as to ensure the safety, health and welfare at work of all employees;
- to manage and conduct work activities in such a way as to prevent any improper conduct or behaviour likely to endanger employees;
- to ensure safety and the prevention of risk arising from the use of articles or substances or the exposure to noise, vibration, radiation or any other ionizing agent;
- to provide systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be safe and risk free;
- to provide and maintain facilities and arrangements for the welfare of employees at work;
- to provide information, instruction, training and supervision, where necessary;
- to implement the safety, health and welfare measures necessary for protection of employees, as identified through risk assessments and ensuring that these measures take account of changing circumstances and the general principles of prevention specified in Schedule 3 of the Act;
- to provide protective clothing and equipment where risks cannot be eliminated or adequately controlled;
- to prepare and revise emergency plans and procedures;
- to report accidents and dangerous occurrences to the relevant authority;
- to obtain where necessary the services of a competent person for the purpose of ensuring safety and health at work; and
- to ensure that all safety measures take into account both fixed term and temporary workers and that that any measures taken do not involve financial cost to his or her employees.
As regards the place of work concerned, the employer must ensure the design, provision and maintenance of:
- a safe, risk-free place of work,
- safe means of access to and egress from it
- plant and machinery that are safe and without risk to health
Information to Employees
When giving information to employees, employers must:
- ensure that it is given in such appropriate form, manner and language that it is likely to be understood by the employees concerned
- ensure that the information includes the workplace hazards and risks identified, the protective and preventive measures taken and the names of the safety representative and all other persons named in evacuation procedures etc.
Where persons from other employment are engaged in work activities in an employer's undertaking, the employer must ensure that the person's employer receives the above information
The employer must ensure that the Safety Representative and designated competent persons have access to:
- the risk assessment;
- information relating to reportable incidents and accidents; and
- information arising from protective or preventative measures.
The employer must provide information relating to the following before a fixed term or temporary employee commences work:
- any potential risks;
- health surveillance;
- any special occupational qualifications or skills required; and
- any increased specific risks which the work may involve.
Instruction, Training and Supervision of Employees
The employer must ensure that:
- all instruction, training and supervision is provided in a manner, form and language that is reasonably likely to be understood
- employees receive, during time off from their work but without loss of pay, adequate health, safety and welfare training including, in particular, information and instruction relating to the specific task to be performed and measures to be taken in an emergency;
- the employee's capabilities in relation to safety, health and welfare are taken into account;
- in the case of a class or classes of sensitive employees or groups of employees exposed to risks expressly provided for in the relevant statutory provisions, the employees are protected against the dangers that specifically affect them; and
- training must be adapted to take account of new or changed risks in the workplace.
Training must be provided:
- on recruitment;
- when an employee is transferred or tasks change;
- on the introduction of new or changed work equipment or work systems; and
- on the introduction of new technology.
All contractors etc, carrying out work in the employer's premises must receive relevant safety instructions.
Emergencies and Serious and Imminent Dangers
The employer must provide adequate plans and procedures to be followed and measures to be taken in the case of emergency or serious and imminent danger. These plans should:
- provide measures for first aid, fire-fighting and premises evacuation taking into account of the nature of the work being carried out and the size of the place of work;
- arrange necessary contacts with appropriate emergency services (first aid, emergency medical care, rescue work and fire-fighting);
- designate employees who are required to implement these plans, procedures etc., and
- ensure that all designated employees have adequate training and equipment available to them.
In the event of the an emergency or serious and imminent danger the employer must:
- inform all employees of the risk and steps taken to protect them;
- refrain from requiring employees to carry out or resume work where there is still a threat to their safety;
- ensure that, in the absence of appropriate guidance or instruction, based on the employee's knowledge and technical means at his or her disposal, the employee must take appropriate steps to avoid the consequences of the danger;
- take action and give instruction for employees to stop work and remove themselves to a safe place;
- ensure that an employee who leaves the place of work in the case of emergency is not penalised because of such action; and
- ensure that access to specifically hazardous areas is restricted only to employees who have received appropriate training.
Protective and Preventive Measures
The employer must:
- appoint an adequate number of competent persons to perform the functions relating to the protection of employees and give them adequate time and means to perform those functions;
- make arrangements for co-operation between the competent person and the safety representative; and
- give preference to competent persons within their employment when appointing a competent person.
Hazard identification and risk assessment
The employer must:
- identify all hazards in the work place;
- keep a written assessment of the risks associated with each hazard (known as a risk assessment);
- review the risk assessment if there is a significant change to the matters it relates to or there is any other reason to believe that it is no longer valid; and
- implement any control measures or improvements which are identified by the risk assessment.
Employers must have a written safety statement, based on the hazard identification and risk assessment carried out, which specifies how they are going to manage and secure the safety, health and welfare of all employees at work.The safety statement should specify:
- the hazards identified and risks assessed;
- the protective and preventive measures taken and the resources provided;
- the emergency plans and procedures;
- the duties of the employees; and
- the names, job titles and positions of anyone assigned with safety responsibilities.
The safety statement should be brought to the attention of:
- employees at least annually or when there is any changes;
- newly recruited employees upon the commencement of employment; and
- other persons at the place of work who may be exposed to any specific risk.
The employer must review the safety statement if:
- there is a significant change to the matters it relates to;
- there is any other reason to believe that it is no longer valid; or
- an inspector directs that the statement be amended.
Every employer must ensure that:
- all contractors providing services to the employer have an up to date safety statement; and
- a copy of the safety statement is kept available for inspection at or near the place of work.
If an employer who employs 3 or fewer employees is engaged in an activity for which there is a code of practice for that type of activity, they can fulfil their duty in relation to safety statements by complying with such code of practice.
Duty of Employers to Co-operate
Where employers share a place of work, they must:
- co-operate in complying with and implementing the relevant statutory provisions;
- co-ordinate their actions in relation to prevention and protection of employees; and
- inform each other, respective employees, safety representatives etc. of all risks, including the exchange of safety statement and relevant extracts relating to hazards and risks.
Health Surveillance and Medical Fitness to Work
Employers are required to ensure that health surveillance appropriate to the risks that may be incurred in the place of work is available to all employees.
Employees are required to inform their employer or their employer's Registered Medical Practitioner if they are unfit to carry out a prescribed work activity. If an employer is notified of the unfitness of the employee they must immediately take appropriate action to comply with the general duties of employers to ensure the safety, health and welfare of all employees at work.
The employer must:
- agree with the safety representative the frequency of inspections to take place;
- consider any representations made to him or her by the safety representative and so far as reasonably practicable take any action that he or she considers necessary or appropriate with regard to those representations;
- `llow the safety representative such time off from their work, without loss of pay, as is reasonable to enable the safety representative to acquire the knowledge and training and time to discharge their functions;
- inform the safety representative when an inspection is taking place;
- give the safety representative a copy of the written confirmation, required under the Act and sent to the inspector, that an Improvement or Prohibition Notice has been complied with.
Consultation and Participation with Employees
Employers are required to:
- consult with employees for the purpose of making and maintaining safety arrangements
- consult with their employees and safety representatives in good time regarding:
- protective measures proposed
- the designation of employees with safety responsibilities
- activities arising from or relating to the protection from and the prevention of risks
- the hazard identification and risk assessment
- the safety statement
- the information to be provided to employees (as outlined above)
- the information required to be kept or notified to the Authority in respect of accidents or dangerous occurrences
- the appointment of competent persons
- the planning and organisation of training
- the planning and organisation of new technologies particularly in relation to the choice of equipment, working conditions and the work environment
Employers are prohibited from penalising (defined as dismissal, demotion, transfer, imposition of duties, coercion or intimidation) or threatening to penalise employees, who are performing any duty, exercising rights or who make any complaints relating to safety and health or who give evidence in enforcement proceedings.
The dismissal or penalisation in such manner can be deemed to be an unfair dismissal within the meaning of the Unfair Dismissals Acts of 1997 and 2001 and employees may also complain to the Rights Commissioner that their employer has penalised them for exercising their rights under the safety and health legislation.
What are my duties as an employee under the Act?
An employee, while at work must:
- comply with all relevant statutory provisions;
- take reasonable care to protect the safety of themselves and others who might be affected by their acts and omissions;
- ensure they are not under the influence of an intoxicant or in such a state that they might be a danger to themselves or others;
- submit to reasonable, appropriate testing, if reasonably required by the employer .The Act gives scope for Regulations to be made that provide for employees to be required to undergo tests for intoxicants to be carried out by or under the supervision of a registered medical practitioner. Such Regulations are yet to be developed and until they are made, an employer may not require such testing although local agreements may apply. The employer may, however, prevent an employee from working if it is apparent that he or she would be a danger to themselves or others;
- co-operate with his or her employer so far as is necessary to enable compliance with the relevant statutory provisions;
- not engage in any improper conduct or dangerous behaviour;
- attend training and undergo such assessment as may be necessary;
- make correct use of any article or substance provided for use or for the protection of the employee, including protective clothing and equipment;
- report to his or her employer, as soon as practicable, any work being carried out which might endanger themselves or others; any defects in the place of work, the system of work, any article or substance which might endanger themselves or other; or any contravention of the relevant statutory provisions of which he/she is aware; and
- notify the employer or the employer's nominated registered practitioner if they become aware that they are suffering from any disease or physical or mental impairment which affects their performance of work activities that could give rise to risks to the safety, health and welfare of persons at work. The duty is on the employee to protect themselves and others.
An employee may not:
- misrepresent himself or herself to an employer with regard to their level of training;
- interfere, misuse or damage anything provided for the safety, health and welfare or employees; or
- place at risk the safety, health and welfare of persons in connection with work activities.(An employer may prevent an employee from working if it is apparent that he or she would be a danger to themselves or others.)
What are the duties of designers, manufacturers, importers and suppliers of articles and substances?
Manufacturers, importers and suppliers of equipment, machinery, articles, or substances used at work have the duty of ensuring safety and health concerning the use of the materials that they produce or supply. Manufacturers, importers and suppliers must provide information on the correct use of the materials to ensure safety and health at work. Users must be provided with information about the safe use of the article and updated information must be supplied if it becomes known to the supplier or manufacturer that there is any risk to health, safety and welfare. Information provided must relate to the use for which the article has been designed, manufactured or tested and must include information on its safe installation, use, maintenance, cleaning, dismantling or disposal without risk to safety or health. Designers, manufacturers, importers and suppliers of articles who retain a responsibility under a rental, leasing or other agreement, must maintain the article in a safe condition and in compliance with health and safety laws. Designers and manufacturers must carry out research to discover if the article gives rise to risks with a view to reducing these risks. Persons who erect, assemble or install an article for use at the place of work must ensure that it is done so safely and without future risk.
What happens if an inspector finds something wrong in the workplace?
Depending on the seriousness of the breach of legislation the inspector may take a number of different actions, at his or her discretion. These include issuing:
- Improvement Directions: If an inspector considers that any activity is likely to involve a risk to safety, health and welfare of persons at work he or she may require the employer to submit an improvement plan specifying the remedial action to be taken. The inspector will also give a copy of the improvement direction to the safety representative. Within one month of receipt of the improvement plan, inspectors will confirm in writing to the employer whether the plan is adequate or direct that it be revised.
- Improvement Notice: In the case of a contravention of safety and health legislation or failure to submit an Improvement Plan as directed, an inspector may issue an Improvement Notice to the person in control of the work activities. The notice will direct the employer to remedy the contravention or to submit an improvement plan within a certain time frame.The employer must bring the notice to the attention of any person whose work is affected by the notice and must display the notice in a prominent place at or near the place of work, article or substance involved. The inspector will give a copy of any Improvement notice to the safety representative and tell the safety representative in writing if the notice has been withdrawn.The person served with the notice must confirm in writing to the inspector that the matters referred to in the notice have been complied with. Within one month of receiving the confirmation of compliance the inspector will, after satisfying him or herself that the matters have been addressed, give written notice to the person concerned that the notice has been complied with.
- Prohibition Notice: Where there is a serious risk of personal injury the inspector may serve a prohibition notice on the person who has control of the activities involved. This will immediately prohibit the carrying on of work concerned until the risk has been remedied or until the notice has been successfully appealed to the Court. The inspector will give a copy of a prohibition notice to the safety representative and tell the safety representative in writing if the notice has been withdrawn. The person on whom the notice has been served must bring the notice to the attention of any person whose work is affected by the notice and must display the notice in a prominent place at or near the place of work, article or substance involved.The person served with the notice must confirm in writing to the inspector that the matters referred to in the notice have been complied with. Within one month of receiving the confirmation of compliance the inspector will, after satisfying him or herself that the matters have been addressed, give written notice to the person concerned that the notice has been complied with. Where activities are carried on in breach of a prohibition notice an inspector may make an ex parte application (i.e. without the presence of the person concerned) to the High Court for an order prohibiting the continuance of the activities in question.
- High Court Order: Where the risk to safety, health and welfare at the place of work is so serious that the use of it should be immediately restricted or prohibited until remedial measures are taken the Authority can apply ex parte to the High Court for an order restricting or prohibiting work on part or all of the place of work.
What are the penalties for breaches of health and safety legislation?
Most offences, including any breaches of Regulations under the 2005 Act may be tried either:
in summary proceedings in the District Court where the max penalty is €3,000 per charge and/or up to six months imprisonment or on indictment in the Circuit Court where the maximum penalty is €3,000,000 and/or imprisonment for a term not exceeding two years.
The Health and Safety Authority may compile and publish a list of names and addresses and the description of the business or activities of every person who has been fined or given any other penalty by a court in relation to safety and health legislation on whom a Prohibition Notice has been served against whom a High Court order was made regarding the use of a place of work.
The Act also empowers an inspector to issue on "the spot fines" where he or she has reasonable grounds for believing that a person is committing or has committed certain prescribed offences under occupational safety and health legislation.The Act allows for fines of up to €1000 per offence. On the spot fines can apply to employers, employees, persons in control of workplaces, importers and suppliers etc – all duty holders under the Act.