An employee may commit an offence
if he contravenes the general duties imposed by ss.7(a)
and 7(b) by failing:
to take reasonable care for the
health and safety of himself and other persons who may
be affected by their acts or omissions at work (s.7(a));
and
as regards any duty or requirement
imposed on his employer or any other person by or under
any of the relevant statutory provisions, to co-operate
with him so far as is necessary to enable that duty or
requirement to be performed or complied with (s7(b)).
Section 7 places important
duties on the employee irrespective of the obligations on the
employer. Furthermore, it should be noted that the section is
intended to protect not only fellow employees but other persons
who may be affected by the employee's actions, and imposes a
duty of cooperation in the performance of duties and requirements
placed on any person, not just his employer.
The duty imposed under
Section 7(a) is expressed in terms that are commonly used in
civil law, rather than criminal law. Although there is no case
law to assist in the interpretation of "reasonableness"
in this context, the extent to which the risk could/should have
been foreseen will be an important factor in defining the existence
of the duty.
The duty under Section
7(a) is restricted to acts or omissions "at work",
which is defined in Section 52(1) HSWA.
The requirements of
Section 7(b) are limited to "relevant statutory provisions"
as defined in S.53 HSWA, so that they cannot be used in relation
to a failure to comply with legislation which does not fall
in that category, for example the Road Traffic Act.
Employees
The definition of an employee/self-employed
person is found in the section on the Status
of Workers'.
As the section relates
only to actions by employees as defined in s.53, it is important
to establish that a contract of employment, written or implied,
exists; and that the person against whom action is being considered
is at work and carrying out that work in the course of his employment.
This evidence is of
particular importance in cases where is it thought that so-called
contract staff are working in the establishment, that is staff
taken on for short periods, but who may be either employed by
an agency or self employed. The use of contract staff is increasing,
and if action is justified against such a worker it may be that
it will have to be taken either under s.8 or s.36 (1).
Circumstances
in which S.7 might appropriately be used
Where the employer appears
primarily responsible for the circumstances giving rise to a
potential prosecution, action should normally be taken against
the employer alone. However, where the employer has taken all
reasonably practicable steps to ensure compliance then action
against the employee should be considered.
Consideration should be given
to whether employees in practice followed the systems of work
alleged by the employer to be in force.
Consideration should be given
to any previous warnings to the employee, and whether the offence
by the employee created an obvious risk. You should see
also OC130/8
for information on the prosecution of individuals.
Trade
Union Liaison
The requirements
of this section have in the past received the full support of
trade unions, who have appreciated that employees must play
a significant role in securing the reduction of hazards, ill
health and accidents arising from work activities. Consultation
with workers' representatives is therefore important when action
under this section is contemplated.
