General Duties

General Duties of Employer

Every employer is obliged to manage and conduct his or her undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (including, but not limited to his or her employees) are not exposed to risks to their safety, health or welfare.

A person who is training for employment or receiving work experience, other than when present at a course of study in a university, school or college, is deemed to be an employee of the person whose undertaking (whether carried on by him or her for profit or not) is for the time being the immediate provider to that person of training or work experience.

• manage and conduct work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;
• manage and conduct work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk;

Place of Work

As regards the place of work concerned, the employer must ensure in so far as is reasonably practicable—

• the design, provision and maintenance of it in a condition that is safe and without risk to health,
• the design, provision and maintenance of safe means of access to and egress from it, and
• the design, provision and maintenance of plant and machinery or any other articles that are safe and without risk to health;

The employer must

• ensure so far as it is reasonably practicable, the safety and the prevention of risk to health at work of his or her employees relating to the use of any article or substance or the exposure to noise, vibration or ionising or other radiations or any other physical agent;
• provide systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;
• provide and maintain facilities and arrangements for the welfare of his or her employees at work;
• provide the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;

Principles of Prevention

In determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment or when preparing a safety statement and ensuring that the measures take account of changing circumstances and the general principles of prevention specified below;

Having regard to the general principles of prevention where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;Principles of Prevention II

• the avoidance of risks.
• the evaluation of unavoidable risks.
• the combating of risks at source.
• the adaptation of work to the individual, especially as regards the design of places of work, the choice of work equipment and the choice of systems of work, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing the effect of this work on health.
• the adaptation of the place of work to technical progress.
• the replacement of dangerous articles, substances or systems of work by safe or less dangerous articles, substances or systems of work.
• the giving of priority to collective protective measures over individual protective measures.
• the development of an adequate prevention policy in relation to safety, health and welfare at work, which takes account of technology, organisation of work, working conditions, social factors and the influence of factors related to the working environment.
• the giving of appropriate training and instructions to employees.

Further Duties

The employer must

• prepare and revise, as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger;
• report accidents and dangerous occurrences, as may be prescribed, to the HSA; and
• obtain, where necessary, the services of a competent person (whether under a contract of employment or otherwise) for the purpose of ensuring, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

Every employer shall ensure that any measures taken by him or her relating to safety, health and welfare at work do not involve a financial cost to his or her employees.

The employer must ensure that in the case of

• a class or classes of particularly sensitive employees to whom any of the relevant statutory provisions apply, or
• any employee or group of employees exposed to risks expressly provided for under the relevant statutory provisions,

the employees concerned are protected against the dangers that specifically affect them

Co-operation

Where employers share a place of work, they shall—

• in relation to safety, health and welfare at work, co-operate in complying with and implementing the relevant statutory provisions,
• taking into account the nature of the work carried on at the place of work concerned—
• co-ordinate their actions in matters relating to the protection from and prevention of risks to safety, health and welfare at work, and
• inform each other and their respective employees and safety representatives (if any) of any risks to their safety, health and welfare arising from the work activity, including by the exchange of safety statements or relevant extracts therefrom relating to hazards and risks to employees.

Information

Every employer shall, when providing information to his or her employees under that section on matters relating to their safety, health and welfare at work ensure that the information is given in a form, manner and, as appropriate, language that is reasonably likely to be understood by the employees concerned. It must include

• information the hazards to safety, health and welfare at work and the risks identified by the risk assessment,
• the protective and preventive measures to be taken concerning safety, health and welfare at work under the relevant statutory provisions in respect of the place of work and each specific task to be performed at the place of work, and
• the names of persons designated as safety wardens and of safety representatives

Where an employee of another undertaking is engaged in work activities in an employer’s undertaking, that employer shall take measures to ensure that the employee’s employer receives adequate information concerning the above matters.

Every employer shall ensure that employees appointed as safety officers and safety representatives, if any, have access, for the purposes of performing their functions relating to the safety, health and welfare of employees, to

• the risk assessment carried out,
• information relating to accidents and dangerous occurrences required to be reported to the Authority, and
• any information arising from protective and preventive measures taken under the relevant statutory provisions or provided by the Authority,

Training and Supervision I

Every employer shall, when providing instruction, training and supervision to his or her employees in relation to their safety, health and welfare at work, ensure that

• instruction, training and supervision is provided in a form, manner and, as appropriate, language that is reasonably likely to be understood by the employee concerned;
• employees receive, during time off from their work, where appropriate, and without loss of remuneration, adequate safety, health and welfare training, including, in particular, information and instructions relating to the specific task to be performed by the employee and the measures to be taken in an emergency;
• in relation to any specific task assigned to an employee, that his or her capabilities in relation to safety, health and welfare are taken into account,

The required training shall be adapted to take account of new or changed risks to safety, health and welfare at work and shall, as appropriate, be repeated periodically. The training is to be provided to employees—

• on recruitment,
• in the event of the transfer of an employee or change of task assigned to an employee,
• on the introduction of new work equipment, systems of work or changes in existing work equipment or systems of work, and
• on the introduction of new technology.

Training and Supervision II

Where, in respect of any particular work, competency requirements are prescribed, the employer shall provide for the release of employees, during working hours, where appropriate, and without loss of remuneration, for the purpose of attending training in matters relating to safety, health and welfare at work as regards the particular work.

Every employer shall ensure that persons at work in the place of work concerned who are employees of another employer receive instructions relating to any risks to their safety, health and welfare in that place of work as necessary or appropriate.

Every employer who uses the services of a fixed-term employee or a temporary employee shall ensure that the employee receives the training appropriate to the work which he or she is required to carry out having regard to his or her qualifications and experience.

Reasonably Practicable I

Many employer obligations under health, safety and welfare legislation require the employer to perform the relevant duty “in so far as reasonably practicable”. The employer is typically obliged insofar as reasonably practicable, to ensure the safety, health and welfare at work of his employees.  In other cases, the duties are in more absolute terms.  In some cases, the legislation expresses the obligation in terms equivalent to these formulations.

The 2005 Act defines “reasonably practicable” in the context of employer duties under the legislation require that the employer has

• exercised due care in putting the necessary protective and preventive measures in place,
• having identified the hazards and assessed the risks to safety and health likely to result in accidents or injuries to health in the workplace concerned and
• that that further measures would be grossly disproportionate having regard to the unusual, unforeseeable or exceptional nature of the circumstances or occurrences that may result in an accident at work or injury to health at the place of work.

Reasonably Practicable II

“Reasonably practicable” requires to some extent, a balancing between efforts and steps that could be taken to achieve safety and eliminate risks against the costs and effort involved.  The standard is not simply set by a cost-benefit analysis.  However, where certain steps and actions are grossly disproportionate in terms of cost relative to risk, the employer is unlikely to be required to take them.

As with many civil duties, the measure of risk versus the cost and practicality of steps to counter the risk, must be considered.  If a risk is very high, then cost will not generally justify a failure to mitigate or eliminate it.  The mere fact of the risk would ordinarily entail and necessitate higher costs.  Solutions that are technically possible, but practically impossible may not be required, depending on circumstances.

Reasonably Practicable III

If the risk is very small, and there is a high cost in taking steps to reduce or eliminate it, those steps, may nonetheless be required.  If the risk is extremely low or transient and the cost is extremely high, it may be disproportionate to take very costly actions to counter it, the duty may not require that those actions be taken.  If a particular precaution is practicable, it should be taken, unless in the circumstances, it is unreasonable to require it.  Where lives or health is at risk, every practicable precaution is likely to be required.

Generally, the onus of proof is on the employer to prove that particular steps were not reasonably practicable in the circumstances.  If there are elements of danger or risk in the workplace, this will place a very heavy onus on the employer, should he choose to run them. The courts will not readily accept that a precaution should not be taken in respect of dangers in the workplace, even if the risk in question is relatively low.

Standard Requirements

The standard requirement of employers under most of the general health, safety and welfare duties, is probably equivalent to that required under the law of civil liability.  There are some cases, usually related to particularly dangerous or risky activities, where the wording of statute / regulation  requires a higher standard than the common law standard.

The 2005 legislation makes it clear that the onus of proof lies on the employer at all times, even in criminal prosecutions, in respect of the breaches of the legislation.

In sole contexts, the legislation expresses that employer’s duty in different terms. The terms of the particular obligation will need to be considered.  In some cases, the obligation will be expressed in more absolute and onerous terms in health, safety and welfare legislation.   It may be required that a standard is to be achieved insofar as practicable.  “Practicable” does not imply that everything short of physical impossibility is required.

Some duties are in more absolute terms but which involve a judgment as to their application in a given case. The application of duties and obligations in particular circumstances is a matter of interpretation. The requirement is that equipment be suitable without risk, be “properly” maintained, be in “proper” and be efficient working order.

Emergency Training

Every employer shall, in preparing and revising as necessary adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger

• provide the necessary measures to be taken appropriate to the place of work for first aid, fire-fighting and the evacuation of employees and any other individual present in the place of work, taking account of the nature of the work being carried on and the size of the place of work,
• arrange any necessary contacts with the appropriate emergency services, in particular with regard to first aid, emergency medical care, rescue work and fire-fighting,

The employer must, for the purposes of implementing the plans, procedures and measures required by the legislation

• designate employees who are required to implement those plans, procedures and measures, and
• ensure that the number of those employees, their training and the equipment available to them are adequate, taking into account either or both the size of and specific hazards relating to the place of work.

Emergency

In the event of an emergency or serious and imminent danger, an employer shall

• as soon as possible inform all employees concerned of the risk involved and of the steps taken or to be taken to protect them from it,
• save in exceptional cases for the reasons specified in the plans and procedures, refrain from requiring employees to carry out or resume work where there is still a serious and imminent danger to their safety and health, and
• ensure that, in the absence of appropriate guidance or instruction and having regard to the knowledge of the employee and the technical means at his or her disposal, and where the employee’s immediate superior responsible cannot be contacted, the employee concerned may take appropriate steps to avoid the consequences of the danger.

In the event of serious, imminent and unavoidable danger, an employer shall take action and give instructions to enable employees to either or both stop work and immediately leave the place of work and to proceed to a safe place. It shall ensure that an employee who leaves a place of work is not penalised because of such action.

An employer shall ensure that only employees who have received appropriate instructions have access to the area of the place of work where a serious, specific danger exists.

Exceptions

The above obligations do not apply to the following persons when they are engaged in activities relating to civil emergencies, public order, security or an act of war where any such activity prevents compliance:

• members of the Defence Forces;
• members of the Garda Síochána;
• employees of a fire authority (within the meaning of the Fire Services Act 1981); or
• persons engaged in the activities of civil protection or civil defence.

References and Sources

Irish Books

Safety, Health and Welfare and at Work Law in Ireland 2^nd Ed 2008 Byrne Ch 43

Safety & Health Acts Consolidated & Annotated       2013   Byrne

Health, Safety & Welfare Law in Ireland        2012   Kinsella Ch 4,5

Health & Safety: Law and practice 2007 Shannon

Health & Safety at Work   1998 Stranks Ch 6

Civil Liability for Industrial Accidents 1993 While

Websites

The Health and Safety Authority  www.hsa.ie

Health and Safety Executive (UK) www.hse.gov.uk

UK Books

Tolleys Health and safety at work, 2017 29th ed Bamber,

Corporate liability: work related deaths and criminal prosecutions 3rd ed. Forlin

Health and safety at work: European and comparative perspective Ales.

Health and Safety Law 5^th Ed 2005 Stranks

Principles of Health and Safety at Work (8th ed) Holt, Allan St. John; Allen, Jim;

The Law of Health and Safety at Work 2014/15 (23rd ed) Moore, Rachel; Winter, Hazel;

Statutes

Safety, Health and Welfare at Work Act 2005

Safety, Health and Welfare at Work (General Application) (Amendment) (No. 3) Regulations 2016 (S.I. No. 370 of 2016)

Safety, Health and Welfare at Work (General Application) (Amendment) (No. 2) Regulations 2016 (S.I. No. 70 of 2016)

Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2016 (S.I. No. 36 of 2016)

Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2012 (S.I. No. 445 of 2012)

Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2010 (S.I. No. 176 of 2010)

Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2007 (S.I. No. 732 of 2007)

Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)