What are the employee’s duties under the Safety, Health and Welfare at
Work Act 2005? What are the penalties for employees who break their
statutory duty?
The following is offered as a guide for principals and deputy principals so that they
will have some understanding of the new legislation. More detailed information on
this subject and on all other areas of health and safety is available from the Health
and Safety Authority (free of charge) on their website: www.hsa.ie
The 2005 Act has repeated many of the employee’s duties of the 1989 Act while also
introducing some important new duties.
Section 13 and 14 of the Act outline the employee duties, while section 77 outlines
the penalties, which may occur if they breach their statutory duties under this Act.
Section 13 is intended to protect the employee, fellow employees and other people
affected by their actions.
The duties of an employee are:
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To comply with relevant Safety Law, both in the 2005 Act and elsewhere.
(New)
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To take reasonable care to protect their safety and that of others affected by
their acts or omissions.
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Not to be under the influence of alcohol or drugs to the extent that they
are likely to endanger their safety or that of others. (New)
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If reasonably required, to submit to appropriate tests for intoxicants
under the supervision of a competent registered medical practitioner.
(New) (Note that this has yet to be introduced, as consultation between the
social partners is taking place. Also the minister will submit it in draft form to the
Oireachtas Committee on Enterprise.
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To co-operate with their employer to help in complying with safety legislation.
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Not to engage in improper conduct or behaviour that is likely to
endanger safety or health. (New) Violence, Horseplay or Bullying would
come into this section.
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To attend appropriate training and instruction given by their employer.
(New)
• Correctly use any article, substance, protective clothing and equipment
provided for use at work (by their employer) to protect their safety or health.
Not to misrepresent their level of training, upon entering into an employment
contract.
To report to their supervisor, or other appropriate person:
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work being carried out in a manner, which may endanger
health or safety. (New)
contraventions of the statutory provisions, which may
endanger health or safety. (New)
ƒ defects in the place, system or equipment at work, which may
endanger health or safety.
Section 14 prohibits any person from recklessly interfering with or misusing
anything provided under law for securing health and safety, or place at risk the
safety of people in connection with work activities. It is worth noting that this applies
to persons and not just persons at work. This section could apply to students if they
behaved recklessly in a laboratory, construction studies room or technology room for
example or where students misuse Personal Protective Equipment (PPE) or
remove/damage safety equipment such as fire extinguishers.
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Section 77 states that a person having duties under the Act, is guilty of an offence
if another person suffers a personal injury as a consequence of them breaching their
statutory duties. This section sets out the full range of offences applicable under the
Act.
Section 78 provides for a fine under summary jurisdiction not exceeding €3,000 for
a person guilty of an offence under the first category of offences set out in Section
77(1). A person found guilty of any other offence set out in Section 77 is liable, on
summary conviction (in the District Court) to a fine not exceeding €3,000 and/or up
to 6 months imprisonment. Charges brought on indictment (in the Circuit Court) may
lead to a fine not exceeding €3 million and/or 2 years imprisonment.
Failure to comply with the duties results in criminal prosecution for breech of duty
and can lead to:
a. difficulties obtaining a travel visa.
b. not able to serve on state bodies.
c. a Criminal Record
Section 79 will allow the Minister to introduce regulations prescribing a range of
offences as being liable for on-the-spot-fines up to €1,000, payable within 21 days.
Payments will be made to the Health and Safety Authority and a receipt issued,
which should be kept as proof of payment.
In the event of a Civil Liability claim against an employer, a breach of the employee’s
statutory duty may be used against them to indicate contributory negligence –
examples of case law exist to support this assertion.
Employees who do not comply with safety and health rules will find it difficult to
object if their employer takes disciplinary action against them.
The Employment Appeals Tribunal has in the past ruled that dismissals based on
these grounds and following proper procedures were fair.
Section 23 covers medical fitness to work and subject to the making of specific
Regulations, which will name the types of employment concerned and under what
circumstances, it will give rights to the employer to require employees to be
assessed by a registered medical practitioner as nominated by the employer as to
fitness to carry out work which presents critical risks to the safety, health and
welfare of persons at work.
If the registered medical practitioner is of the view that an employee is unfit to
perform such work, he or she must tell the employer and indicate the likelihood of
early resumption of work for rehabilitative purposes. The registered medical
practitioner must also tell the employee and give him/her the reasons for that
opinion.
If an employee covered by this section becomes aware that he or she is suffering
from any disease or illness likely to expose him or her or any other person to an
increased risk of danger in connection with any work activity, he/she must
immediately inform their employer or a registered medical practitioner, nominated
by
the employer.
If the employer is informed as above by either a nominated registered medical
practitioner or the employee, immediate action must be taken by the employer to
comply with the general duties under Section 8 as regards the safety, health and
welfare at work of his/her employees.
Section 27 of the Act states that an employer may not penalise or threaten
penalisation against an employee for:
a) complying with legislation
b) performing duties (such as safety rep or safety committee)
c) refusing to work in a situation of serious and imminent danger.
Note: Penalisation can include suspension, demotion, transfer of duties, or change in
working hours.
Section 28 – 31 (new) contains detailed provisions on dispute resolution about
safety and health. So where the employer breaches Section 27, the employee has
rights under Section 28 to appeal such decisions.
Section 85 provides that the Health and Safety Authority may, from time to time,
compile and publish lists of names and addresses and the description of business or
other activity of persons on whom a court under safety and health legislation
imposed fines or other penalties, The list must include details, as the Authority thinks
fit, of the matter involved and the fine, penalty, notice or order concerned.
This would be negative publicity for the individual and may effect them when making
future career changes as companies will be able to check the published lists when
checking out potential candidates when filling vacancies.
What are the duties of employers under the Safety, Health and Welfare at
work Act 2005?
The following is offered as a guide for principals and deputy principals so that they
might have some understanding and information regarding the implications of the
new legislation for employers in schools. It is not a definitive guide and further
information is available from the Health and Safety Authority (free of charge) on
their website: www.hsa.ie
The Safety Health and Welfare at Work Act 2005 came into force on the 1st
September 2005. The Act is a major piece of new legislation in the area of safety and
health in the work place and replaces the 1989 Act, which established the Health and
Safety Authority (HSA).
In carrying out the duties imposed under the 2005 Act the employer is only required
to do what is 'reasonably practicable'. The Act for the first time in Irish Health and
Safety Law defines exactly what is meant by the phrase 'so far as is reasonably
practicable' means.
Section 2 (1) states that 'reasonably practicable' means:
'that an employer has exercised all due care by putting in place the
necessary protective and preventive measures, having identified the
hazards and assessed the risks to safety and health likely to result in
accidents or injury to health at the place of work concerned and
where the putting in place of any further measures is grossly
disproportionate having regard to the unusual, unforeseeable and
exceptional nature of any circumstance of occurrence that may result
in an accident at work or injury to health at that place of work'.
Accordingly a person will be held to have discharged his duties under the act if he
has:
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Identified the hazards and assessed the risks to safety and health likely to
result in accidents or injury to health at the place of work concerned
puts in place the necessary protective and preventive measures
can demonstrate that putting in place any further measures would be grossly
disproportionate having regard to the usual, unforeseeable and exceptional
nature of any circumstance or occurrence that may result in an accident at
work or injury to health at that place of work.
In determining if a precaution is 'Reasonably practicable' the courts will take into
account the risk involved in carrying out a particular hazard and the cost involved in
remedying it.
Section 8 of the Act provides that the employer must ensure, so far as is reasonably
practicable the safety, health and welfare at work of all his or her employees. It
identifies a number of duties and matters which an employer must consider.
Section 8 (2) provides that the employer must:
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Manage and conduct work, to ensure the safety, health and welfare at work of
all his or her employees
Prevent improper conduct or behaviour likely to put employees health and
safety at risk
Provide a safe work place. This includes the general structure and fabric of a
building, ventilation, temperature, lighting clearly marked walkways
Provide and maintain a safe means of access and egress. This includes both
external access and egress as well as internal access e.g. confined spaces and
ladders
Provide and maintain safe plant and machinery. This includes guarding of
dangerous parts of machinery electrical safety
Provide articles and substances that are safe to work with
Protect against noise, vibration or radiation
Provide safe systems of work
Provide and maintain welfare facilities - this includes: first aid, sanitary
facilities, seating facilities, meal-taking facilities etc.
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Provide employees the necessary information, instruction, training and
supervision to ensure their safety and health at work
Following the risk assessment required under section 19 and the preparation
of the safety statement under section 20, the employer must decide on and
implement any safety, health and welfare measures which are necessary
Where risks cannot be eliminated the employer must provide and maintain
protective clothing and equipment as appropriate and have emergency plans
in place. The primary emphasis is on attempting to control or eliminate
hazards. The provision of protective equipment is only to be regarded as a
secondary response by the employer. The requirement that the equipment be
maintained means that the employer must have a follow up mechanism to
ensure that the equipment provided is actually worn and continues to be up
to standard
Prepare adequate plans to be followed in emergencies e.g. chemical spills as
well as fire
Employers may be required by regulations to report to the Health and Safety
Authority (or to any other body given functions under section 33) accidents to
employees and dangerous occurrences
Employers must retain, where necessary, the services of a competent person
to help them meet their safety and health obligations.
Section 8 provides that an employer is under a general duty to provide employees
with the necessary information, to ensure their safety and health at work.
Section 9 sets out in greater detail the types of information on safety, health and
welfare required to be given by employers to employees under section 8.
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The information must be in a form, manner and language that is reasonably
likely to be understood. This is particularly important when dealing with
foreign nationals
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It must include information on hazards, risks and measures taken as regards
safety, health and welfare and the names of emergency staff and safety
representatives
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Employees of another employer working in the place of work must also be
informed
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The competent persons appointed under section 18 and safety
representatives, if any, must be given additional information on risk
assessment, on accidents and dangerous occurrences and information
resulting from experience of applying protective measures
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The employer must also give fixed-term and temporary employees
information on any potential risk, on health surveillance and on any skills
required for the job
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An employer who hires an employee through a temporary employment
business must inform them about the skills required for the job and its
specific features and ensure the information if passed on to the employees.
The temporary employment business is obliged to give the same information
to employees.
Section 10 sets out in greater detail the type of instruction, training and supervision
required to be given by employers to employees under section 8.
Training must 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,
On the introduction of new technology.
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Employers are obliged to instruct employees of another employer carrying out work
in their places of work of any risks. Fixed-term and temporary employees must be
given appropriate training, taking account of their qualifications and experience.
The Act outlines the type of training that should be provided.
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Instruction and training must be given in a form, manner and language that
can be understood (particularly by those who do not use English as their first
language)
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Such training must include information and instructions in the job to be
carried out
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Training must also include information and instructions on any emergency
measures that need to be taken
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Training must be adapted to changed circumstances or new risks and be
repeated periodically
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Training must be provided free of charge to employees and if required
employees must be released from work for training and without loss of pay.
Section 8 provides that an employer is under a general duty to have plans and
procedures for emergencies in place to ensure the safety and health at work of his
employees.
Section 11 sets out in greater detail the measures to be taken in emergencies.
The emergency plans and procedures must set out the procedures to be followed
when:
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Applying first aid
Fire-fighting
Evacuating employees and others present in the work place,
where there is an emergency or serious and imminent danger.
The employer must:
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Establish appropriate contacts with the emergency services
Ensure a sufficient number of employees have been properly
trained in the applying first aid, fire fighting and evacuation of
fellow employees
Provide employees with the necessary equipment
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Employees must be informed of the risk and the protective
measures to be taken in cases of emergency and imminent
danger
Procedures must be in place to inform employees when there
is an emergency or serious and imminent danger
The employer to also have in place agreed procedures for
deciding when an employee is entitled to stop work where
there is an emergency or serious and imminent danger
Where there is serious specific danger present in part of the
place of work the employer must ensure that only employees
given appropriate instructions have access.
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Workers may not be required to carry out or resume work while this serious and
imminent danger continues. An employee cannot be penalised for leaving the place
of work to go to a safe place if he reasonably believed that there was an emergency
or serious and imminent danger section 27.
Section 12 addresses the general duties of employers and the self-employed to
persons other than their employees.
It provides that an employer must manage and conduct his business, so far as is
reasonably practicable, so that other persons present in the place of work are not,
exposed to risks to their safety, health or welfare.
This would cover members of the public or other visitors to a place of work. This can
include uninvited visitors, in other words trespassers.
Section 15 of the 1989 Act deals mainly with duties of employers to contractors.
This has particular relevance to construction sites where many of the skilled
craftsmen would be independent contractors and self-employed
Section 15 imposes duties on the person who has control over a place of work to
ensure that, so far as is reasonably practicable:
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The place of work, is safe and without risks to health
Access to and egress from the place of work are safe and
without risks to health
Any article of substance in the place of work is safe and
without risks to health.
Finally, Section 23 of the Act gives the right to the employer, subject to the making
of the specific regulations (which will name the types of employment concerned) to
require employees to be assessed by a registered medical practitioner as to fitness to
carry out work which presents critical risks to the safety, health and welfare of
persons at work. The regulations will name the types of employments concerned and
under what circumstances the employer can request the examination to take place.
If the registered medical practitioner is of the view that an employee is unfit to
perform such work, he or she must tell the employer and the employee, giving the
reasons for it and the likelihood of early resumption to facilitate rehabilitation. If an
employee covered by this section suffers any disease or illness likely to add to risks,
he or she must immediately tell the employer. If the employer is informed as above
by either the registered medical practitioner or the employee, action must be taken
by the employer to comply with the general duties under section 8 as regards a safe
place of work etc.
Implications of section 80 of the Safety, Health and Welfare at Work Act
2005 for directors (senior managers) and undertakings
The following is offered as a guide for principals and deputy principals so that they
might have some understanding and information regarding the implications of the
new legislation for senior management in schools. It is not a definitive guide and
further information is available from the Health and Safety Authority (free of charge)
on their website: www.hsa.ie
Legislation recognises that individuals are protected under a “company“ structure,
but with the introduction of the 2005 Safety, Health and Welfare at Work Act
directors and senior managers can be prosecuted under Section 80 if they fail in their
duties in relation to health and safety. This is a new development because even
though the Act places responsibilities for occupational health and safety on all the
stakeholders within an organisation it makes special reference to the importance of
the role of directors and senior management.
Before dealing with the specifics of Section 80 it is important at this stage to define a
“Director” and an “Undertaking”. These are defined in Section 2 of the Act
(Interpretation). A director is defined as including a person in accordance with whose
directions or instructions the directors of the undertaking concerned are accustomed
to act. With regard to senior managers the Act seems to apply to those managers
and other officers who have an input into corporate policy, that is those who have
executive functions in an organisation. It suggests that the director or senior
manager is a figure within the organisation who has a defining role and input into
policies (including health and safety) and implementation of same within that
company.
An “undertaking” is defined as a person, being an individual, a body corporate or an
unincorporated body of persons engaged in the production, supply or distribution of
goods or the provision of a service – this would indicate that Section 80 applies to
both the public and private sector and to profit and non–profit organisations (i.e.
schools).
Section 80 of the Act details the liability of directors and officers of an undertaking.
Most prosecutions under the 2005 Act and regulations will continue as in the past, to
be against the employer as a corporate body ( in our case the Board of Management)
rather than any individual. However Section 80 provides that in certain
circumstances senior managers and officers in the organisation can be prosecuted
and convicted.
Section 80 provides that:
When an offence, under health and safety laws
is committed by an undertaking
and the acts involved were
authorised or consented to
or were
attributable to connivance or neglect on the part of
a director, manager or similar officer in the undertaking
or a person acting in such a capacity
both the person and the undertaking
will be guilty of an offence
and liable to be proceeded against and punished as if the person was guilty of
the offence committed by the undertaking.
Accordingly, for a director or senior manager to be prosecuted or convicted it must
first be proven that they:
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authorised the offence
consented to the offence
the offence was as a result of the directors / managers connivance or neglect.
However, Section 80 (2) introduces a new presumption that the director or senior
manager consented or was neglectful, unless he/she can disprove this. This
underlines the need for directors and managers to be proactive in their position.
The crucial question is who is in charge at a high level within the organisation? The
answer is that it includes the board of management and other persons who control
the affairs and property of the organisation, namely any person whose duties include
making decisions (within a school context it could include principals and deputy
principals).
There have been a number of Irish and English cases on this issue and it seems that
Section 80 of the 2005 act only applies to directors/managers who have had an input
into corporate policy, that is, those who have executive functions in the organisation.
It is also clear that if a person has no real responsibility for the matter in question
they cannot be prosecuted under section 80 of the 2005 Act.
Section 77 states that a person having duties under the Act, is guilty of an offence
if another person suffers a personal injury as a consequence of them breaching their
statutory duties. This section sets out the full range of offences applicable under the
Act.
Section 78 provides for a fine under summary jurisdiction not exceeding €3,000 for
a person guilty of an offence under the first category of offences set out in Section
77(1). A person found guilty of any other offence set out in Section 77 is liable, on
summary conviction (in the District Court) to a fine not exceeding €3,000 and/or up
to 6 months imprisonment. Charges brought on indictment (in the Circuit Court) may
lead to a fine not exceeding €3 million and/or 2 years imprisonment.
Failure to comply with the duties results in criminal prosecution for breech of duty
and can lead to:
d. difficulties obtaining a travel visa.
e. not able to serve on state bodies.
f. a Criminal Record
Section 79 will allow the Minister to introduce regulations prescribing a range of
offences as being liable for on-the-spot-fines up to €1,000, payable within 21 days.
Payments will be made to the Health and Safety Authority and a receipt issued,
which should be kept as proof of payment.
Section 85 provides that the Health and Safety Authority may, from time to time,
compile and publish lists of names and addresses and the description of business or
other activity of persons on whom a court under safety and health legislation
imposed fines or other penalties, The list must include details, as the Authority thinks
fit, of the matter involved and the fine, penalty, notice or order concerned.
This would be negative publicity for the both the organisation and the individual and
may effect an individual when making future career changes as companies will be
able to check the published lists for the above area when checking out potential
candidates when filling vacancies. The company may also suffer when seeking new
contracts with large organizations that have exemplary safety records and may not
wish to be associated with a company who have failed in this area.
Irish case law has established detailed principles that apply when imposing a fine on
a company or a director and have also identified a list of aggravating (things that go
against you) and mitigating factors (things that work in your favour) that would
influence the court.(DPP v Roseberry Construction Limited and McIntyre; DPP v Oran
Precast.)
In Ireland there have not yet been any convictions of manslaughter to an individual
in a company or organisation but it is very likely that this will change in light of new
legislation.