Accidents – Are you at Risk?

The Health and Safety Authority, the legislative regulatory body charged in Ireland with promoting and protecting the health, safety and welfare of persons in the workplace, recently published their workplace fatalities statistics for 2017.    It provides for sobering reading.[1]

47 people, including 1 child, were killed in workplace accidents in Ireland last year; of those fatalities 14 of them were to farmers aged 65 and older.  Cork recorded 6 fatalities in 2017 alone.  18 were self-employed persons, 15 were employees, 7 non-workers and 7 family workers.

This means that for 47 families last year someone went out to work and never returned.

Workplace health and safety affects everyone in society.  it is estimated that the costs of absenteeism, due to injuries at work, to employers runs to millions of euro each year and can cost the economy as a whole, several billion euro a year.

What Constitutes a Workplace?

The first thing to understand is what defines a place as a workplace.  The 2005 Act sets out a clear definition and it can be seen from case law as well that a workplace is not limited to a traditional building, office or factory and also incorporates mobile workplaces such as car, vans or lorries.

Employer Duties to Minimise Accidents at Work

Both the employer[2] and the employee[3] have duties of care under the 2005 Act, as well as a common law duties.

For employers, it is important that they;

• Provide and maintain a safe workplace, machinery and equipment.
• Manage work to ensure the safety health and welfare of employees.
• Assess risks and provide a safety statement.
• Provide necessary welfare facilities (such as bathrooms) and other welfare facilities as are necessary for the type of workplace.
• Prepare and update emergency procedures.
• Provide appropriate training and information.
• Report serious incidents to the Health and Safety Authority. Accidents must be reported to the Health and Safety Authority where the injury results in your employee being unable to carry out their normal work for more than three consecutive days, excluding the day of the accident.

The majority of prosecutions arise from failures by employers to ensure their duty of care to their employees.

In addition to the duties owed to employees, employers have legal obligations under Section 12 of the 2005 Act, to safeguard the health and safety of others, at their workplaces. Failing to address those obligations exposes employers to criminal and civil liability.

Employee Duties to Minimise Accidents at Work

For employees, it is important that they;

• Comply with relevant Health and Safety Law, both in the 2005 Act and elsewhere.
• Take reasonable care to protect their safety and that of others affected by their acts or omissions.
• 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.
• If reasonably required, to submit to appropriate tests for intoxicants under the supervision of a competent registered medical practitioner.
• Co-operate with their employer to help in complying with safety legislation.
• Not engage in improper conduct or behaviour that is likely to endanger safety or health.
• Attend appropriate training and instruction given by their employer.
• 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.
• Report to their supervisor, or other appropriate person: work being carried out in a manner, which may endanger health or safety.

Most prosecutions under section 13 have resulted from a failure to ensure the health and safety of others or failure to adhere to training or use equipment properly.

INDIVIDUAL RESPONSIBILITY AND SECTION 80.

Individuals, who are neither an employee nor a manager or director, can also owe health and safety duties. Section 14 imposes a duty on all persons not intentionally, recklessly or without reasonable cause, to interfere with anything provided for securing health and safety at work, or otherwise place at risk the safety of persons in connection with work activities. This is a very broad duty and has been used to secure convictions against individuals on a number of occasions, such as where safety equipment is removed or tampered with, resulting in an accident, or where failure by a site foreman to ensure proper warning signs on road works resulted in a collision.

Individuals who are managers or directors should also be mindful of Section 80 of the 2005 Act which states that “Where an offence under any of the relevant statutory provisions has been committed by an undertaking and the doing of the acts that constituted the offence has been authorised, or consented to by, or is attributable to connivance or neglect on the part of, a person, being a director, manager or other similar officer of the undertaking, or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence”.

WHAT CAN YOU DO?

As a first approach individuals can ensure that the legislative requirement for risk assessments and safety statements as set out in Sections 19 and 20 of the 2005 Act is implemented. It is also important for individuals to recognise their personal responsibility for health and safety whilst at the same time delegating the organisational responsibility for health and safety to one director or manager makes practical sense.

There have been a number of prosecutions against individuals under Section 80, and on these occasions suspended sentences have been handed down for such incidents as machinery on a construction site overturning and fatalities occurring.

A person found guilty of an offense set out under the 2005 Act 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.

No one wants to have a workplace accident or fatality and there are steps to assist both employers/employees to ensure this does not happen.  Health and Safety legislation, practices and procedures are designed to do one very important thing, to save lives.

Should you as the employer/employee seeks advice on what to do next from a legal point of view. 

Halpin and Co., solicitors are specialists in the area of Health and Safety and are best placed to assist you with your queries.  Please contact us by telephone on 021-425-1843 or email at info@halpingsolicitors.ie and we will be happy to advise you.

[1] http://www.hsa.ie/eng/News_Events_Media/News/Press_Releases_2018/Elderly_farmers_most_likely_to_be_involved_in_fatal_work_related_accidents.html

[2] Section 8 of the Safety Health and Welfare at Work Act 2005.

[3] Section 13 and 14  of the Safety Health and Welfare at Work Act 2005