Health and Safety in Scotland: what you need to know
In the 2022-2023 period, there were 35.2 million days lost due to self-reported work-related illness or workplace injury for people working in Great Britain according to the Labour Force Survey.[1] That works out at an average of 1.31 days per worker. Although this is a reduction from previous years, it is still an increase on the pre-coronavirus 2018-2019 statistics. This is mainly due to an increase in work-related stress and anxiety, but also shows the importance of workplace compliance with Health and Safety regulations across all industries and sectors to avoid lost working days and injury or illness for workers.
The Law
The Health and Safety at Work etc. Act 1974 (“the Act“) is the primary piece of legislation covering occupational health and safety in the UK. It applies to people, not premises, and its purpose is to secure the health, safety and welfare of persons at work. The law applies to you if you are an employer, if your work activity is specially mentioned in the regulations (agriculture, construction, etc.), or if your work activity poses a risk to the health and safety of anyone else.
Section 2(1) states:
“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.” [emphasis added]
This duty is qualified by the term “reasonably practicable“. The test of what is reasonably practicable is not merely whether preventative measures were physically or financially possible, but for employers to demonstrate that they have weighed the degree of risk against the sacrifice involved in the health and safety measures necessary to take adequate precautions.
Section 3(1) states:
“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
This duty is intended to protect an employer’s contractors and subcontractors (and their employees), their customers, members of the public – anyone affected by the employer’s work activities. For the purpose of this section, the definition of “undertaking” is wide-ranging. It is not limited to the employer’s core business activities, but in many cases would extend to ancillary or peripheral activities (e.g. cleaning or catering). The duty applies whenever an employer carries out work activities or where an employer has contracted-out or outsourced that work activity to someone else. Therefore, whilst employers can outsource work, they cannot outsource the duty to see that it is carried out safely. An employer should therefore take reasonably practicable steps to ensure that their contractor is competent and able to carry out work safely. This can be done by making enquiries as to the contractor’s health and safety record and checking that the contractor has a health and safety policy, as well as having carried out the relevant risk assessments. This duty is qualified by the same reasonably practicable requirement in the same way as section 2 of the Act.
Interestingly, these duties do not apply to self-employed persons whose work activity poses no potential risk to the health and safety of other workers or members of the public. The HSE estimated that this exempts around 1.7 million self-employed people.[2] However, self-employed or not, those who create the risk and those who are at risk, should take positive action to reduce and eliminate hazards.
The Act has powerful criminal sanctions and other enforcement powers, which will be dealt with in the next instalment of our Health and Safety in Scotland series.
Should you require any assistance in respect of health and safety compliance in your workplace, please contact Laura.McCabe@dwf.law or Kirsty.Waughman@dwf.law.
[2] http://www.legislation.gov.uk/uksi/2015/1583/contents/made
