Safety first

The tightening of Irish health and safety legislation could result in personal liability for employers. Donal Dunne reports on the key changes

Underlying trends show that since 1999, there has been a 17 per cent drop in the injury and illness rate at work in Ireland, despite significant increases in the workforce. However, in 2003 alone, 65 people died from work-related accidents, according to irishhealth.com). A number of measures to tighten work-related health and safety legislation are progressing in Ireland, with the Safety, Health and Welfare at Work Bill 2004 expected to be enacted before the summer of 2005.

In recent weeks, in the course of debates on the Bill in Dail Eireann, the Irish Minister for Labour Affairs Tony Killeen TD has given an undertaking to carry out a study on the impact of the bill on competitiveness and the economy in Ireland. It is intended that this study will begin as soon as possible with a view to completion before 1 November 2005.

The bill will introduce new liabilities for directors and senior managers. Under the proposed legislation, for the first time, employers and senior managers could be personally liable for breaches and could face either two years’ imprisonment or a maximum fine of up to e3m (£2m) on conviction on indictment.

The key changes proposed by the bill include:

  • A recognition and validation scheme for academic, vocational, health and safety qualifications. Employers are obliged to engage at least one competent person to assist in the formulation and development of health and safety policy, or to ensure that a “competent” health and safety expertise is outsourced.
  • Section 2 (2) of the bill reiterates the definition of a “competent person” which was inserted in the Safety, Health & Welfare at Work (general application regulations) 1993. Account shall be taken of the qualifications referred to in the Qualifications (Education and Training) Act, 1999.
  • Section 2 (6) of the bill contains the first statutory definition of the words “reasonably practical”. The definition states that “every employer shall ensure, so far as it is reasonably practicable, the safety, health and welfare at work of his or her employees”. This definition imposes a high standard on employers by obliging them to prove that they have taken all reasonably foreseeable steps against risk.

Penalties – civil and criminal

The 2004 bill introduces new significant penalties. They include:

  • Imprisonment of up to six months and a maximum fine of €3,000 (£2,000) in the District Court; two years’ imprisonment and/or a maximum fine of up to €3m (£2m) on conviction on indictment; on-the-spot fines for offences to be prescribed which will carry a maximum penalty of €1,000 (£680) (it is assumed these will be for offences where no injury has resulted).
  • Personal liability for those in senior management positions in corporate bodies, which includes directors or persons whose duties included making decisions that could have affected the management of the undertaking. The bill introduces a presumption that a director consented or was neglectful in their duties under the bill unless they can disprove this.
  • The bill provides that the Health and Safety Authority can compile a list of persons who have been convicted or served with a prohibition notice or in respect of whom an interim or interlocutory order was made by the court (ie, “name and shame”).

The duties of employers to employees

The bill places a heavy emphasis on the management of health and safety, including an obligation to review safety statements annually. The bill also provides for the provision of protective equipment at no cost to the employee and information in a language that “is reasonably likely to be understood by the employee”, which clearly anticipates the requirements of non-nationals.

General duty of employees

Section 13 repeats the general duty of employees to comply with relevant health and safety laws and reiterates some new provisions which have been somewhat controversial:

Not to be under the influence of an intoxicant at a place of work.

To submit, when requested, to an appropriate test reasonably required to do so by an employer.

Not to engage in improper conduct or behaviour.

To attend such training as may be reasonably required by the employer.

To report to their employer any work that is carried on or likely to be carried on in a manner which may endanger the Safety, Health & Welfare at work of that employee or any other person.

Report any contravention of the relevant statutory provisions of which they are aware.

Consultation and safety representatives

The bill seeks to integrate disputes regarding health and safety issues into mainstream human resource dispute resolution. It provides for selection of safety representatives which is not mandatory. Section 27 of the bill provides that an employer may not penalise or threaten penalisation against any employee for complying with safety legislation or refusing to work in a situation of serious and imminent danger. Appeals against any action and breach of Section 27 may be brought to a rights commissioner in the Labour Relations Commission and on further appeal can be brought to the Employment Appeals Tribunal.

From an employment law perspective, it is submitted that the most important and practical change may well be Section 27. The bill allows for issues which include not only any act by an employer, but also any “omission” by an employer or a person acting on behalf of an employer which affects an employee to their detriment. This would certainly include new health and safety issues such as stress and bullying, and a rights commissioner may order unlimited compensation (as opposed to the limit of two years’ remuneration in the Employment Appeals Tribunal) and mandatory relief. Disagreements as to whether or not an issue involves a breach of health and safety law would go before a rights commissioner pursuant to the above section, and a mandatory dispute resolution process which is triggered by employees is likely to become a fact of life for employers on implementation of the bill.

Conclusion

It can be seen from the above that the bill, while retaining the main provisions of the 1989 Act, has now gone some way beyond the provisions of the current legislation. It remains to be seen how the Health and Safety Authority will use any new powers that it obtains in the future. It is also clear that Section 27 of the bill may provide for the most important change in health and safety law in contentious matters between employers and employees.

Donal Dunne is an associate at Eugene F Collins