BLG Health & Safety Developments-Spring 2004

Author:Ms Valerie Fogleman
Profession:Barlow Lyde & Gilbert

DANGEROUS SUBSTANCES AND†EXPLOSIVE ATMOSPHERES. On†30 December, the Health and Safety†Executive ("HSE") published the fifth and†final approved code of practice ("ACOP")†supporting the Dangerous Substances and†Explosive Atmospheres Regulations 2002.

The ACOP is intended to help employers†eliminate or reduce fire and explosion risks†from dangerous substances. It contains†practical guidance, such as the factors to†consider when performing risk assessments,†as well as approved code material. It also†explains how the Dangerous Substances and†Explosive Atmospheres Regulations 2002 sit†alongside other relevant law.

WORKING AT HEIGHT. On 4 December,†the Health and Safety Commission†commenced a consultation on draft new†regulations and guidance on working at†height.

The aim in producing the draft regulations†and guidance is to bring together all the†current legal requirements for safe work at†height. They adopt a risk-based approach.†Responses to the consultation are required†by 4 April.

EMPLOYERS' HEALTH AND SAFETY†DUTIES: On 23 October, in R (on the†application of Junttan Oy) v Bristol†Magistrates Court, the House of Lords†held that the HSE could choose to†prosecute a company under the Health and†Safety at Work etc Act 1974 ("HSWA")†(with the prospect of higher fines) rather†than under more specific regulations,†introduced to implement an EU Directive,†that cover the same ground.

Following a fatality resulting from a piling rig†designed, manufactured and supplied by†Junttan Oy, the HSE decided to proceed†against Junttan Oy under the general†employers' duties contained in Sections 3†(safety of third parties) and 6 (safety of†articles used at work) of HSWA, which carry†an unlimited fine in the Crown Court. It†decided to proceed in this way rather than to†prosecute for breach of the duty contained in†Regulation 11(1) of the Supply of Machinery†(Safety) Regulations 1992 (which implements†Directive 98/37/EC (the "Machinery†Directive") in the UK) which carries a†maximum fine of £5,000.

The House of Lords had to consider whether†the co-existence of the two sets of duties is†compatible with the UK's obligations under†the Machinery Directive. By a majority, the†House of Lords decided that they were and†that the HSE was entitled to choose the basis†for the prosecution in this way.

ROAD VEHICLES/MOBILE†TELEPHONE. On 1 December, the Road†Vehicles (Construction and Use)†(Amendment) (No. 4) Regulations 2003†(SI 2003/2695) came into force.

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