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Extra resources for Introduction to Health and Safety at Work, Fourth Edition
The breach resulted in the speciﬁc injury, disease, damage and/or loss suffered. These tests should also be used by anyone affected by the employer’s undertaking (such as contractors and members of the public) who is suing the employer for negligence. If the employer is unable to defend against the three criteria, two further partial defences are available. It could be argued that the employee was fully aware of the risks that were taken by not complying with safety instructions (known as volenti non ﬁt injuria or ‘the risk was willingly accepted’).
But some hazards are so great, or the proper control measures so expensive, that employers cannot be given discretion in deciding what to do about them. Regulations identify these hazards and risks and set out speciﬁc action that must be taken. Often these requirements are absolute – employers have no choice but to follow them and there is no qualifying phrase of ‘reasonably practicable’ included. Some Regulations apply across all organizations – the Manual Handling Regulations would be an example.
However, they also deal with appeals over health and safety enforcement notices, disputes between recognized safety representatives and their employers and cases of unfair dismissal involving health and safety issues. There are usually three members who sit on a tribunal. These members are appointed and are often not legally qualiﬁed. Appeals from the tribunal may be made to the Employment Appeal Tribunal or, in the case of enforcement notices, to the High Court. Appeals from tribunals can only deal with the clariﬁcation of points of law.