Duties to employees and visitors
Safety of employees
The basis of British health and safety law is the Health and Safety at Work etc Act 1974. The Act sets out the general duties, which employers have towards employees, members of the public, and those that employees have to themselves and to each other.
These duties are qualified in the Act by the principle of 'so far as is reasonably practicable'. An employer does not have to take measures to avoid or reduce the risk if they are technically impossible or if the time, trouble or cost of the measures would be grossly disproportionate to the risk. Employers therefore should look at what the risks are and take sensible measures to tackle them.
Operators cannot solve their safety problems by simply introducing a one-off technical measure following an accident. This reactive approach fails to address the accident causation chain and does not identify underlying weaknesses in the safety management system of the operator. Operators must develop a pro-active approach to managing risks.
The starting point is to establish a safety management system based on acknowledged good practice. There are a number of publications that can assist an operator with this. The principal advice from the regulator can be found in HSG65: Managing for health and safety.
The Management of Health and Safety at Work Regulations 1999 set out in more detail what employers are required to do to manage health and safety. One of the main requirements is to carry out a risk assessment. Employers with five or more employees need to record the findings of the risk assessment.
The enforcement of this legislation is largely the province of the Health and Safety Executive and local authorities, although the police, Crown Prosecution Service (England and Wales). the Procurator Fiscal Services (Scotland) and the Public Prosecution Service (Northern Ireland) can also be involved, particularly where a death has occurred.
Safety of visitors
The Health and Safety at Work etc Act 1974 places a duty on employers to ensure, as far as is reasonably practicable, that in the course of their undertaking members of the public are not put at risk. Furthermore, the Management of Health and Safety at Work Regulations 1999 require an employer to make a 'suitable and sufficient assessment of the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking'. So the duty to carry out risk assessments extends to visitors as well as employees.
A further statutory duty towards visitors arises under the Occupiers Liability Act 1957. An occupier of premises (this can include the beach and equipment upon it, like staging and diving boards) has a duty of care to any visitors using the premises for the purposes for which they are permitted or invited to be there.
In addition, the civil law allows injured people to make a claim for damages where they can prove that they were owed a duty of care and that there was a breach of that duty that led to their injury. This is known as the 'common law duty of care' and the duty arises if:
- there is sufficient proximity between the operator and the person injured,
- it was reasonable to foresee that harm may result from the actions of the operator,
- it is fair, just and reasonable to impose a duty of care on the operator.
Therefore, in the same way as ensuring the safety of employees whilst at work requires a pro-active management approach, this extends to visitors too. Again, the starting point is to establish a safety management system based on acknowledged good practice.
Understanding the statutory and common law duties and applying them to a particular situation is not without difficulty. Further guidance can be found in the Maritime & Coastguard Agency publication, 'Managing Beach Safety' and RoSPA's 'Safety at inland Waters'. In addition, The Visitor Safety Group (VSG) has published advice.