Question for the legal eagles?

dmg24

dpassmore wrote: »

Health Safety and Environmental.

As above, the HSE Regs are a piece of delegated legislation, enforced by the Health and Safety Executive.

Health Safety and Environmental is a term that some organisations name depts that deal with the above, but is not the name of the legislation.

celinepatricia

He worked for a company with 100+ workers. Could we appeal this on a point of law then if the hse legislation states that a risk assessment must be documented for workplaces with more than 5 employees?

dmg24

celinepatricia wrote: »

He worked for a company with 100+ workers. Could we appeal this on a point of law then if the hse legislation states that a risk assessment must be documented for workplaces with more than 5 employees?

Did the Tribunal actually rule that the lack of written assessment was not an issue, was it fundamental to the decision? A breach of H&S law does not automatically give the employee a right to sue/ Tribunal.

dickydonkin

dmg24 wrote: »

As above, the HSE Regs are a piece of delegated legislation, enforced by the Health and Safety Executive.

Health Safety and Environmental is a term that some organisations name depts that deal with the above, but is not the name of the legislation.

My response was in context to the following quote:

And, no, I'm not a legal eagle either, just have done it many many times in the past and had to follow the HSE regs.

There is no such thing as 'Health & Safety Executive Regulations', however there are many (far too many) Health Safety & Environmental Regulations which I understood what mizzbiz was referring to.

The myriad of regulations we have are concocted by parliament (not the HSE) and moreso now by the EU and as correctly stated above, the Health and Safety Executive are the enforcing body for the numerous laws that have to be conformed to.

dmg24 wrote: »

Did the Tribunal actually rule that the lack of written assessment was not an issue, was it fundamental to the decision? A breach of H&S law does not automatically give the employee a right to sue/ Tribunal.

The absence of a documented/recorded risk assessment is not necessarily a breach of Health & Safety legislation - irrespective of the number of employees.

celinepatricia

dpassmore wrote: »

The absence of a documented/recorded risk assessment is not necessarily a breach of Health & Safety legislation - irrespective of the number of employees.

So, if somebody has an accident in work and there is no risk assessment documented and it is not a breach of H&S legislation, what is the point of having them in the first place?

dickydonkin

celinepatricia wrote: »

So, if somebody has an accident in work and there is no risk assessment documented and it is not a breach of H&S legislation, what is the point of having them in the first place?

If you read my post properly without shooting from the hip..........

I stated:

The absence of a documented/recorded risk assessment is not necessarily a breach of Health & Safety legislation - irrespective of the number of employees.

For example, someone could carry out a risk assessment on a process, machine or activity and following the assessment it was deemed that there were no foreseeable or significant risks/findings, then no recording/documentation of the risk assessment would be necessary.

It is only a legal requirement to record the SIGNIFICANT FINDINGS of a risk assessment and if there are no significant findings or foreseeable risk(s), then it is pointless recording the assessment and well within the law not to do so.

In the situation you have quoted, if someone has had an accident where there was a foreseeable risk and no risk assessment had been undertaken, then that is different and there is potential for a breach of section 3 of the Management of Health & Safety Regulations.

On the other hand, there is a risk of a paper cut when opening a pack of paper - would you record a risk assessment for that?

For goodness sake, if every activity that we all did at work required a written/documented risk assessment, then you would need a large cupboard or plenty of disk space to store the stuff!

I will reiterate that there are some circumstances where it is not required to have a recorded/documented risk assessment.

Regulation 3(6) (MOH&SAW)

Where the employer employs five or more employees, he shall record—
(a)the significant findings of the assessment; and
(b)any group of his employees identified by it as being especially at risk.

celinepatricia

I'm sorry you think Im shooting from the hip!!

The reason I asked the question in the first place was my husband was off work having surgery, his consultant, GP and even the ESA medical (who awarded him zero points with no limited capability for work) all agreed he was capable to go back to work to do his own job.
The works occupation health doctor disagreed and the judge even called his report a "pithy report" was what his boss used to sack him. When asked if he had done a risk assessment for my husband he said he had thought about it so there for it was done. I just find it very difficult to understand how this could be accepted in a court of law when somebodys livelyhood has been taken away from them.

Googlewhacker

so is it on going or has a judgement been made?

celinepatricia

Judgement been made. My husbands ex-boss lied his way through the whole thing under oath but the judge prefered to believe him. I know I sound bitter, but, I am so shocked that people get away with these things, it is beyond belief. It just seems like the ordinary man on the street is kicked in the teeth once again.

dickydonkin

When asked if he had done a risk assessment for my husband he said he had thought about it so there for it was done.

Now that is certainly an instance where I would record a risk assessment when someone is returning to work following an injury by virtue of the fact there is certainly a foreseeable risk of exacerbating any underlying medical issues.