Page 33 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM FURTHER INDUSTRY-SPECIFIC REGULATION
Employers should be aware that additional legislative provisions may apply depending on on on on on the the particular industry in in in in in which the the employer operates for example construction healthcare quarrying shing catering and hospitality etc A full list of of occupational health and and safety legislation legislation dangerous substances legislation legislation and and associated codes of of practice can be found on on the HSA website 12
In addition the HSA has issued a a a a a a a a a number of of of codes of of of practice which may be be of of of of relevance when assessing an an employer’s obligations regarding outdoor workers (HSA Code Code of of of of Practice Practice for for Working on Roads Code Code of of of Practice Practice for Roof Work etc) VI LIABILITY AND ENFORCEMENT
Workplace accidents may may expose employers to the the risk of litigation and reputational damage In serious cases the the the employer employer may may also be exposed to the the risk of criminal prosecution The HSA is is is responsible for for inspecting and and and and enforcing health health and and and and safety safety obligations and and and and and identifying issues with with health health health and and and and and safety safety safety compliance compliance On nding there is is is is an an an an an an an an issue issue with with health health and and and safety safety compliance compliance HSA inspectors may serve notice(s) on on the the relevant organisation requiring that certain issues be remedied within a a a a a a a a a a particular timeframe The HSA inspector may also apply to to the the High Court for an order prohibiting or or or or restricting the the use of of a a a a a a a place of of work 13
Courts may also also impose nes nes or or or or prison sentences (or both) depending on on the the the the seriousness of of the the the the o o o o o o o o o o o o o o o ence ence The HSA also also has the the the the right to to publish the the the the names and addresses of of those subjected to to a a a a a a a prohibition notice High Court order or or a a a a a a a penalty following a a court conviction 14
Under the 2005 Act directors and senior managers carry particular responsibilities if it it it can be shown that an an an an an o o o o o o o o o ence committed by their their undertaking was attributable to neglect connivance consent
or or authority on their their part The duty has also been extended to others with responsibility for safety in in particular workplaces such as as the the the project project engineer on on on on on a a a a a a a a a a a a road alignment project project and the the site site manager on on on on a a a a a a a a a a a a construction site site 16 Outside of the 2005 Act an employee could take proceedings against their employer alleging they have su ered a a a a a a personal injury as a a a result of their their employment and their their working conditions/ workplace hazards etc It is important to note that such a a a a a a a cause of of action could be alleged in in in respect of of working in in in Ireland working overseas or or in in in transit depending on the circumstances The obligations of employers under the 2005 Act and indeed the the common law duty of care are are not restricted in their application to to Ireland and and and the the health and and and safety of employees has to to therefore be considered in the context of overseas travel also Finally a a a a whistleblower report alleging wrongdoing on on the part of of an an an an organisation based on on the health and safety of of an an an an individual being or likely to be be be endangered may be be be considered a a a “protected disclosure” within the the meaning of the the Protected Disclosures Act 2014 meaning that an an individual who makes such a a a a a a disclosure will have certain statutory protections in in respect of their actions ARTHUR COX 2017
Kevin Langford - Partner kevin langford@arthurcox com www arthurcox com 1 1 https://www pwc pwc ie/media-centre/assets/publications/2015-pwc-ireland-gem-moving- people-with-purpose pdf 2 2 2 S S S 2 2 2 (6) Safety Health and Welfare at at at Work Act 2005 3
The HSA is is a a a a a a a a a a a a a a a national statutory body established in in in 1989 with responsibility for for ensuring that workers are protected from work work related injury and and and ill-health through enforcement of of of occupational health health and and and and safety law promotion of of of accident prevention and and and and provision of of information and and advice across all sectors 4
[1937] UKHL 2 5 Bradley v v CIE [1976] IR 217 6 6 6 Dalton v v v v Frendo unreported Supreme Court 15 December 1977 7 7 7 7 7 subsequent Directive Directive Directive on on on on posted workers - Directive Directive Directive (2014/67/EU) on on on on the the enforcement of of Directive Directive Directive 96/71/EC was transposed into Irish law by the the European Union (Posting
of of Workers) Regulations 2016 8 [2002] IEHC 15 9 http://www hsa ie/eng/ News_Events_Media/ News/ Press_Releases/55_People_killed_in_
work-related_accidents_in_2015 html 10 [2003] EWCA Civ 306 11 HSA HSA Annual Summary of Injury Illness and and Fatality Statistics Statistics HSA HSA 30 30 June 2015 available at: http:// www www hsa hsa ie/eng/Publications_and_Forms/Publications/Corporate/Statistics_Report_2014 html? 12
http://www hsa hsa ie/eng/Your_Industry/
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Sections 68 and 71 of of the the 2005 2005 Act Act 14
Section Section Section 85(2) of of of the the the 2005 2005 2005 Act Act 15 Section Section 8 8 of of the the 2005 2005 Act 16 http://www arthurcox com/publications/health-safety-duties-personal-liability-fault/
15 WORKPLACE ACCIDENTS MAY EXPOSE EMPLOYERS TO THE RISK OF LITIGATION AND REPUTATIONAL DAMAGE IN SERIOUS CASES THE EMPLOYER MAY ALSO BE EXPOSED TO THE RISK OF CRIMINAL PROSECUTION • DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS 33