Posted By Adrian Watson
The 5 or more employees was first used in the health and safety policy exceptions regulations 1977 to exempt employers from having to have a written health and safety policy where they employed 5 or more employees for the time being. This exemption was allowed on the basis that you could have very efficient communication between small groups of persons.

As many of the directives from Europe allowed for measures to prevent small businesses from being burdened by bureaucratic measures, the 5 or more employees was incorporated into UK legislation.

It should be noted that the wording of this requirement is "where an employer, employs 5 or more persons", meaning that it applies to a place or position i.e. location.

Regards Adrian Watson

Posted By Jonathan Sandler CMIOSH
you might wish to read section 2.3 hasawa 74 states under 5 and over 5.

Posted By Adrian Watson
Yes, it can and there is case law to that effect!

Regards Adrian Watson

Posted By Adrian Watson
Cheers Paul,

Glued to my seat.

Regards Adrian

Posted By Adrian Watson
Dear All,

S2(3) states "Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees."

Regards Adrian Watson

Posted By Adrian Watson
"where"

A adv.

1 In or at what place.

2 To what place.

3 gen. In what situation or circumstances; at what point or stage; ...

Oxford New shorter English Dictionary 1997

Having regard to the earlier regulations and Osborne v Bill Taylor of Huyton Limited 1982 I suggest 1 is the interpation; I don't know if "where" has been legally defined.

Regards ADrian Watson

Posted By MarkS
Blimey, I'm not sure if I stand corrected or not...!

Just to be on the safe side, hypothetically of course, were I to have a company with twelve employees in four different locations I recon I would knock up a quick policy statement.

Posted By gham
Mark

Ask youself the question, would it hurt to have one.......

Think Not!

Posted By Alan Hoskins
Hi,

I'm not familiar with the case mentioned, but I would interpret 'where' in the third sense of Adrian's list - effectively the equivalent of 'if'.

This appears to be supported by Tolley in this extract from their H&S at Work loose leaf (ManRegs): "Employers must make and give effect to appropriate 'arrangements' for the effective planning, organisation, control, monitoring and review of preventive and protective measures. Records should be kept of these arrangements by those with 5 or more employees".

'Where' is used in a similar sense throughout H&S legislation, such as "Where it is not reasonably practicable to prevent exposure..."

Alan

Posted By Arran Linton - Smith
Try the Employers' Health and Safety Policy Statements (Exception) Regulations 1975. SI 1975 No. 1584

I remember this remote piece of information from when I undertook my NEBOSH Diploma!

Posted By Arran Linton - Smith
Dave,

Yes, but I was answering the original thread question.

Posted By Adrian Watson
Mark,

Whilst I agree that HELA circular may say this, interpretation of the law is matter for the courts. OED defines "undertaking" as ... "1b. An action, task, etc., undertaken or begun; an enterprise. c The action of beginning or taking on an enterprise, task, etc."

OED also defines "business" as "a commercial house, a firm" and "establishment" as "an institution or business; the premises or personnel of this".

From that I would suggest that undertaking as meaning "the taking on an enterprise"; this is more restrictive than business or establishment. If parliament had meant premises they would have said so! A business may have more than one undertaking; what is a separate undertaking is a matter of fact!

Regards Adrian Watson

Posted By Tony Brunskill
All,

We have been here before.

Can I draw your attention to LAC 38/3 Revised June 2005 (http://www.hse.gov.uk/lau/lacs/38-3.htm) which clearly states.....

WRITTEN HEALTH AND SAFETY POLICY STATEMENT
INTRODUCTION
1 This circular gives advice on the main elements of written safety policies and the suggested enforcement action for contravention of HSW Act Section 2(3)

BACKGROUND
2 Section 2(3) of the HSW Act states 'Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate, revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements, for the time being in force for carrying out that policy, and to bring that statement and any revision of it to the notice of all his employees'.

3 This requirement is limited by the Employers Health and Safety Policy Statements (Exceptions) Regulations 1975 (SI 1975 No. 1584) to exempt employers who carry on undertakings in which for the time being less than five employees work.

4 It should be noted that "undertaking" does not mean the same as "establishment". An employer could operate a number of small establishments, each employing less than five employees. If all the establishments form part of the same undertaking, and the total of employees is five or more, the employer must prepare a written health and safety policy for the whole undertaking.

Adrian and I have had this discussion before. I still stand by the point that if the enforcing authority are going to adopt this guide, as we can reasonably expect, it is going to be more costly to put up a defense to prove your innocence than it is to simply put the policy in place. We have all heard the story of "Send reinforcements we are going to advance" becoming "Send three and fourpence we are going to a dance" by the time it has gone through the management filter. Is it not just good practice to have a written, clear, preferably concise and targeted policy that gives a consistent message to our "geographically dispersed" employees? Equally there is no point having a Policy at all unless it sets goals and aspirations that the management can demonstrate a commitment to.

Posted By Adrian Watson
Mark,

Unfortunately I do not have a complete copy of the judgement to hand but only an extract. My understanding was that the case was referred back to the magistrates’ court for judgement as what was an "undertaking" was a matter of fact for the court of first decision to make. The question as to what "where" meant was not decided as it was not raised by the court.

Regards Adrian Watson

Posted By peter gotch 1
Hi Mark.

Adrian's comment that he thinks judgement sent back to magistrates for decision on fact indicates that case not authorative case law on the issue in your question - certainly not case that sticks in my memory bearing in mind that I was working for HSE at the time.

My advice to employers at that time and till I left HSE in 1991 was if you have 5 or more employees, at any time, whether in one or more locations, you need a policy.

At the end of the day, when it comes to the crunch, is this a big deal?

Links to all the requirements for risk assessments. When the accident happens to someone employed by a micro enterprise, there will be plenty of other charges available, even if failing to record the "significant factors" arising from "suitable and sufficient" assessment of the risks may not be taken forward on the basis of an interpretation of the case to which Adrian refers.

How do you demonstrate that you have done what is "reasonably practicable" if you do not have any paperwork? Bearing in mind that the onus of proof is on the defendant in both criminal [HSWA S40] and civil proceedings.

Regards, Peter

Posted By Tony Brunskill
This has been discussed before on the following thread.

http://www.iosh.co.uk/in...iew&forum=1&thread=18912

Posted By Ian G Hutchings
Mark

Yes, as a Director he is an employee and so is his wife, presuming that she is on pay roll.

There are joint responsibilities and you do need to ensure that they have the correct arrangements in place. You cannot obviously do this for them, but I believe that you can be held accountable as well as them in the eyes of the law.

Regardless of the law I would also consider your professional image and civil liability as well as criminal liability under the law.

If you employee five or more people, regardless of location, you have to have a written policy and risk assessments etc. Yes, their employees need to be competent and understand the hazards related to their jobs and this needs to be recorded.

Hope this helps

Ian

Posted By Safetynut
no problem interesting read after all