Health and safety law in Ireland has been revamped by the Safety, Health and Welfare at Work Act 2005. The new legislation repeals and re-enacts many of the provisions of its 1989 predecessor, and of the 1993 regulations that supplemented it. However, the 2005 Act also extends the law in important ways. This article outlines the ways in which the 2005 Act has moved beyond the previous law.

"So that's what you mean!"
The concept of a "competent person" is significant in Irish health and safety legislation, often being prescribed as the standard to which many important roles must be performed; those roles include safety officers, medical practitioners and investigators. The 2005 Act expands the definition of a "competent person" for all purposes in Irish health and safety law, to include an additional dimension regarding formal qualifications. To be deemed competent, a person must not merely have sufficient training, experience and knowledge appropriate to the nature of the task to be undertaken (such as safety officer or accident investigator); he or she must also have a qualification recognised by the Further Education and Training Awards Council ("FETAC") for that particular task. Although not yet available, it is expected that in time FETAC-recognised courses will be launched to address key health and safety roles.

Many health and safety obligations are subject to the important qualification that a person must do all that is "reasonably practicable" (although no more than that) in particular circumstances. Of great practical significance, the 2005 Act defines this concept for the first time. Therefore, to meet this threshold, an employer must:

• identify the relevant hazards and assess the risks to safety and health;

• exercise "all due care" by putting in place the "necessary protection and preventative measures"; and

• be able to establish that any further protective or preventative measures would be "grossly disproportionate", having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work.

New duties
Additional general duties are imposed on employers. These include duties to:

• manage and conduct work activities in a safe manner;

• ensure, so far as is reasonably practicable, the safety of his or her employees at work and the prevention of risk to their health in the work environment, relating to the use of any article or substance or the exposure to noise or vibration, or to ionising or other radiations, or to a physical agent; and

• bring the contents of the safety statement to the attention of employees at least once annually.

The health and safety duties of employees are also expanded; now, it is expressly a breach of health and safety law for an employee to turn up to work under the influence of an intoxicant, where that intoxicated state endangers his or her health and safety, or the health and safety of others. The 2005 Act allows for the introduction of regulations that will permit an employer to carry out tests on employees who it is suspected may be under the influence of an intoxicant.

New statutory duties are also imposed on those who commission, procure, design or construct places of work, to ensure that they are compliant with health and safety standards and principles.

The 2005 Act provides that regulations may be made to require certain prescribed employers to ensure that all sub-contractors have up-to-date safety statements in place.

Scope clarified
The 2005 Act clarifies that temporary employees, fixed-term employees and students on work experience are to be treated as employees for the purposes of health and safety legislation.

Evidence
Evidentiary changes are made to allow for easier prosecution of directors, managers and officers of companies for breaches of health and safety law.

A director, manager or other similar officer may be convicted of a health and safety offence personally in circumstances in which an offence has been committed by the company, and the director, manager or officer has authorised or consented to the acts that constitute the offence, or those acts are attributable to his or her connivance or neglect.

An important evidential presumption is applied in the prosecution of directors, managers and other officers: in the case of a person whose duties include making decisions that, to a significant extent, could have affected the management of the company, it will be presumed (until disproved by the director, manager or officer) that the doing of the relevant acts by the company was authorised, consented to or was attributable to the connivance or neglect on the part of that director, manager or other officer.

Therefore it is important that the health and safety roles and functions of all directors and other officers be delineated clearly, and that a person who has health and safety responsibilities is especially vigilant in performing his or her functions.

Penalties
Penalties for health and safety offences are modified, and now include a maximum sanction on summary conviction of €3,000, and/or imprisonment for six months, and in the event of a conviction on indictment, €3 million and/or imprisonment for two years. The same level of penalties applies to a personal prosecution against a director or manager. Significantly, these penalties relate to each offence; typically in criminal proceedings relating to injuries at work or other breaches of health and safety law, the accused person is prosecuted for a number of offences arising out of the single incident.

The Act provides that regulations may be made to introduce on-the-spot fines for breaches of health and safety rules. When those regulations are made, Health and Safety Authority inspectors will be empowered to impose such fines, the maximum amount of which can be €1,000.