Health and Safety
at Work (Jersey) Law 1989[1]
A LAW to provide for securing the
health, safety and welfare of persons at work, for protecting others against
risks to health or safety in connection with the activities of persons at work
and in connection with the use of plant intended for the service or
entertainment of the public, for controlling the possession and use of
dangerous substances and for connected purposes
Commencement
[see endnotes]
PART 1
INTERPRETATION AND EXCLUSION
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“Appeal Tribunal” means the appeal tribunal
established by virtue of Article 17;
“article for use at work” means –
(a) any plant designed for use or operation
(whether exclusively or not) by persons at work;
(b) any article designed for use as a component
in any such plant;
“code of practice” (without prejudice to Article 10(6))
includes a standard, a specification and any other documentary form of
practical guidance;
“contract of employment” means a contract of
employment or apprenticeship (whether express or implied and, if express,
whether oral or in writing);
“contravene” includes fail to comply;
“court” means the Inferior Number of the
Royal Court or the Magistrate’s Court, as the case may be;
“domestic premises” means premises occupied
as a private dwelling (including any garden, yard, garage, outhouse or other
appurtenance of such premises which is not used in common by the occupants of
more than one such dwelling), and “non-domestic premises” shall be
construed accordingly;
“employee” means an individual who works
under a contract of employment, and related expressions shall be construed
accordingly;
“existing statutory provisions” means the
enactments continued in force by Article 29(2);
“health and safety Regulations” has the
meaning assigned to it by Article 9;
“improvement notice” means a notice under Article 13;
“inspector” has the meaning assigned to it
by Article 12;
“micro-organism” includes any microscopic
biological entity which is capable of replication;
“Minister” means the
Minister for Social Security;
“Order” means an Order made under Article 9(2)(g);
“personal injury” includes any disease and
any impairment of a person’s physical or mental condition;
“plant” includes any machinery, equipment or
appliance;
“premises” includes any place and, in
particular, includes –
(a) any vehicle, vessel, aircraft or hovercraft;
(b) any installation on land including the
foreshore and other land intermittently covered by water and any installation
(whether floating, or resting on the seabed or the subsoil thereof or resting
on other land covered with water or the subsoil thereof); and
(c) any tent or movable structure;
“prescribed” means prescribed by Regulations;
“prohibition notice” means a notice under Article 14;
“relevant statutory provisions”
means –
(a) the provisions of this Law and of health and
safety Regulations; and
(b) the existing statutory provisions;
“self-employed person” means an individual
who works for gain or reward otherwise than under a contract of employment,
whether or not the individual employs others;
“substance” means any natural or artificial
substance (including micro-organisms) whether in solid or liquid form or in the
form of a gas or vapour;
“substance for use at work” means any
substance intended for use (whether exclusively or not) by persons at work;
“supply”, where the reference is to
supplying articles or substances, means supplying them by way of sale, lease,
hire or hire-purchase, whether as principal or agent for another.[2]
(2) For
the purposes of this Law –
(a) “work”
means work as an employee or as a self-employed person;
(b) an employee is at work throughout the time
when he or she is in the course of his or her employment, but not otherwise;
(c) a self-employed person is at work throughout
such time as he or she devotes to work as a self-employed person; and
(d) a police officer in the States of Jersey
Police Force is to be taken to be an employee of the Chief Officer of that Force
and is to be taken to be at work throughout the time he or she is on duty, but
not otherwise,
and, subject to paragraph (3),
the expressions “work” and
“at work”, in whatever context,
shall be construed accordingly.[3]
(3) The
States may by Regulations –
(a) extend the meaning of “work” and “at work” for the purposes of this Law; and
(b) in that connection provide for any of the
relevant statutory provisions to have effect subject to such adaptations, as
may be specified in the Regulations.
2 Exclusion of application to domestic employment
Nothing in this Law shall apply in
relation to a person by reason only that the person employs another, or is himself
or herself employed, as a domestic servant in a private household.
PART 2
GENERAL
DUTIES
3 General duties of employers to their employees
(1) It
shall be the duty of every employer to ensure, so far as is reasonably
practicable, the health, safety and welfare at work of all the employer’s
employees.
(2) Without
prejudice to the generality of an employer’s duty under paragraph (1),
the matters to which that duty extends include in particular –
(aa) the identification and assessment of risks to
health and safety to which the employer’s employees are exposed at work;
(a) the provision and maintenance of plant and
systems of work that are, so far as is reasonably practicable, safe and without
risks to health;
(b) arrangements for ensuring, so far as is
reasonably practicable, safety and absence of risks to health in connection
with the use, handling, storage and transport of articles and substances;
(c) the provision of such information,
instruction, training and supervision as is necessary to ensure, so far as is
reasonably practicable, the health and safety at work of the employer’s
employees;
(d) so far as is reasonably practicable as
regards any place of work under the employer’s control, the maintenance
of it in a condition that is safe and without risks to health and the provision
and maintenance of access to and egress from it that are safe and without such
risks;
(e) the provision and maintenance of a working
environment for the employer’s employees that is, so far as is reasonably
practicable, safe, without risks to health, and adequate as regards facilities
and arrangements for their welfare at work.[4]
(3) It
shall be the duty of every employer employing 5 or more employees –
(a) to prepare and, as often as may be
appropriate, revise a written statement of –
(i) the
employer’s general policy with respect to the health and safety of the
employer’s employees,
(ii) the
organization of responsibilities with respect to that policy,
(iii) the
arrangements in force and measures taken by the employer to implement that
policy;
(b) without prejudice to the generality of
sub-paragraph (a)(iii), to prepare and, as often as may be appropriate,
revise a written statement of –
(i) the
significant risks identified by the employer under paragraph (2)(aa) and
the employer’s assessment of them,
(ii) any
arrangements in force and any measures taken by the employer to eliminate or
reduce the significant risks to health and safety identified; and
(c) to bring the statements and any revisions of
them to the notice of the employer’s employees.[5]
(4) The
statements required by paragraph (3) and any revisions of them shall be
prepared in a language, or if necessary in more than one language, in which
they will be understood by each of the employer’s employees.[6]
(5) The
Minister may, by Order, amend the number of employees mentioned in paragraph
(3).[7]
4 General duties of employees at work
It shall be the duty of every
employee while at work –
(a) to
take reasonable care for his or her health and safety and the health and safety
of other persons who may be affected by his or her acts or omissions at work;
and
(b) as
regards any duty or requirement imposed on his or her employer or any other person
by or under any of the relevant statutory provisions, to co-operate with the
employer or other person so far as is necessary to enable that duty or
requirement to be performed or complied with.
5 General duties of employers and self-employed to persons other than
their employees
(1) It
shall be the duty of every employer to conduct the employer’s undertaking
in such a way as to ensure, so far as is reasonably practicable, that persons
not in his or her employment who may be affected thereby are not thereby
exposed to risks to their health or safety.
(2) It
shall be the duty of every self-employed person to conduct his or her
undertaking in such a way as to ensure, so far as is reasonably practicable,
that he or she and other persons (not being his or her employees) who may be
affected thereby are not thereby exposed to risks to their health or safety.
(3) In
such cases as may be prescribed, it shall be the duty of every employer and
every self-employed person, in the prescribed circumstances and in the
prescribed manner, to give to persons (not being his or her employees) who may
be affected by the way in which he or she conducts his or her undertaking the
prescribed information about such aspects of the way in which he or she
conducts his or her undertaking as might affect the health or safety of the
persons.
6 General duties of persons concerned with premises to persons other
than their employees
(1) This
Article has effect for imposing on persons duties in relation to those
who –
(a) are not their employees; but
(b) use non-domestic premises made available to
them as a place of work or as a place where they may use plant or substances
provided for their use there,
and applies to premises so made
available and other non-domestic premises used in connection with them.
(2) It
shall be the duty of each person who has, to any extent, control of premises to
which this Article applies or of the means of access thereto or egress
therefrom or of any plant or substance in such premises to take such measures
as it is reasonable for a person in the person’s position to take to
ensure, so far as is reasonably practicable, that the premises, all means of
access thereto or egress therefrom available for use by persons using the
premises, and any plant or substance in the premises or, as the case may be,
provided for use there, is or are safe and without risks to health.
(3) Where
a person has, by virtue of any contract or tenancy, an obligation of any extent
in relation to the –
(a) maintenance or repair of any premises to
which this Article applies or any means of access thereto or egress therefrom;
or
(b) safety of, or the absence of risks to health
arising from, plant or substances in any such premises,
that person shall be treated, for
the purposes of paragraph (2) as being a person who has control of the
matters to which the person’s obligation extends.
(4) Any
reference in this Article to a person having control of any premises or matter
is a reference to a person having control of the premises or matter in connection
with the carrying on by the person of a trade, business or other undertaking
(whether for profit or not).
7 General duties of manufacturers and others as regards articles for
use at work, fairground equipment and substances
(1) It
shall be the duty of any person who designs, manufactures, imports or supplies
any article for use at work or any article of fairground equipment –
(a) to ensure, so far as is reasonably
practicable, that the article is so designed and constructed that it will be
safe and without risks to health at all times when it is being set, used,
cleaned or maintained by a person at work;
(b) to carry out or arrange for the carrying out
of such testing and examination as may be necessary for the performance of the
duty imposed on the person by sub-paragraph (a);
(c) to take such steps as are necessary to
secure that persons supplied by that person with the article are provided with
adequate information about the use for which the article is designed or has
been tested and about any conditions necessary to ensure that it will be safe
and without risks to health at all such times as are mentioned in sub-paragraph (a)
and when it is being dismantled or disposed of; and
(d) to take such steps as are necessary to
secure, so far as is reasonably practicable that persons so supplied are
provided with all such revisions of information provided to them by virtue of sub-paragraph (c)
as are necessary by reason of its becoming known that anything gives rise to a
serious risk to health or safety.
(2) It
shall be the duty of any person who designs, manufactures, imports or supplies
any article of fairground equipment –
(a) to ensure, so far as is reasonably
practicable, that the article is so designed and constructed that it will be
safe and without risks to health at all times when it is being used for or in connection
with the entertainment of members of the public;
(b) to carry out or arrange for the carrying out
of such testing and examination as may be necessary for the performance of the
duty imposed on the person by sub-paragraph (a);
(c) to take such steps as are necessary to
secure that persons supplied by that person with the article are provided with
adequate information about the use for which the article is designed or has
been tested and about any conditions necessary to ensure that it will be safe
and without risks to health at all times when it is being used for or in connection
with the entertainment of members of the public; and
(d) to take such steps as are necessary to
secure, so far as is reasonably practicable, that persons so supplied are
provided with all such revisions of information provided to them by virtue of sub-paragraph (c)
as are necessary by reason of its becoming known that anything gives rise to a
serious risk to health or safety.
(3) It
shall be the duty of any person who undertakes the design or manufacture of any
article for use at work or of any article of fairground equipment to carry out
or arrange for the carrying out of any necessary research with a view to the
discovery and, so far as is reasonably practicable, the elimination or
minimisation of any risks to health or safety to which the design or article
may give rise.
(4) It
shall be the duty of any person who erects or installs any article for use at
work in any premises where that article is to be used by persons at work or who
erects or installs any article of fairground equipment to ensure, so far as is
reasonably practicable, that nothing about the way in which the article is
erected or installed makes it unsafe or a risk to health at any such time as is
mentioned in paragraph (1)(a) or, as the case may be, in paragraph (1)(a)
or (2).
(5) It
shall be the duty of any person who manufactures, imports or supplies any
substance –
(a) to ensure, so far as is reasonably
practicable, that the substance will be safe and without risks to health at all
times when it is being used, handled, processed, stored or transported by a person
at work or in premises to which Article 6 applies;
(b) to carry out or arrange for the carrying out
of such testing and examination as may be necessary for the performance of the
duty imposed on the person by sub-paragraph (a);
(c) to take such steps as are necessary to
secure that persons supplied by that person with the substance are provided
with adequate information about any risks to health or safety to which the
inherent properties of the substance may give rise, about the results of any
relevant tests which have been carried out on or in connection with the
substance and about any conditions necessary to ensure that the substance will
be safe and without risks to health at all such times as are mentioned in sub-paragraph (a)
and when the substance is being disposed of; and
(d) to take such steps as are necessary to
secure, so far as is reasonably practicable, that persons so supplied are
provided with all such revisions of information provided to them by virtue of sub-paragraph (c)
as are necessary by reason of its becoming known that anything gives rise to a
serious risk to health or safety.
(6) It
shall be the duty of any person who undertakes the manufacture of any substance
to carry out or arrange for the carrying out of any necessary research with a
view to the discovery and, so far as is reasonably practicable, the elimination
or minimisation of any risk to health or safety to which the substance may give
rise at all such times as are mentioned in paragraph (5)(a).
(7) Nothing
in this Article shall be taken to require a person to repeat any testing,
examination or research which has been carried out otherwise than by the person
or at the person’s instance, in so far as it is reasonable for the person
to rely on the results thereof for the purposes of those provisions.
(8) Any
duty imposed on any person by this Article shall extend only to things done in
the course of a trade, business or other undertaking carried on by the person
(whether for profit or not) and to matters within the person’s control.
(9) Where
a person designs, manufactures, imports or supplies an article for use at work
or an article of fairground equipment and does so for or to another on the
basis of a written undertaking by that other to take specified steps sufficient
to ensure, so far as is reasonably practicable, that the article will be safe
and without risks to health at all such times as are mentioned in paragraph (1)(a)
or, as the case may be, in paragraph (1)(a) or (2) the undertaking shall
have the effect of relieving the first-mentioned person from the duty imposed
by virtue of that sub-paragraph to such extent as is reasonable having regard
to the terms of the undertaking.
(10) Nothing
in paragraph (8) or (9) shall relieve any person who imports any article
or substance from any duty in respect of anything which –
(a) in the case of an article designed outside Jersey
was done by and in the course of any trade, profession or other undertaking
carried on by, or was within the control of, the person who designed the article;
or
(b) in the case of an article or substance
manufactured outside Jersey, was done by and in the course of any trade,
profession or other undertaking carried on by, or was within the control of,
the person who manufactured the article or substance.
(11) Where
a person (the “ostensible supplier”) supplies any article or substance
to another (the “customer”) under a hire-purchase agreement,
conditional sale agreement or credit-sale agreement, and the ostensible
supplier –
(a) carries on the business of financing the
acquisition of goods by others by means of such agreements; and
(b) in the course of that business acquired the person’s
interest in the article or substance supplied to the customer as a means of
financing its acquisition by the customer from a third person (the “effective
supplier”),
the effective supplier and not
the ostensible supplier shall be treated for the purposes of this Article as
supplying the article or substance to the customer, and any duty imposed by the
preceding provisions of this Article on suppliers shall accordingly fall on the
effective supplier and not on the ostensible supplier.
(12) For
the purposes of this Article an absence of safety or a risk to health shall be
disregarded in so far as the case in or in relation to which it would arise is
shown to be one the occurrence of which could not reasonably be foreseen; and
in determining whether any duty imposed by virtue of paragraph (1)(a), (2)
or (5) has been performed regard shall be had to any relevant information or
advice which has been provided to any person by the person by whom the article
has been designed, manufactured, imported or supplied or, as the case may be,
by the person by whom the substance has been manufactured, imported or
supplied.
(13) In
this Article –
“article of fairground
equipment” means any fairground equipment or any article designed for use
as a component in any such equipment;
“credit-sale
agreement” means an agreement for the sale of goods under which the whole
or part of the purchase price is payable by instalments;
“fairground
equipment” means any fairground ride, any similar plant which is designed
to be in motion for entertainment purposes with members of the public on or
inside it or any plant which is designed to be used by members of the public
for entertainment purposes either as a slide or for bouncing upon, and in this
definition the reference to plant which is designed to be in motion with
members of the public on or inside it includes a reference to swings, dodgems
and other plant which is designed to be in motion wholly or partly under the
control of, or be put in motion by, a member of the public;
“hire purchase
agreement” means an agreement for the bailment of goods under which the
bailee may buy the goods or under which the property in the goods will or may
pass to the bailee, whether on the performance of any act by the parties to the
agreement or any of them or in any other circumstances.
8 Duty not to interfere with or misuse things provided pursuant to
relevant statutory provisions
No person shall intentionally or
recklessly interfere with or misuse anything provided in the interests of
health, safety or welfare in pursuance of any of the relevant statutory
provisions.
PART 3
HEALTH
AND SAFETY REGULATIONS AND APPROVED CODES OF PRACTICE
9 Health and safety Regulations
(1) The
States may make Regulations (in this Law referred to as “health and
safety Regulations”) for securing the health, safety and welfare of
persons at work, for protecting others against risks to health or safety in connection
with the activities of persons at work and in connection with the use of plant
intended for the service or entertainment of the public, for controlling the
possession and use of dangerous substances and generally for the purpose of
carrying this Law into effect.
(2) Without
prejudice to the generality of paragraph (1) health and safety Regulations
may –
(a) repeal or modify any of the existing
statutory provisions;
(b) exclude or modify in relation to any
specified class of case any of the provisions of Part 2 or any of the existing
statutory provisions;
(c) make a specified authority responsible, to
such extent as may be specified, for the enforcement of any of the relevant
statutory provisions;
(d) impose requirements by reference to the
approval of the Minister, an inspector or any other specified body or person;
(e) prohibit the carrying on of any specified
activity or the doing of any specified thing, except under the authority and in
accordance with the terms and conditions of a licence issued by the Minister;
and may provide for the grant, renewal, variation, transfer and revocation of
such licences (including the variation and revocation of conditions attached to
such licences);
(f) provide for references in the Regulations
to any specified document to operate as references to that document as revised
or re-issued from time to time;
(g) empower the Minister –
(i) (subject
to the Subordinate Legislation (Jersey)
Law 1960[8]) to make Orders with respect to any matter specified in the
relevant statutory provisions, and
(ii) to
grant exemptions from any requirement or prohibition imposed by or under any of
the relevant statutory provisions (either unconditionally or subject to
conditions, and with or without limit of time);
(h) enable exemptions from any requirement or
prohibition imposed by or under any of the relevant statutory provisions to be
granted (either unconditionally or subject to conditions, and with or without
limit of time) by any specified person or by any person authorized in that
behalf by a specified authority;
(i) specify the persons or classes of
persons who, in the event of a contravention of a requirement or prohibition
imposed by or under the Regulations, are to be guilty of an offence, whether in
addition to or to the exclusion of other persons or classes of persons;
(j) provide for any specified defence to
be available in proceedings for any offence under the relevant statutory
provisions either generally or in specified circumstances.[9]
10 Approval of codes of practice by the Minister
(1) For
the purpose of providing practical guidance with respect to the requirements of
any provision of –
(a) Part 2;
(b) health and safety Regulations; or
(c) the existing statutory provisions;
the Minister may, after
consultation with such persons as he or she considers will be affected, or
representatives of such persons –
(i) approve and issue such codes of
practice as in his or her opinion are suitable for that purpose;
(ii) approve such codes of practice issued
or proposed to be issued otherwise than by the Minister as in his or her
opinion are suitable for that purpose.
(2) Where
a code of practice is approved under paragraph (1), the Minister shall
publish in the Jersey Gazette a notice –
(a) identifying the code and stating the date on
which approval of it by the Minister is to take effect;
(b) specifying for which of the provisions
mentioned in paragraph (1) the code is approved; and
(c) stating where the code may be inspected.
(3) The
Minister may –
(a) from time to time revise the whole or any part
of any code of practice prepared by the Minister in pursuance of this Article;
(b) approve any revision or proposed revision of
the whole or any part of any code of practice for the time being approved under
this Article,
and the provisions of paragraphs (1)
and (2) shall, with the necessary modifications, apply in relation to the
approval of any revision under this paragraph as they apply to the approval of
a code of practice.
(4) The
Minister may at any time withdraw his or her approval from any code of practice
approved under this Article and where he or she does so the Minister shall
publish in the Jersey Gazette a notice identifying the code in question and
stating the date on which his or her approval of it is to cease to have effect.
(5) References
in this Law to an approved code of practice are references to that code as
revised from time to time under this Article.
(6) The
power of the Minister under paragraph (1)(ii) to approve a code of
practice issued or proposed to be issued otherwise than by the Minister shall
include power to approve a part of such a code of practice; and in this Article
and in Article 11 “code of practice” may be read as including
a part of such a code of practice.
11 Effect of failure to observe approved codes of practice and use of
codes in criminal proceedings
(1) A
failure on the part of any person to observe any provision of an approved code
of practice shall not of itself render the person liable to any civil or
criminal proceedings.
(2) Where
in any criminal proceedings a party is alleged to have committed an offence by
reason of a contravention of any requirement or prohibition imposed by or under
such provision as is mentioned in Article 10(1) being a provision for
which there was an approved code of practice at the time of the alleged
contravention, paragraphs (3) and (4) shall have effect with respect to
that code in relation to those proceedings.
(3) Any
provision of the code of practice which appears to the court to be relevant to
the requirement or prohibition alleged to have been contravened shall be
admissible in evidence in the proceedings.
(4) If
it is proved that there was at any material time a failure to observe any provision
of the code which appears to the court to be relevant to any matter which it is
necessary for the prosecution to prove in order to establish a contravention of
that requirement or prohibition, that matter shall be taken as proved unless
the court is satisfied that the requirement or prohibition was in respect of
that matter complied with otherwise than by way of observance of that provision
of the code.
(5) In
any criminal proceedings a code of practice which appears to the court to be
the subject of a notice published by the Minister under Article 10 shall
be taken to be the subject of that notice unless the contrary is proved.
PART 4
ENFORCEMENT
12 Powers of inspectors
(1) Any
person generally or specially authorized in writing by the Minister, in that
behalf (in this Law referred to as an “inspector”) may, for the
purpose of the execution of any of the relevant statutory provisions and
subject to the production by the person, if so required, of evidence of the person’s
authority, and subject to paragraph (3), exercise the powers set out in paragraph (2).
(2) The
powers referred to in paragraph (1) are –
(a) at any reasonable time to enter any premises
which the inspector has reason to believe it is necessary to enter for the
purpose mentioned in paragraph (1);
(b) on entering any premises by virtue of sub-paragraph (a)
to take with the inspector –
(i) any
person duly authorized by the Minister, and
(ii) any
equipment or materials required for any purpose for which the power of entry is
being exercised;
(c) to make such examination and investigation
as may in any circumstances be necessary for the purpose mentioned in paragraph (1);
(d) as regards any premises which the inspector
has power to enter, to direct that those premises or any part of them or
anything therein, shall be left undisturbed (whether generally or in particular
respects) for so long as is reasonably necessary for the purpose of any
examination or investigation under sub-paragraph (c);
(e) to take such measurements and photographs
and make such recordings as the inspector considers necessary for the purpose
of any examination or investigation under sub-paragraph (c);
(f) to take samples of any articles or
substances found in any premises which the inspector has power to enter, and of
the atmosphere in or in the vicinity of any such premises;
(g) to require any person whom the inspector has
reasonable cause to believe to be able to give any information relevant to any
examination or investigation under sub-paragraph (c) to answer (in the
absence of persons other than a person nominated by him or her to be present
and any persons whom the inspector may allow to be present) such questions as
the inspector thinks fit to ask and to sign a declaration of the truth of the person’s
answers;
(h) to require the production of, inspect, and
take copies of or of any entry in –
(i) any
books or documents which by virtue of any of the relevant statutory provisions
are required to be kept, and
(ii) any
other books or documents which it is necessary for the inspector to see for the
purposes of any examination or investigation under sub-paragraph (c);
(i) to require any person to afford the
inspector such facilities and assistance with respect to any matters or things
within that person’s control in relation to which that person has
responsibilities as are necessary to enable the inspector to exercise any of
the powers conferred on the inspector by this Article;
(j) any other power which is necessary for
the purpose mentioned in paragraph (1).
(3) An
inspector shall not exercise any powers under this Article for the purpose of
investigating a matter which is the subject of a police inquiry save in
conjunction with the police officer conducting the inquiry.[10]
(4) No
answer given by a person in pursuance of a requirement imposed under paragraph (2)(g)
shall be admissible in evidence against that person or the husband or wife or
civil partner of that person in any proceedings.[11]
(5) No
person shall be required under this Article to answer any question or to give
any evidence tending to incriminate the person.
(6) Nothing
in this Article shall be taken to compel the production by any person of a
document of which the person would on grounds of legal professional privilege
be entitled to withhold production on an order for discovery in any proceedings
in the Royal Court.
13 Improvement notices
(1) If
an inspector is of the opinion that a person –
(a) is contravening one or more of the relevant
statutory provisions; or
(b) has contravened one or more of those provisions
in circumstances that make it likely that the contravention will continue or be
repeated,
the inspector may serve an
improvement notice on the person.
(2) An
improvement notice shall –
(a) state that the inspector is of that opinion;
(b) specify the provision or provisions as to
which the inspector is of that opinion;
(c) give particulars of the reasons why the
inspector is of that opinion; and
(d) require that person to remedy the
contravention or, as the case may be, the matters occasioning it within such
period (ending not earlier than the period within which an appeal against the
notice can be brought under Article 16) as may be specified in the notice.
14 Prohibition notices
(1) If
an inspector is of the opinion that there is a risk of serious personal injury
arising out of activities to or in relation to which any of the relevant
statutory provisions apply, the inspector may serve a prohibition notice on the
person carrying on the activities or under whose control the activities are
being or are likely to be carried on.
(2) A
prohibition notice served pursuant to paragraph (1) shall –
(a) state that the inspector is of that opinion;
(b) specify the matters which in the
inspector’s opinion give or, as the case may be, will give rise to the
said risk;
(c) where in the inspector’s opinion any
of those matters involves or, as the case may be, will involve a contravention
of any of the relevant statutory provisions –
(i) state
that the inspector is of that opinion,
(ii) specify
the provision or provisions as to which the inspector is of that opinion, and
(iii) give
particulars of the reasons why the inspector is of that opinion; and
(d) direct that the activities to which the
notice relates shall not be carried on by or under the control of the person on
whom the notice is served unless the matters specified in the notice in
pursuance of sub-paragraph (b) and any associated contraventions of
provisions so specified in the notice in pursuance of sub-paragraph (c)
have been remedied.
(3) A
direction given in pursuance of paragraph (2)(d) shall take immediate
effect –
(a) at the end of the period specified in the
notice; or
(b) if the notice so declares, immediately.
15 Provisions supplementary to Articles 13 and 14
(1) In
this Article and in Articles 16 and 17 a “notice” means
an improvement notice or a prohibition notice.
(2) A
notice may (but need not) include directions as to the measures to be taken to
remedy any contravention or matter to which the notice relates.
(3) If
directions are included in a notice they may be framed –
(a) to any extent by reference to an approved
code of practice; and
(b) so as to afford the person on whom the
notice is served a choice between different ways of remedying the contravention
or matter.
(4) Where
an improvement notice, or a prohibition notice which is not to take immediate
effect, has been served –
(a) it may be withdrawn by an inspector at any
time before the end of the period specified therein in pursuance of Article 13(2)(d)
or 14(3) as the case may be; and
(b) the period so specified may be extended or
further extended by an inspector at any time when an appeal against the notice
is not pending.
16 Appeal against improvement or prohibition notice
(1) A
person on whom a notice is served may within such period from the date of its
service as may be prescribed appeal to an appeal tribunal.
(2) On
an appeal under this Article the Tribunal may either cancel or affirm the
notice and, if it affirms it, may do so either in its original form or with
such modification as the Tribunal may in the circumstances think fit.
(3) Where
an appeal under this Article is brought against a notice within the period
allowed under paragraph (1) then in the case of –
(a) an improvement notice, the bringing of the
appeal shall have the effect of suspending the operation of the notice until
the appeal is finally disposed of or, if the appeal is withdrawn, until the
withdrawal of the appeal;
(b) a prohibition notice, the bringing of the
appeal shall have the like effect if, but only if, on the application of the
appellant the Tribunal so directs (and then only from the giving of the
direction).
17 Appeal Tribunal
(1) The
States shall by Regulations provide for the establishment of an appeal tribunal
to determine appeals under Article 16 or 27.
(2) Without
prejudice to the generality of paragraph (1), Regulations under this Article
may include provision for –
(a) requiring persons to attend to give evidence
and produce documents and authorizing the administration of oaths to witnesses;
(b) prescribing the procedure to be followed on
any appeal;
(c) awarding compensation to an appellant where
a notice is cancelled or modified;
(d) awarding costs;
(e) appointing assessors to assist the Tribunal
in technical matters.
PART 5
ENQUIRIES,
OBTAINING AND DISCLOSURE OF INFORMATION
18 Power of Minister to direct investigations and inquiries
(1) The
Minister may at any time investigate any accident, occurrence, situation or
other matter which the Minister considers necessary or expedient to investigate
for the purposes of this Law.
(2) For
the purposes of the powers conferred on it by paragraph (1), the Minister
may –
(a) authorize any person to investigate and make
to the Minister a special report on any matter referred to in paragraph (1);
or
(b) direct an inquiry to be held into any such
matter.
(3) Any
inquiry held by virtue of paragraph (2)(b) shall be held in accordance
with Regulations made by the States and may be held in public or in private.
(4) Regulations
made under paragraph (3) may in particular include provision conferring on
the person holding any such inquiry, and any person assisting in the
inquiry –
(a) powers of entry and inspection;
(b) powers of summoning witnesses to give
evidence or produce documents; and
(c) power to take evidence on oath and administer
oaths or require the making of declarations.
(5) The
Minister may cause to be made public at such time and in such manner as the
Minister thinks fit any report (or part of such report as the Minister thinks
fit) made as the result of an investigation or inquiry under this Article.
19 Obtaining of information by the Minister
For the purpose of obtaining any
information which the Minister needs for his or her purposes under this Law the
Minister may serve on any person a notice requiring that person to furnish to
the Minister such information about such matters as may be specified in the
notice, and to do so in such form and manner and within such time as may be so
specified.
20 Restrictions on disclosure of information
(1) In
this paragraph and in paragraphs (2) and (3) –
(a) “relevant information” means
information obtained by the Minister under Article 19 or furnished to any person
in pursuance of a requirement imposed by any of the relevant statutory
provisions; and
(b) the “recipient” in relation to
any relevant information means the person by whom that information was so
obtained or to whom that information was so furnished, as the case may be.
(2) Subject
to paragraphs (3) and (8) no relevant information shall be disclosed
without the consent of the person by whom it was furnished.[12]
(3) Paragraph
(2) shall not apply to –
(a) disclosure of information to the Minister;
(b) without prejudice to sub-paragraph (a),
disclosure by the recipient of information to –
(i) any
person for the purpose of any function conferred on the recipient by or under
any of the relevant statutory provisions,
(ii) a
police officer authorized to receive it by the Chief Officer of the States of
Jersey Police Force or a Chef de Police, as the case may be;
(c) disclosure by the recipient of information
in a form calculated to prevent it from being identified as relating to a
particular person or case;
(d) disclosure of information for the purposes
of any legal proceedings or any investigation or inquiry held by virtue of Article 18(2)
or for the purposes of a report of any such proceedings or inquiry or of a
special report made by virtue of that paragraph.[13]
(4) A
person to whom information is disclosed in pursuance of paragraph (3)
shall not use the information for a purpose other than –
(a) in a case falling within sub-paragraph (a)
of that paragraph, a purpose of the Minister;
(b) in the case of information given to a police
officer, the purposes of the police in connection with the relevant statutory
provisions or any enactment whatsoever relating to public health, public safety
or the safety of Jersey.
(5) Subject
to paragraphs (7) and (8), a person shall not disclose any information
obtained by the person as a result of the exercise of any power conferred by Article 12
or 18(4)(a) (including, in particular, any information with respect to any
trade secret obtained by the person in any premises entered by the person by
virtue of any such power) except –
(a) for the purposes of the person’s
functions under the relevant statutory provisions; or
(b) for the purposes of any legal proceedings or
any investigation or inquiry held by virtue of Article 18(2) or for the
purposes of a report of any such proceedings or inquiry or of a special report
made by virtue of that paragraph; or
(c) with the consent –
(i) in
the case of information furnished in pursuance of a requirement imposed under Article 12,
the consent of the person who furnished it, and
(ii) in
any other case, the consent of a person having responsibilities in relation to
the premises where the information was obtained.[14]
(6) Notwithstanding
anything in paragraph (5) an inspector shall, in circumstances in which it
is necessary to do so for the purpose of assisting in keeping persons (or the
representatives of persons) employed at any premises adequately informed about
matters affecting their health, safety and welfare, give to such persons or
their representatives –
(a) factual information obtained by the
inspector as mentioned in that paragraph which relates to those premises or
anything which was or is therein or was or is being done therein; and
(b) information with respect to any action which
the inspector has taken or proposes to take in or in connection with those
premises in the performance of the inspector’s functions,
and where an inspector gives
information under this paragraph the inspector shall also give that information
to the employer of the persons employed.
(7) A
person who has obtained information referred to in paragraph (5) may
furnish to a person who appears to the person to be a party to any civil
proceedings arising out of any accident, occurrence, situation or other matter,
a written statement of relevant facts observed by the person in the course of
exercising any of the powers referred to in that paragraph.
(8) Information
referred to in paragraph (2) or (5) may be disclosed with the written consent
of the Minister.[15]
(9) The
Minister shall not give consent in accordance with paragraph (8) unless the
Minister is satisfied that it is expedient to do so –
(a) to secure the health, safety or welfare of
persons at work;
(b) to protect others against risks to health or
safety in connection with the activities of persons at work or in connection
with the use of plant intended for the service or entertainment of the public;
or
(c) to control the possession or use of
dangerous substances,
whether in Jersey or elsewhere. [16]
(10) The
Minister may give his or her consent subject to conditions limiting the persons
to whom the information may be disclosed and manner in which it may be used. [17]
PART 6
PROVISIONS
AS TO OFFENCES
21 Offences
(1) It
is an offence for a person –
(a) to fail to discharge a duty to which the person
is subject by virtue of Part 2;
(b) to contravene any health and safety Regulations
or any requirement or prohibition imposed under any such Regulations (including
any requirement or prohibition to which the person is subject by virtue of the
terms of or any condition or restriction attached to any licence, approval,
exemption or other authority issued, given or granted under the Regulations);
(c) to contravene any of the existing statutory
provisions;
(d) to contravene any requirement imposed by or
under Regulations made under Article 17 or 18 or intentionally to
obstruct any person in the exercise of the person’s powers under Article 18;
(e) to contravene any requirement imposed by an
inspector under Article 12;
(f) to prevent or attempt to prevent any
other person from appearing before an inspector or from answering any question
to which an inspector may by virtue of Article 12(2) require an answer;
(g) to contravene any requirement or prohibition
imposed by –
(i) an
improvement notice, or
(ii) a
prohibition notice,
(including any such notice as modified
on appeal);
(h) intentionally to obstruct an inspector in
the exercise or performance of the inspector’s powers or duties;
(i) to contravene any requirement imposed
by a notice under Article 19;
(j) to use or disclose any information in
contravention of Article 20;
(k) to make a statement which the person knows
to be false or recklessly to make a statement which is false where the
statement is made –
(i) in
purported compliance with a requirement to furnish any information imposed by
or under any of the relevant statutory provisions, or
(ii) for
the purpose of obtaining the issue of a document under any of the relevant
statutory provisions to the person or another person;
(l) intentionally to make a false entry in
any register, book, notice or other document required by or under any of the
relevant statutory provisions to be kept, served or given or, with intent to
deceive, to make use of any such entry which the person knows to be false;
(m) with intent to deceive, to forge or use a document
issued or authorized to be issued under any of the relevant statutory
provisions or required for any purpose thereunder or to make or have in the person’s
possession a document so closely resembling any such document as to be calculated
to deceive;
(n) falsely to pretend to be an inspector;
(o) to fail to comply with an order made by the
court under Article 24.[18]
(2) A
person guilty of an offence under paragraph (1)(d), (f), (h) or (n) shall
be liable on conviction to a fine not exceeding level 3 on the standard scale.[19]
(3) A
person guilty of an offence under –
(a) paragraph (1)(g)(ii);
(b) paragraph (l)(j); or
(c) paragraph (l)(b) which is an offence
consisting of –
(i) contravening
any of the relevant statutory provisions by doing otherwise than under the
authority of a licence issued by the Minister something for the doing of which
such a licence is necessary under the relevant statutory provisions,
(ii) contravening
a term of or a condition or restriction attached to any such licence as is
mentioned in clause (i),
(iii) acquiring
or attempting to acquire, possessing or using an explosive article or substance
(within the meaning of any of the relevant statutory provisions) in
contravention of any of these provisions,
shall be liable on conviction to
imprisonment for a term not exceeding 2 years, or a fine or both.
(4) A
person guilty of an offence under –
(a) paragraph (l)(a), (b) (except in
relation to the matters mentioned in paragraph (3)(c)), (c), (e), (g)(i),
(i), (k), (l), (m) or (o); or
(b) any of the existing statutory provisions for
which no other penalty is specified in those provisions,
shall be liable on conviction to
a fine.
(5) Where
a person is convicted of an offence under paragraph (1)(g) or (o) then, if
the contravention in respect of which the person was convicted is continued
after the conviction the person shall (subject to Article 24(3)) be guilty
of a further offence and liable in respect thereof to a fine.[20]
22 Offences due to fault of other person
(1) A
person charged with an offence under any of the relevant statutory provisions
who proves to the satisfaction of the court that the person had used all due
diligence to enforce the execution of the relevant statutory provisions and
that the offence was due to an act or default of some other person who
committed it without the person’s consent, connivance or wilful default,
shall be acquitted of the offence.
(2) Where
paragraph (1) applies the person to whose act or default the offence was
attributable shall be guilty of the offence and that person may be charged with
and convicted of the offence by virtue of this paragraph.
23 Offences by bodies corporate
(1) Where
an offence under any of the relevant statutory provisions committed by a body
corporate is proved to have been committed with the consent or connivance of,
or to have been attributable to any neglect on the part of, any director, manager,
secretary or other similar officer of the body corporate or a person who was
purporting to act in any such capacity, the person as well as the body
corporate shall be guilty of that offence and shall be liable to be proceeded
against and punished accordingly.
(2) Where
the affairs of a body corporate are managed by its members, paragraph (1)
shall apply in relation to the acts and defaults of a member in connection with
its functions of management as if the member were a director of the body
corporate.
24 Power of court to order cause of offence to be remedied or, in
certain cases, forfeiture
(1) Where
a person is convicted of an offence under any of the relevant statutory
provisions in respect of any matters which appear to the court to be matters
which it is in the person’s power to remedy, the court may, in addition
to or instead of imposing any punishment –
(a) order the person, within such time as may be
fixed by the order, to take such steps as may be specified in the order for
remedying the said matters; or
(b) empower the Minister, at the expense of the person
convicted, to take any action required to be taken under the relevant statutory
provisions; and
(c) direct that, until such action has been
taken which fully complies with the relevant statutory provisions, the
premises, machinery, plant, process, substance for use at work or description
of manual labour to which the relevant statutory provisions relate, or such part
thereof as may be specified by the court, shall not be used or shall only be
used in such manner as the court may specify.
(2) The
time fixed by an order under paragraph (1)(a) may be extended or further
extended by order of the court on an application made before the end of that
time as originally fixed or as extended under this paragraph, as the case may
be.
(3) Where
a person is ordered under paragraph (1)(a) to remedy any matters, that person
shall not be liable under any of the relevant statutory provisions in respect
of those matters in so far as they continue during the time fixed by the order
or any further time allowed under paragraph (2).
(4) Where
the Minister is empowered by the court to take action under paragraph (1)(b),
any person duly authorized in that behalf by the Minister, may, subject to the
production by the person, if so required, of evidence of the person’s
authority, at all reasonable times enter the premises whereon such action is to
be taken, and take such action there as the Minister is empowered by the court
to take.
(5) The
expenses incurred by the Minister pursuant to paragraph (1)(b) shall be
recoverable as a civil debt due by the person convicted.
(6) Subject
to paragraph (7), where a person is convicted of an offence mentioned in Article 21(3)(c)(iii)
in respect of any explosive article or substance the court may order the article
or substance in question to be forfeited and either destroyed or dealt with in
such other manner as the court may order.
(7) The
court shall not order anything to be forfeited under paragraph (6) where a
person claiming to be the owner of or otherwise interested in it applies to be
heard by the court, unless an opportunity has been given to the person to show
cause why the order should not be made.
25 Evidence
(1) Where
any entry is required by any of the relevant statutory provisions to be made in
any register or other record, the entry, if made, shall, as against the person
by or on whose behalf it was made, be admissible as evidence.
(2) Where
an entry which is so required to be so made with respect to the observance of
any of the relevant statutory provisions has not been made, the fact shall be
admissible as evidence that that provision has not been observed.
PART 7
MISCELLANEOUS
26 Civil liability
(1) Nothing
in this Law shall be construed –
(a) as conferring a right of action in any civil
proceedings in respect of any failure to comply with any duty imposed by Part
2; or
(b) as affecting the extent (if any) to which
breach of a duty imposed by any of the existing statutory provisions is
actionable; or
(c) as affecting the operation of section 12 of
the Nuclear Installations Act 1965
of the United Kingdom as extended to
Jersey by the Nuclear Installations
(Jersey) Order 1980.[21]
(2) Breach
of a duty imposed by health and safety Regulations shall, so far as it causes
damage, be actionable except in so far as the Regulations provide otherwise.
(3) No
provision made by virtue of Article 9(2)(i) shall afford a defence in any
civil proceedings whether brought by virtue of paragraph (2) or otherwise,
but as regards any duty imposed as mentioned in paragraph (2) health and
safety Regulations may provide for any defence specified in the Regulations to
be available in any action for breach of that duty.
(4) Paragraphs
(1)(a) and (2) are without prejudice to any right of action which exists apart
from the provisions of this Law, and paragraph (3) is without prejudice to
any defence which may be available apart from the provisions of the Regulations
referred to in that paragraph.
(5) Any
term of an agreement which purports to exclude or restrict the operation of paragraph (2),
or any liability arising by virtue of that paragraph shall be void, except in
so far as health and safety Regulations provide otherwise.
(6) In
this Article “damage” includes the death of, or injury to, any person
(including any disease and any impairment of a person’s physical or
mental condition).
27 Appeals in connection with licensing provisions in the relevant
statutory provisions
(1) Any
person who is aggrieved by a decision of the Minister in exercise of a power to
issue licences under any of the relevant statutory provisions –
(a) refusing to issue the person a licence, to
renew a licence held by the person or to transfer to the person a licence held
by another;
(b) issuing the person a licence on or subject
to any term condition or restriction whereby the person is aggrieved;
(c) varying or refusing to vary any term,
condition or restriction on or subject to which a licence is held by the person;
or
(d) revoking a licence by the person,
may appeal to the Appeal
Tribunal.
(2) Before
the determination of an appeal the appellant and the Minister shall be asked
whether he or she wishes to appear and be heard on the appeal and –
(a) the appeal may be determined without a
hearing of the parties if both of them express a wish not to appear and be
heard;
(b) the Appeal Tribunal shall, if either of the
parties express a wish to appear and be heard, afford to both of them an
opportunity of so doing.
(3) The
Appeal Tribunal may give such directions as it considers appropriate to give
effect to its determination.
28 Notices, etc.
Any notice or other document
required or authorized to be sent or served under or for the purposes of this Law
may be sent or served either by –
(a) delivering
it to the person on whom it is to be sent or served;
(b) leaving
it at the usual or last-known place of abode of that person or, in the case of
a company, at its registered office or its principal place of business;
(c) sending
it by post addressed to that person at his or her usual or last-known place of
abode or, in the case of a company, at its registered office or its principal
place of business; or
(d) delivering
it to some person on the premises to which it relates or, if there is no person
on the premises then by fixing it on some conspicuous part of the premises.
29 Savings
(1) The
enactments set out in the Schedule and in force immediately prior to the coming
into force of this Law shall, so far as they are not inconsistent with the
provisions of this Law continue in force as if made under this Law.
(2) Nothing
in this Law shall affect or derogate from –
(a) the Explosives
(Jersey) Law 1970;[22]
(b) the Fire
Precautions (Jersey) Law 1977;[23]
(c) the Petroleum
(Jersey) Law 1984;[24] or
(d) any other enactment providing for the
control of the possession and use of dangerous substances.
30 Citation
This Law may be cited as the Health
and Safety at Work (Jersey) Law 1989.