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) 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.[8]
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.[9]
(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.[10]
(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.[11]
(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.[12]
(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.[13]
(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.[14]
(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. [15]
(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. [16]
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.[17]
(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.[18]
(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.[19]
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.[20]
(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;
(b) the Fire Precautions
(Jersey) Law 1977;
(c) the Petroleum
(Jersey) Law 1984; 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.