Health and Safety at Work (Northern Ireland) Order 1978

The provisions of this Part relating to the making of health and safety regulations and the preparation and approval of codes of practice shall in particular have effect with a view to enabling the existing statutory provisions to be progressively replaced by a system of regulations and approved codes of practice operating in combination with the other provisions of this Part and designed to maintain or improve the standards of health, safety and welfare established by or under the existing statutory provisions.

For the purposes of this Part risks arising out of or in connection with the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking, the plant or substances used for the purposes of an undertaking and the condition of premises so used or any part of them.

References in this Part to the general purposes of this Part are references to the purposes mentioned in paragraph (1).

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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 his employees.

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

Regulations may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under paragraph (5) and shall have such other functions as may be prescribed.

It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures.

In such cases as may be prescribed it shall be the duty of every employer, if requested to do so by the safety representatives mentioned in paragraph (4), to establish, in accordance with regulations, a safety committee having the function of keeping under review the measures taken to ensure the health and safety at work of his employees and such other functions as may be prescribed.

It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

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 employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.

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 his 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.

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 him of a trade, business or other undertaking (whether for profit or not).

It shall be the duty of any person who undertakes the design or manufacture of any article for use at workF25 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.

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 workF25 or who erects or installs any article of fairground equipment to ensure, so far as is reasonably practicable, that nothing about the way in whichF25 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, (1A)( a).

It shall be the duty of any person who undertakes the manufacture of anyF25 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 risks to health or safety to which the substance may give riseF25 at all such times as are mentioned in paragraph (4)( a).

Nothing in the provisions of this Article shall be taken to require a person to repeat any testing, examination or research which has been carried out otherwise than by him or at his instance, in so far as it is reasonable for him to rely on the results thereof for the purposes of those provisions.

Any duty imposed on any person by any of the preceding provisions of this Article shall extend only to things done in the course of a trade, business or other undertaking carried on by him (whether for profit or not) and to matters within his control.

Where a person designs, manufactures, imports or supplies an articleF25 for use at work or an article of fairground equipment and does so far 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 healthF25 at all such times as are mentioned in sub‐paragraph ( a) of paragraph (1) or as the case may be, in sub‐paragraph ( a) of paragraph (1A), the undertaking shall have the effect of relieving the first-mentioned person from the duty imposedF25 by virtue of that sub‐paragraph to such extent as is reasonable having regard to the terms of the undertaking.

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 sub‐paragraph ( a) of paragraph (1), (1A) or (4) 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.

There shall be established a body to be called the Health and SafetyF37 Executive for Northern Ireland consisting of a chairman appointed by the Head of the Department and not less than six nor more than nine other members appointed by the Head of the Department in accordance with paragraph (2).

The Head of the Department may, after consultation with the Executive, appoint one of the members to be deputy chairman of the Executive.

TheF37 Executive shall have such functions as are conferred on it under the succeeding provisions of this Order.

The provisions of Schedule 2 shall have effect with respect to theF37 Executive.

The functions of the Executive, and of its officers and servants, shall be performed on behalf of the Crown.

For the purpose of any civil proceedings arising out of those functions, the Crown Proceedings Act 1947 shall apply to the Executive as if it were a Department of Her Majesty's Government in Northern Ireland within the meaning of that Act.

The Department may by order subject to negative resolution amend paragraph (1) so far as it regulates the number of members of the Executive.

In addition to the other functions conferred on the Executive under this Order, but subject to paragraph (4), it shall be the general duty of the Executive to do such things and make such arrangements as it considers appropriate for the general purposes of this Part.

TheF40 Executive, in accordance with Article 18, may prepare and issue codes of practice and may approve codes of practice prepared by other persons.

Nothing in paragraph (1)( b) shall authorise theF46 Executive to perform any function of a Minister, department or authority which consists of a power to make regulations or other instruments of a legislative character.

This Article applies to the following matters, that is to say any accident, occurrence, situation or other matter whatsoever whichF52. . . F53F52. . . the Executive thinks it necessary or expedient to investigate for any of the general purposes of this Part or with a view to the making of regulations for those purposes.

Any inquiry held by virtue of paragraph (2)( b) shall be held in accordance with regulations, and shall be held in public except where or to the extent that the regulations provide otherwise.

In the case of a special report made by virtue of paragraph (2)( a)F52. . . F53F52. . . the Executive may cause the report, or so much of it asF52. . . F53F52. . . the Executive thinks fit, to be made public at such time and in such manner asF52. . . F53F52. . . the Executive thinks fit.

Subject to Article 46, regulations (in this Order referred to as “health and safety regulations”) may provide for any of the general purposes of this Part.

Without prejudice to the generality of paragraph (1), health and safety regulations may for any of the general purposes of this Part make provision for any of the purposes mentioned in Schedule 3.

Without prejudice to Article 33, health and safety regulations may make provision for enabling offences under any of the relevant statutory provisions to be treated as having been committed at any specified place for the purpose of bringing any such offence within the field of responsibility of any enforcing authority or conferring jurisdiction on any court to entertain proceedings for any such offence.

In this Article “specified” means specified in health and safety regulations.

TheF59 Executive may at any time with the consent of the Department concerned withdraw its approval from any code of practice approved under this Article, but before seeking the consent of that Department shall consult the same government departments and other bodies as it would be required to consult under paragraph (2) if it were proposing to approve the code.

Where under paragraph (5) theF59 Executive withdraws its approval from a code of practice approved under this Article, theF59 Executive shall issue a notice in writing identifying the code in question and stating the date on which its approval of it is to cease to have effect.

References in this Part to an approved code of practice are references to that code as it has effect for the time being by virtue of any revision of the whole or any part of it approved under this Article.

The power of theF59 Executive under paragraph (1)( b) to approve a code of practice issued or proposed to be issued otherwise than by theF59 Executive shall include power to approve a part of such a code of practice; and accordingly in this Part “code of practice” may be read as including a part of such a code of practice.

A failure on the part of any person to observe any provision of an approved code of practice shall not of itself render him liable to any civil or criminal proceedings; but 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 any such provision as is mentioned in Article 18(1) being a provision for which there was an approved code of practice at the time of the alleged contravention, the following paragraph shall have effect with respect to that code in relation to those proceedings.

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; and 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.

It shall be the duty of the Department concernedF67 and the Executive to make adequate arrangements for the enforcement of the relevant statutory provisions except to the extent that some other authority is by any of those provisions or by regulations under paragraph (2) made responsible for their enforcement.

Any provision made by regulations under paragraph (2) shall have effect subject to any provision made by health and safety regulations in pursuance of Article 17(3)( c).

Every enforcing authority may appoint as inspectors (under whatever title it may determine) such persons having suitable qualifications as it thinks necessary for carrying into effect the relevant statutory provisions within its field of responsibility, and may terminate any appointment made under this Article.

So much of an inspector's written appointment as specifies the powers which he is entitled to exercise may be varied by the enforcing authority which appointed him.

An inspector shall, if so required when exercising or seeking to exercise any power conferred on him by any of the relevant statutory provisions, produce his written appointment or a duly authenticated copy thereof.

Subject to the provisions of Article 21 and this Article, an inspector may, for the purpose of carrying into effect any of the relevant statutory provisions within the field of responsibility of the enforcing authority which appointed him, exercise the powers set out in paragraph (2).

The Department concerned may by regulations make provision as to the procedure to be followed in connection with the taking of samples under paragraph (2)( g) (including provision as to the way in which samples that have been so taken are to be dealt with).

Where an inspector proposes to exercise the power conferred by paragraph (2)( h) in the case of an article or substance found in any premises he shall offer to any person who at the time is present in and has responsibilities in relation to those premises, the opportunity to be present at anything which is to be done by virtue of that power unless the inspector considers that its being done in that person's presence would be prejudicial to the safety of the State.

Before exercising the power conferred by paragraph (2)( h) in the case of any article or substance, an inspector shall consult such persons as appear to him appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under that power.

Where under the power conferred by paragraph (2)( i) an inspector takes possession of any article or substance found in any premises, he shall leave there, either with a responsible person or, if that is impracticable, fixed in a conspicuous position, a notice giving particulars of that article or substance sufficient to identify it and stating that he has taken possession of it under that power; and before taking possession of any such substance under that power an inspector shall, if it is practicable for him to do so, take a sample thereof and give to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it.

No answer given by a person in pursuance of a requirement imposed under paragraph (2)( j) shall be admissible in evidence against that person or theF72 spouse or civil partner of that person in any proceedings.

Nothing in this Article shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court.

This Article applies to any activities which are being or areF77 likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply.

In this Article and Article 26 “a notice” means an improvement notice or a prohibition notice.

Where any of the relevant statutory provisions applies to a building or any matter connected with a building and an inspector proposes to serve an improvement notice relating to a contravention of that provision in connection with that building or matter, the notice shall not direct any measures to be taken to remedy the contravention of that provision which are more onerous than those necessary to secure conformity with the requirements of any building regulations for the time being in force to which that building or matter would be required to conform if the relevant building were being newly erected unless the provision in question imposes specific requirements more onerous than the requirements of any such building regulations to which the building or matter would be required to conform as aforesaid.

In paragraph (3) “the relevant building”, in the case of a building, means that building, and, in the case of a matter connected with a building, means the building with which the matter is connected.

Before an inspector serves in connection with any premises used or about to be used as a place of work a notice requiring or likely to lead to the taking of measures affecting the means of escape in case of fire with which the premises are or ought to be provided, he shall consult F80the Northern Ireland Fire and Rescue Service Board .

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 industrial tribunal; and on such an appeal 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 modifications as the tribunal may in the circumstances think fit.

One or more assessors may be appointed for the purposes of any proceedings brought before an industrial tribunal under this Article.

Where, in the case of any article or substance found by him in any premises which he has power to enter, an inspector has reasonable cause to believe that, in the circumstances in which he finds it, the article or substance is a cause of imminent danger of serious personal injury, he may seize it and cause it to be rendered harmless (whether by destruction or otherwise).

A customs officer may, for the purpose of facilitating the exercise or performance by any enforcing authority or inspector of any of the powers or duties of the authority or inspector under any of the relevant statutory provisions, seize any imported article or imported substance and detain it for not more than two working days.

Anything seized and detained under this Article shall be dealt with during the period of its detention in such manner as the Commissioners of Customs and Excise may direct.

In paragraph (1) the reference to two working days is a reference to a period of forty‐eight hours calculated from the time when the goods in question are seized but disregarding so much of any period as falls on a Saturday or Sunday or on Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in Northern Ireland.

If they think it appropriate to do so for the purpose of facilitating the exercise or performance by any person to whom paragraph (2) applies of any of that person's powers or duties under any of the relevant statutory provisions,F94 the Commissioners for Her Majesty's Revenue and Customs and Excise may authorise the disclosure to that person of any information obtainedF94 or held for the purposes of the exerciseF94 by Her Majesty's Revenue and Customs of their functions in relation to imports.

This paragraph applies to an enforcing authority and to an inspector.

A disclosure of information made to any person under paragraph (1) shall be made in such manner as may be directed byF94 the Commissioners for Her Magesty's Revenue and Customs and may be made through such persons acting on behalf of that person as may be so directed.

Information may be disclosed to a person under paragraph (1) whether or not the disclosure of the information has been requested by or on behalf of that person.

Subject to paragraph (3), no relevant information shall be disclosed without the consent of the person by whom it was furnished.

In paragraph (6) “the relevant consent” means, in the case of information furnished in pursuance of a requirement imposed under Article 22, the consent of the person who furnished it, and, in any other case, the consent of a person having responsibilities in relation to the premises where the information was obtained.

Notwithstanding anything in paragraph (6), a person who has obtained such information as is referred to in that paragraph may furnish to a person who appears to him to be likely 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 him in the course of exercising any of the powers referred to in that paragraph.

Schedule 3A (which specifies the mode of trial and maximum penalty applicable to offences under this Article and the existing statutory provisions) has effect.

Schedule 3A is subject to any provision made by virtue of Article 17(6)(c) or (d).

Where an offence under any of the relevant statutory provisions is committed by reason of a failure to do something at or within a time fixed by or under any of those provisions, the offence shall be deemed to continue until that thing is done.

Paragraph (3) applies to any offence under any of the relevant statutory provisions which a person commits under any provision or requirement to which he is subject as the designer, manufacturer, importer or supplier of any thing; and in that paragraph “responsible enforcing authority” means an enforcing authority within whose field of responsibility the offence in question lies, whether under Article 33 or otherwise.

Where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person, that other person shall be guilty of an offence, and a person may be charged with and convicted of the offence under this paragraph whether or not proceedings are taken against the first-mentioned person.

Where there would be or have been the commission of an offence under Article 31 by the Crown but for the circumstance that that Article does not bind the Crown, and that fact is due to the act or default of a person other than the Crown, that person shall be guilty of the offence which, but for that circumstance, the Crown would be committing or would have committed, and may be charged with and convicted of that offence accordingly.

The provisions of this Article are subject to any provision made under Article 17(6).

Where an 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.

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, that fact shall be admissible as evidence.

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 his power to remedy, the court may, in addition to or instead of imposing any punishment, order him, 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.

The time fixed by an order under paragraph (1) 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.

Where a person is ordered under paragraph (1) 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).

Paragraph (4) applies where a person is convicted of an offence consisting of 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 the relevant statutory provisions.

Subject to paragraph (5), the court by or before whichF130 the person is convicted of the offence 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.

The court shall not order anything to be forfeited under paragraph (4) 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 him to show cause why the order should not be made.

The Department shall pay to theF133 Executive such sums as the Department, with the approval of the Department of Finance may determine are appropriate for the purpose of enabling theF133 Executive to perform its functions.

Regulations may provide for such fees as may be fixed by or determined under the regulations to be payable for or in connection with the performance by or on behalf of any authority to which this paragraph applies of any function conferred on that authority by or under any of the relevant statutory provisions.

Paragraph (2) applies to the following authorities, namely theF133 Executive, the Department concerned, every enforcing authority, and any other person on whom any function is conferred by or under any of the relevant statutory provisions.

Regulations under this Article may specify the person by whom any fee payable under the regulations is to be paid; but no such fee shall be made payable by a person in any of the following capacities, namely an employee, a person seeking employment, a person training for employment, and a person seeking training for employment.

In paragraph (4) the references to a person training for employment and a person seeking training for employment shall include respectively a person attending an industrial rehabilitation course provided under the Disabled Persons (Employment) Act (Northern Ireland) 1945 [1945 c.6] and a person seeking to attend such a course.

For the purposes of this Article the performance by an inspector of his functions shall be treated as the performance by the enforcing authority which appointed him of functions conferred on that authority by or under any of the relevant statutory provisions.

In this Article—

The Department concerned may cause such local or other inquiries to be held as that Department thinks expedient in connection with any matter relating to the enforcement functions of an enforcing authority under this Order.

If the Department concerned is satisfied, after having caused a local inquiry to be held into the matter, that an enforcing authority has failed to perform any of its enforcement functions, that Department may by order empower an officer of that Department to exercise, or procure the exercise of, that function.

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.

No provision made under Article 17(6)( b) shall afford a defence in any civil proceedings, whether brought under paragraph (2) or not; 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.

Paragraphs (1)( a) and (2) are without prejudice to any right of action which exists apart from the provisions of this Order, and paragraph (3) is without prejudice to any defence which may be available apart from the provisions of the regulations there mentioned.

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.

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).

Subject to the provisions of this Article, the provisions of this Part, except Articles 23 to 27 and 31 to 39, and of regulations made under this Part shall bind the Crown.

Although they do not bind the Crown, Articles 31 to 39 shall apply to persons in the public service of the Crown as they apply to other persons.

For the purposes of this Part and regulations made thereunder persons in the service of the Crown shall be treated as employees of the Crown whether or not they would be so treated apart from this paragraph.

Without prejudice to Article 17(5), the Secretary of State may, to the extent that it appears to him requisite or expedient to do so in the interests of the safety of the State or the safe custody of persons lawfully detained, by order exempt the Crown either generally or in particular respects from all or any of the provisions of this Part which would, by virtue of paragraph (1), bind the Crown.

An order under paragraph (4) shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 [1946 c.36] shall apply accordingly.

The amendments shall be such as to preserve the effect of the provisions mentioned except to such extent as in the opinion of the Department concerned is necessary to obtain amounts expressed in convenient and suitable terms.

Regulations may, in the case of a provision which falls within paragraph (1) and contains words which refer to units other than metric units, repeal those words if the Department concerned is of the opinion that those words could be omitted without altering the effect of that provision.

Where any power to make regulations under any of the relevant statutory provisions is exercisable by the Department concerned that power may be exercised either so as to give effect (with or without modifications) toF147 proposals submitted by theF147 Executive under Article 13F147 (1A)( c) or independently of any suchF147 proposals; but the Department concerned shall not exercise that power independently of suchF147 proposals unless that Department has consulted theF147 Executive and such other bodies as appear to that Department to be appropriate.

Where the Department concerned proposes to exercise any such power as is mentioned in paragraph (1) so as to give effect to any suchF147 proposals as are there mentioned with modifications, that Department shall, before making the regulations, consult theF147 Executive.

For the purposes of this Part, a person who, otherwise than under a contract of employment, holds the office of constable shall be treated as an employee of the relevant officer.

For the purposes of this Part, the relevant officer, as defined by paragraph (2)(a) or (c), shall be treated as a corporation sole.

The provisions mentioned in paragraph (2E) (which impose the same liability for unlawful conduct of constables on persons having their direction or control as would arise if the constables were employees of those persons) do not apply to any liability by virtue of this Part.

For the purposes of regulations under Article 4(4) the Police Association for Northern Ireland shall be treated as a recognised trade union recognised by the Chief ConstableF155. . . .

Regulations under Article 4(4) may provide, in relation to persons falling within paragraph (2)(b) or (c), that a body specified in the regulations is to be treated as a recognised trade union recognised by such person as may be specified.