Legislation And Ethics In Travel And Tourism Sector

Legislation And Ethics In Travel And Tourism SectorThe Health and Safety at Work etc. Act 1974 (also referred to as HSWA, the HSW Act, the 1974 Act or HASAWA) is the primary piece of legislation covering occupational health and safety in Great Britain. The Health and Safety Executive, with local authorities (and other enforcing authorities) is responsible for enforcing the Act and a number of other Acts and Statutory Instruments relevant to the working environment.

It places a duty on all employers “to ensure, so far as is reasonably practicable, the health, safety, and welfare at work” of all their employees.

Among other provisions, the Act also requires:

  • safe operation and maintenance of the working environment, plant and systems
  • maintenance of safe entry and exit to the workplace
  • safe use, handling and storage of dangerous substances
  • adequate training of staff to ensure health and safety
  • adequate welfare provisions for staff at work.

Employers must also keep and revise a written record of health and safety policy and consult with employees or their representatives on such policies (this only applies to those employing five or more).

HAZARDS

Hazards are all around us, especially in the workplace where production / manufacturing takes place; and in other industries where services are delivered:

Physical – cause injury to workers when an object, piece of equipment, or material comes in contact with a worker

Chemical – are substances which, because of their characteristics and effects, may cause harm to human health and safety

Biological – are organisms or substances produced by organisms that may pose a threat to human health and safety.

Psychological – cause workers mental distress or distraction. Although a rather new hazard classification, it is critical that psychological hazards are thoroughly identified and controlled.  

Prevention Prevention

 EUROPEAN LEGISLATION 

The European Framework Directive on Safety and Health at Work (Directive 89/391 EEC) adopted in 1989 was a substantial milestone in improving safety and health at work. It guarantees minimum safety and health requirements throughout Europe while the Member States are allowed to maintain or establish more stringent measures.
of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work – “Framework Directive”.

In 1989 some provisions of the Framework Directive brought about considerable innovation including the following:

  • The term ‘working environment’ was set in accordance with International Labour Organization (ILO) Convention No. 155 and defines a modern approach taking into account technical safety as well as general prevention of ill-health.
  • The Directive aims to establish an equal level of safety and health for the benefit of all workers (the only exceptions are domestic workers and certain public and military services).
  • The Directive obliges employers to take appropriate preventive measures to make work safer and healthier.
  • The Directive introduces as a key element the principle of risk assessment and defines its main elements (e.g. hazard identification, worker participation, the introduction of adequate measures with the priority of eliminating risk at source, documentation, and periodical re-assessment of workplace hazards).
  • The new obligation to put in place prevention measures implicitly stresses the importance of new forms of safety and health management as part of general management processes.

The Framework Directive had to be transposed into national law by the end of 1992. The repercussions of the transposition on national legal systems varied across the Member States. In some Member States, the Framework Directive had considerable legal consequences due to inadequate national legislation while in others no major adjustments were necessary.

In 2004 the European Commission issued an on the practical implementation of the provisions of same of the directives, namely 89/391 EEC (framework directive), 89/654 EEC (workplaces), 89/655 EEC (work equipment), 89/656 EEC (personal protective equipment), 90/269 EEC (manual handling of loads) and 90/270 EEC (display screen equipment)]. This Communication stated that there was evidence of the positive influence of EU legislation on national standards for occupational safety and health made up of both national implementing legislation and practical application in enterprises and public sector institutions.

In general, the report concluded that EU legislation had contributed to instilling a culture of prevention throughout the European Union as well as to rationalizing and simplifying national legislative systems. At the same time, however, the report highlighted various flaws in the application of the legislation that was holding back the achievement of its full potential. It also noted cases where infringement proceedings had been opened.

Occupiers Liability Act 1984

The law of occupiers’ liability is a common law tort meaning it is actioned in a civil court and deals with issues between individual parties.

Under occupiers liability, the person who occupies the land can be held liable when injury or some kind of harm has occurred to another person on that land.

It is governed by the Occupiers Liability Act 1957 and the Occupiers Liability Act 1984.

Occupiers Liability Act 1957

What is meant by Occupier?

Under the Occupiers Liability Act 1957 the occupier of the property means that person who is in control of the land, premises, building, warehouse, office, etc. 

Control Test

When establishing whether someone is in control of the premises the following factors can be taken into account:

Whether that person is the owner of the property/premises

Whether that person had exclusive possession of the property/premises

Whether they had the immediate right to enter and to use the property/premise

Property rights in the property/premises do not have to exist. An individual, for example, the manager, can be held to be an occupier under the control test. Consequently, this means that under the 1957 Act more than one person can be held to be the occupier of certain premises.

Does the occupier have to be a person?

The term occupier under the 1957 Act has been held to cover local authorities, companies, individuals, and partnerships.

Premises

Section 1 of the Occupiers Liability Act 1957 defines premises to cover any fixed or movable structure. This can include any vessel, vehicle, or aircraft.  In the cases, following the enactment of the legislation, such things as chairs, ladders, scaffolding, and lifts have been construed to be premises. Obviously, such things as buildings, factories, houses, and land are included within the definition.

Visitor

Someone who enters the premises is someone who has been invited onto the premises by the occupier. This is also extended under the 1957 Act to include those individuals who enter the premises in the exercise of a right conferred by law. This covers such individuals as policemen and firemen as they are termed lawful visitors under the 1957 Act.

Common Duty of Care

Section 2 of the Occupiers Liability Act 1957 states that the common duty of care in relation to occupiers is the duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the reason which he or she is invited or permitted to be there.

The fact that it is a common law duty of care means that it is applied to all lawful visitors. Please note that the duty is to make the visitor safe and not the premises safe. This is a very important distinction. 

Does the Common Duty of Care depend on the person visiting the premises?

Children

Section 2 of the 1957 Act specifically states that an occupier must be prepared for the fact that children may be less careful than adults. This means that there should be a higher duty of care placed on the occupier when children enter the premises.

Workmen

Section 2 of the 1957 Act specifically states that when a person is in the exercise of his trade that person will not only appreciate the special risks associated with his trade but will also guard against them. This means that the occupier will be free to leave the tradesman to do just that and will not have a higher duty of care placed upon them.

Work done by Independent Contractors

Section 2 of the 1957 Act specifically states that where damage is caused to a visitor by a danger due to faulty construction, maintenance or repair by an independent contractor the occupier will not be subject to a higher duty of care if the occupier acted reasonably when he entrusted the work to the independent contractor. In this situation all the occupier can be reasonably expected to do is to ensure the work has been executed properly.

Warning

If damage has been caused to the visitor by something which the occupier had previously warned him about then the occupier will not be subject to a greater duty of care if it is found that the warning was reasonable enough to keep that person safe.

Defenses

The following are defenses that can be used in an action for occupiers liability:

  • Consent of the visitor. If a risk is willingly accepted by the visitor then the occupier will not be liable for any damage suffered. Signs such as “enter at your own risk” are good examples of this.
  • Contributory Negligence. The individual claiming occupiers liability for an injury sustained while on the premises may well have contributed himself to the injury.
  • Exclusion of Liability. The occupier can exclude their liability by an agreement. In the case of business, however, this is likely to fall foul of the Unfair Contract Terms Act 1977 in the case of business but not in the case of recreational premises. 

What happens if the Visitor is not a Lawful Visitor?

Trespassers

Occupiers Liability Act 1984

The 1984 Act deals with individuals other than visitors and is taken to mean trespassers.  A duty of care has to be established in this case and occurs when the following three factors are met:

That the occupier is aware of the danger.

That the occupier knows that the other person will be near the danger or that they have reasonable grounds to believe that it is the case

That the occupier ought to reasonably think about providing some protection to the other person.

Under the 1984 Act, no duty will exist when a person willingly accepts a risk when they trespass on a certain type of land.

THE DATA PROTECTION ACT 1998

The Data Protection Act 1998, in its current form, was implemented in March 2000 to give individuals a right of access to ‘personal data’. This personal data qualifies as any information held by a company that relates to an individual. Personal data is often collected when an individual completes the purchase of a good or service from a company. It can consist of contact, bank or any other necessary details needed to facilitate an exchange.

However, much of the data that is collected is sensitive and if it were to fall into the wrong hands could result in fraudulent activities against the individual. This is regarded to be a direct breach of civil liberties.

With so much personal data held by an increasing number of organizations, there needs to be some benchmark for companies to follow if they are to ensure that data is handled fairly. The Data Protection Act acts as a foundation for providing that benchmark.

Who needs to comply with the Data Protection Act?

Any company or professional that needs to store personal data from clients in order to perform business activities is classified as a ‘data controller’. As a data controller, they must notify the Information Commissioner’s Office (ICO) that they are responsible for the availability, integrity, and security of that data under the Act.

Most companies in the UK who process customer data fall under the requirements of the Data Protection Act. Some of the key regulatory bodies responsible for promoting faithfulness to the Act include the Financial Services Authority (FSA) and the Solicitors Regulation Authority (SRA).

What are the requirements of the Data Protection Act?

The Data Protection Act can be complex and difficult to interpret. It mainly consists of eight key principles that must be adhered to. We have tried to make those principles as easy to understand as possible.

Maddox Smith

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