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What is constructive knowledge?
Date of Issue: Thursday, 15 January, 2015
IIRSM vice president Siobhan Donnelly, a leading health and safety lawyer, discusses the obligation of possessing safety information.
That which exists, not in fact, but as a result of the operation of law. That which takes on a character as a consequence of the way it is treated by a rule or policy of law, as opposed to its actual character.
For example, constructive knowledge is notice of a fact that a person is presumed by law to have, regardless of whether he or she actually does, since such knowledge is obtainable by the exercise of reasonable care.
Employers are often unaware that when they have conducted a safety audit and are then in possession of information or knowledge about how a process is actually carried out there is a legal responsibility that comes with that knowledge.
If there is an adverse outcome the legal reality is that if the case comes to court it would be relevant to question if the employer had constructive knowledge of the procedures.
If the employer did not know, the questioning turns to reasons why he did not know, and in turn leads to questions about supervision and reference to the Health and Safety at Work Act.
Section 2(2)c covers 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 his employees.
Therefore there is an obligation to supervise and to ensure each process is known, understood and risk assessed.
It is never a defense to say that you were unaware that a particular process was happening. If employees are carrying out procedures that they have developed themselves, they should have been known and assessed.
You can never argue you did not know workers were in an unauthorised area. Constructive knowledge means you ought to have known and are assumed to have known.
The only potential defense in this case would be that the employer knew and had issued directives not to enter the area.
Effective employers should not fear constructive knowledge because they will have actual risk assessments and reassessments and know what is happening and remedy shortcomings as soon as they have gained knowledge. Siobhan Donnelly, Vice President, IIRSM