FEATURE INDIVIDUAL FAILINGS SCOPE OF
LEGAL DUTIES The Health and Safety at Work Act 1974 (‘HSWA’) places a number of general duties on employers and others, breach of which is a criminal offence. The most significant duties on organisations are those
contained in sections 2 and
3 of the HSWA, which require employers to ensure, so far as reasonably practicable, the health and safety of employees and non-employees affected by the conduct of the undertaking. Employers can delegate the performance of the duties to others, but not responsibility for non-performance. Even if an organisation has devised a safe system of work, a failure to operate that system, whether by an employee or contractor, is likely to place the employer in breach of its duty.
WHAT DOES THAT MEAN IN PRACTICE? In British Steel plc [1995] the prosecution alleged that British Steel’s supervisor did not properly plan and supervise an operation in which two employees of a subcontractor were injured, one fatally. The prosecution did not dispute that their supervisor was appropriately qualified or that British Steel was entitled to rely on him. British Steel called expert witnesses who said that they could not have done more as a company.
The judge directed the jury that, once proved that the supervisor had failed to conduct this part of the company’s duty, it was difficult to see how the company could argue that it had taken reasonably practicable steps. The jury convicted and the Court of Appeal approved the approach: Section 3 imposed absolute liability on an employer, subject to a defence of reasonable practicability. The employer could not avoid that liability on the basis that the company at senior management level had taken all reasonable care to discharge its duty; such an employer was liable under section 3 in relation to acts of employees which exposed non-employees to risk to health and safety, whatever the employee’s level in the hierarchy.
EXCEPTIONS? The Court of Appeal acknowledged that the approach
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BCL Solicitors LLP Senior Associate Tom McNeill discusses the extent to which organisations in health and safety cases are held responsible, and punished, for the failings of individuals.
in British Steel can lead to ‘absurd’ consequences and has allowed limited exceptions. In short, employers may have the chance to persuade a jury that, notwithstanding the scope of the legal duties, on particular facts it was not reasonably practicable for them to do more.
Only in exceptional circumstances however will such arguments have a chance of avoiding a conviction – such as when the accident was purely the fault of the injured employee and everything had been done by or on behalf of the company to prevent the accident from happening. Reasonable practicability may limit the extent to which the employer can supervise the activities of a specialist independent contractor.
HOW CULPABLE IS THE ORGANISATION? In British Steel, the sentencing judge viewed the breach as a technical one and fined British Steel a nominal £100 (it was 1995). The Court of Appeal disagreed. Not only were they of the view that punishing organisations for inadvertent failings by workers contributed greatly to improving safety in the workplace, they also expressed the view that such failings should be treated as highly culpable failings by the company. It is now commonly the case that if an employee (in breach of company policy) instructed or did not prevent another worker from doing something dangerous and that other worker was injured or killed, judges will conclude that it was the company which so instructed or which failed to prevent the dangerous activity and (absent persuasive reasons not to) judging the company’s culpability accordingly.
DEFENDING CASES INVOLVING
INDIVIDUAL FAILINGS The scope of the legal duties, and a starting assumption by investigating authorities that the root causes of accidents are ‘almost inevitably’ management failures, makes health and safety offences difficult to defend. In this context, blaming individuals is usually not helpful. Often supported by expert evidence, the focus should instead be on persuasively explaining the systems in place, why they were appropriate, and why it was not reasonably practicable to do more. Prosecutions can be avoided even in serious cases, particularly if more than one organisation is involved. Otherwise, persuasive explanations of the procedures in place could minimise reputational harm and significantly reduce any fine payable.
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