Health and safety at work

This assignment will, within the area of business and employment law, identify the key features relating to the Health and Safety at Work Act 1974 and will then evaluate the Acts' significance in protecting the rights and interests of the workforce.
The Health and Safety at Work Act 1974 (HSWA) brought in a new approach to dealing with the risks to people at work. Prior to HSWA there were approximately 30 Acts and over 500 regulations dealing with health and safety in the work place. The situation was confusing and unfair in that it afforded some employees greater protection than others. The primary legislation covers all people at work, except domestic workers in private employment. The main objectives of the Act are to secure the health, safety and welfare of all persons at work; to protect others against the risks arising from workplace activities; to control the obtaining, keeping and use of explosive or highly flammable substances and to control emissions into the atmosphere of noxious or offensive substances. The primary legislation includes Offices, Shops and Railway Premises Act 1963, Environment and Safety Information Act 1988. There are also secondary regulations within the HSWA including Control of Substances Hazardous to Health Regulation (1994) COSHHR and Health and Safety (Display Screen Equipment) Regulation 1992.
Every employer has a duty; so far as is reasonably practicable, to ensure the health, safety and welfare at work of all their employees. This duty includes the provision and maintenance of machines and systems of work that are safe and without risk to health; ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; provision of information, instruction, training and supervision as is necessary to ensure the health and safety at work of employees; and the maintenance of the place of work in a condition that is safe and the provision of a working environment for all employees that is safe, without risks to health and adequate with regards to facilities and arrangements for their welfare at work.
Employees also have a duty while at work to ensure that they take reasonable care for the health and safety of themselves and of other employees who may be affected by their acts or omissions at work and to cooperate so far as is necessary to enable the duty or requirement imposed on them to be performed or complied with.
Under the HSWA directors, managers, company secretaries and similar officers of the corporate body have both general and specific duties. Breaches of these duties can result in individuals being prosecuted. The enforcing authorities under the HSWA are; the Health and Safety Executive (HSE) which is divided into specific inspectorates including agricultural, factories and nuclear installations; Local Authorities, through their environmental health departments; and the fire authority. Enforcement is undertaken by inspectors appointed under the Act and authorised by a written warrant from the enforcing authority. There is now considerable evidence that about 70 per cent of deaths and serious injuries at work-to employees or members of the public--result from managerial and systemic faults in operations (HSE:2004)

Employers have a responsibility to make workplaces as safe as possible. Safe work practice can only take place when the law is adhered to. Health and Safety regulations require that employers appoint competent persons to help them carry out risk assessments. HSE v Bournemouth Borough Council (2005), an agency worker was injured after being crushed between moving land train carriage and seafront railings whilst helping to remove the train from the garage and set up and start of day. They had not received any health and safety information or instruction prior to or during this work. Bournemouth BC were found to be in breach of the Provision and Use of Work Equipment Regs 1998 (No 9) para 2, Provision and Use of Work Equip Regs 1998 (No 8) para 1 and Provision and Use of Work Equip Regs 1998 (No 9) para 1. These regulations state that;
Every employer shall ensure that any of his employees who supervises or manages the use of work equipment has received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken.
Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment.
Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. (HSWA 1974)
The Magistrates court found that if Bournemouth BC had adhered to the regulations then this accident and subsequent injury could have been avoided, therefore Bournemouth BC were fined £10,500.00.
Another similar case is that of HSE v Timbmet Rochdale Ltd (2006), an employee suffered fatal injuries after falling 10 metres through a roof light / asbestos cement sheet whilst working to clear a blockage in guttering. The Magistrates Court found that the company had failed to make a suitable and sufficient assessment of the risks to the health and safety of their employee whilst they were at work. Timbmet were found to be in breach of the Health and Safety At Work Act 1974, Section 2, Sub Section 1 and Management of Health & Safety at Work Regulations 1999 (No 3) para 1. These breaches were in relation to interpretation and application of the Health and Safety at Work Regulations. The Magistrates Court fined the company £25,000.00.

http://www.hse.gov.uk/press/2012/rnn-se-3112.htm

INTRODUCTION
A number of legal principles relating to the Health and Safety at Work Act (HSWA) 1974 have been considered in recent cases, including the extent of general duties imposed by ss 2 and 3 of the Act, the meaning of risks and how to deal with them and the extent of individual liability under s 37 of the Act.
Breach of general duties by the employer or other duty-holder is an offence under s 33 of the Act. Unlike in other criminal offences, the burden of proof lies with the defendant on the balance of probabilities.1Although in Davies v Health and Safety Executive2 the appellants argued that in reversing the burden of proof the section contravened Article 6 of the European Convention of Human Rights, the Court of Appeal dismissed this argument and reaffirmed that it was for the defendant to establish that he had not breached his general duty under the Act. It is important, therefore, to consider the extent of general duties, and in particular, what exactly should be established by the prosecution and by the defendant. The paper will discuss and analyse these and other issues relating to recent developments in health and safety law.
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2. THE EXTENT OF GENERAL DUTIES
The HSWA 1974 imposes general duties on employers and others and in particular on employers in relation to their employees (s 2(1)),3 on employers and the self-employed in relation to persons other than their employees (s 3(1)),4 and on persons concerned with premises in relation to persons other than their employees (s 4).5
It has been established that the duty on an employer under s 2(1) is the same kind of duty as that imposed on an employer under s 3(1) in relation to persons not in his employment6 because the basic duty is upon the defendant company to make sure that their business (undertaking) is operated (conducted) in such a way that employees and other people are not exposed to risk.7 In R v Gateway Foodmarkets Ltd,8 the Court referred to authorities such as R v Associated Octel9 and considered the purpose and object of the legislation, which made it clear that s 2(1) should be interpreted so as to impose liability on the employer whenever the specified consequences occur, namely failure to ensure the health and safety or welfare at work of an employee, if ‘so far as is reasonably practicable’ they have not been guarded against.
The general duty is owed by the employer as a company as a whole and it is connected to a business10 or an undertaking11 of the employer. The attempts to proclaim that only people who represent the company (a ‘directing mind’ of the company) have the general duty under the 1974 Act were not supported. The duty is personal and non-delegable and it should not be confused with an employer’s vicarious liability for the tortious acts of employees. In other words, it cannot be passed to a manager who takes the blame, but at the same time, it is not limited to a small number of top managers.12 Similarly, in R v Associated Octel, the House of Lords held that the duty under s 3 is imposed on the employer himself, ‘by reference to a certain kind of activity, namely, the conduct by the employer of his undertaking’ and the question, therefore, was simply ‘whether the activity in question can be described as part of the employer’s undertaking’.13
Does this mean though that ‘the employer is liable in circumstances where the only negligence or failure to take reasonable precautions has taken place at some more junior level’? This question was posed but left open inGateway Foodmarkets Ltd, where the Court of Appeal held that ‘the breach of duty and liability under the section do not depend upon any failure by the company itself, meaning those persons who embody the company, to take all reasonable precautions. Rather, the company is liable in the event that there is a failure to ensure the safety etc of any employee, unless all reasonable precautions have been taken—as we would add, by the company or on its behalf’.14 Thus, ‘there is no clear legal basis for distinguishing between “management” and (other) employees’15 when we refer to the general duties and liabilities under the HSWA 1974.
Overall, this issue has proven to be quite problematic and courts have not always been coherent in addressing it.
It has been established by the case law that s 2, in common with ss 3 and 4, creates an absolute (strict) duty subject only to the qualification by reference to what is reasonably practicable. In British Steel, for example, reference is made to ‘absolute prohibition’ and in Gateway, reference is made to ‘strict liability’ subject only to the stated qualification.
The European Commission’s claims that the qualifying phrase ‘so far as is reasonably practicable’ limited the scope of the employers’ obligation and that the UK failed to transpose the Framework Directive 89/391 concerning the prevention of occupational risks and the protection of the safety and health of workers were recently rejected by the European Court of Justice.16 As a result, we can comfortably state that both the statutory test, and the relevant case law in so far as it develops and modifies it, are good law and that Asquith LJ’s definition of the term the phrase ‘so far as is reasonably practicable’ in Edwards v National Coal Board17 still applies to the general duties and liabilities under the 1974 Act.18
For some time, it has been assumed that the phrase ‘so far as is reasonably practicable’ constituted a defence. In R v Nelson Group Services (Maintenance) Ltd,19 gas fitters employed by the company carried out their work negligently, by failing to carry out a proper test for gas leaks in the system following a gas cooker installation, and removing a defective and dangerous gas fire in a private house without capping the gas pipe. The question arose whether the mere fact that the fitter had left the gas fittings in a dangerous condition rendered the appellants in breach of their duty under s 3(1) and guilty of an offence under s 33(1)(a) or whether they had a defence to the charge on the ground inter alia that they were entitled to show that they had, so far as reasonably practicable, conducted their undertaking in such a way as to ensure that persons not in their employment were not exposed to risk to their health by the fitter’s negligent omission.
The Court of Appeal held that ‘the question what was reasonably practicable is a question of fact for the jury depending on the circumstances of each case. The fact that the employee who was carrying out the work, in this case the fitter installing the appliance, has done the work carelessly or omitted to take a precaution he should have taken, does not of itself preclude the employer from establishing that everything that was reasonably practicable in the conduct of the employer’s undertaking to ensure that third persons affected by the employer’s undertaking were not exposed to risks to their health and safety had been done’.20 The Court continued: ‘… it is a sufficient obligation to place on the employer in order to protect the public to require the employer to show that everything reasonably practicable has been done to see that a person doing the work has the appropriate skill and instruction, has had laid down for him safety systems of doing the work, has been subject to adequate supervision, and has been provided with safe plant and equipment for the proper performance of the work’.
Accordingly, the employer would not be held liable in the circumstances where negligence or a failure to take reasonable precautions was committed by an employee who had sufficient skills, instructions, training, supervisions, etc.
Parliament was not happy with such an interpretation. Regulation 21 of the Management of Health and Safety at Work Regulations 1999 was presumably designed to reverse the effect of this decision by removing the ‘defence’ based on the act or the default of an employee. It provides:Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of—(a) an employee of his …
By doing this, Parliament removed the defence of ‘so far as is reasonably practicable’ in order to ensure that the employer would be liable for any act of any employee in any circumstances.
However, in the recent case of R v HTM Ltd,21 the Court of Appeal held that ‘the phrase “so far as is reasonably practicable” is not a defence’22 as it had often been referred to in previous authorities. Rather, ‘the phrase does qualify the word “ensure” in section 2 of the 1974 Act’23 and relates to the actual duty.
The Court relied on its previous decision in R v Davies24 where Tuckey LJ stated: ‘the duty placed on the Defendant is a “duty … to ensure as far as is reasonably practicable”. It is a breach of this qualified duty which gives rise to the offence’.25 In relation to regulation 21, which attempted to transpose Art 5.3 of the Framework Directive into domestic law, the Court in HTM stated that the regulation has no application to the phrase ‘so far as is reasonably practicable’ since the latter was not a defence; the regulation could not amend primary legislation. The Court held: ‘A number of interesting arguments have been raised in relation to the interaction of primary and secondary legislation in such circumstances. But one uncontroversial principle clearly applies, namely the principle that secondary legislation can only have the effect of amending primary legislation, assuming all other tests are met, if the wording is clear and unambiguous and the intention to achieve that objective manifestly established’.26
A similar conclusion was reached in the recent case of R v Chargot Ltd27where the Court of Appeal held that ‘sections 2 and 3 of the 1974 Act imposed a duty to ensure a state of affairs, so far as was reasonably practicable. Section 33 made a breach of the duty an offence, but s 40 imposed the obligation on the defence to establish that they had done everything reasonably necessary to ensure that state of affairs. The policy behind the Act was to impose a positive burden on employers rather than simply disciplining them for breaches of specific obligations’.28
In order to appreciate the extent of ‘a positive burden on employers’ under the HSWA 1974, it is therefore important to understand what the phrase ‘so far as is reasonably practicable’ means in practice. Referring back to the definition of the phrase provided by Asquith LJ in Edwards v National Coal Board, we see that the thrust of it is based on the notions of risk and risk assessment.
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3. RISKS AND HOW TO DEAL WITH THEM
In Chargot, the Court of Appeal concluded that the identification of a risk by the prosecution was sufficient to impose the onus on the employer. In this particular case, the prosecution had clearly established the relevant risk. That it was a real risk was established by the fact that there had been an accident. That was sufficient to justify the requirement that the defendants should have the burden of proving that they had done all that was reasonably practicable to protect against that risk.29
Should risks be foreseeable by the employer or, in other words, can the employer argue that the risks were not foreseeable as part of discharging their burden of proving that they had done all that was reasonably practicable to protect employees against those risks? This question was raised in the case of R v HTM.30
In this case, two employees of HTM were instructed to move a mobile telescopic tower used for lighting a contraflow of traffic arranged for the purposes of resurfacing a road. The employees did not lower the tower as they had been trained and instructed to, and it made contact with overhead power cables carrying 20,000 volts of electricity. As a result, both employees were fatally injured. The defendant company wanted to call evidence at trial to establish that they took all reasonably practicable steps to ensure the safety of the two employees by way of training and instructions, that the accident was a result of what was done by the employees themselves and that it could not have been foreseen that they would act in that way, at least so as to require any further precautionary measures than were in fact taken. The prosecution submitted that foreseeability played no part in answering the question of whether or not there was a breach of the relevant duty. The Court of Appeal agreed with the original ruling of the Recorder, HHJ Fox QC, who determined that evidence of foreseeability was relevant ‘to the case alleged against the Defendant company …, particularly with regard to the reasonable practicability of their ensuring the health, safety and welfare of their employees …’.31
The Court in this case stated that foreseeability was a relevant factor. However, it is relevant not in the sense of what types of risks should be considered and consequently assessed,32 but rather ‘in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such eventuating has to be weighted against the means, including costs, necessary to eliminate it’. The Court referred to Lord Goff’s judgment inAustin Rover Group Ltd v HM Inspector of Factories33 and held accordingly that:Foreseeability is merely a tool with which to assess the likelihood of a risk eventuating. It is not a means of permitting a Defendant to bring concepts of fault appropriate to civil proceedings into the equation by the back door, still less does it mean that the phrase ‘reasonably foreseeable’ in itself provides the answer to the jury question. But it seems to us that a Defendant to a charge under s 2 or indeed ss 3 or 4, in asking the jury to consider whether it has established that it has done all that is reasonably practicable, cannot be prevented from adducing evidence as to the likelihood of the incidence of the relevant risk eventuating in support of its case that it had taken all reasonable means to eliminate it.34
It follows that every risk, whether, significant or miniscule, should be assessed by the employer as required by the Management of Health and Safety Regulations 1999. Regulation 3 requires the employer to conduct ‘a suitable and sufficient assessment of the risks’ to the health and safety to his employees and of persons working in his undertaking. ‘Suitable and sufficient’ is not defined in the Regulations. However, the Approved Code of Practice provides guidance on this point:The level of detail in a risk assessment should be proportionate to the risk. Once the risks are assessed and taken into account, insignificant risks can usually be ignored, as can risks arising from routine activities associated with life in general, unless the work activity compounds or significantly alters those risks. The level of risk arising from the work activity should determine the degree of sophistication of the risk assessment.
Reading this in the light of the HTM decision, it becomes absolutely clear that in the first instance, all risks, however insignificant they might be seen, should be considered and assessed. It is only after the actual assessment of the consequences of their potential eventuality that the employer can make a decision whether to disregard some of them completely or to take necessary precautions, bearing in mind the time, effort and trouble that would be required to minimise or eliminate them.
What is important, however, is that the risk that the prosecution must prove should be real as opposed to a fanciful or hypothetical one.35
In the case of R v Porter,36 the Court of Appeal tried to address this question and stated that it was not sufficient to leave it to the jury to decide it, unless it was clear from the statute. But in most cases, there will be some indicative factors that the jury must take into account in determining whether the risk is real or fanciful. None of them is determinative: but many (depending on the facts of any particular case) will be of importance.
In this case, a boy aged three and three quarters suffered a head injury when, unwatched or unsupervised by any teacher, he went down a set of steps which led to a playground and then fell face down on the bottom step when he jumped on it, having successfully managed to descend to the fourth step from the bottom. The head injury was not fatal, but, unfortunately, he became fatally ill due to MRSA at the hospital to which he was taken. The Court considered all evidence and found that ‘no child fell in such a way as to injure himself in the previous years. Furthermore, no previous accident occurred despite the same allegedly inadequate level of supervision. There will have been countless times when a child moved, unsupervised, up or down those steps, or chose to jump from one level to another, without any previously recorded accident. Further, there was nothing wrong with the construction of the steps themselves. … The fact that a young child might slip or trip or choose to jump from one height to a lower level is part of the ordinary incidence of everyday life’.37 ‘In sum, there were many considerations demonstrated by the evidence suggesting that there was no real risk of the kind which the statute contemplates, and very little, if anything, other than the fact of this tragic incident, to suggest to the contrary.’38
The Court also stated that factors such as the absence of any previous accident, in circumstances which occur day after day, will be highly relevant. ‘We acknowledge that the fact that an accident is unavoidable goes primarily to the reasonable practicability of the measures which a defendant might take, rather than the risk to safety. But that is not exclusively so … that the alleged risk is part of the everyday incidence of life goes to the issue as to whether an injured person was exposed to risk. Where the risk can truly be said to be part of the incidence of everyday life, it is less likely that the injured person could be said to have been exposed to risk by the conduct of the operations in question.’39
So, the extent of general duty under the HSWA 1974 seems to be clearer. It is clear, for example, that it is the employer’s obligation to assess risks associated with his business or undertaking and to minimise or reduce them. The required money, time and trouble will depend on the risk assessment. And if the assessment shows that it is unlikely or unforeseeable that, after taking particular precautions, a risk will result in an accident by virtue of, for example, employees’ negligence and ignorance of warnings, the employer will be able to discharge his general duty. Moreover, some risks, which are associated with every day life and can be called fanciful or hypothetical, can be ignored, even though, should they eventuate, they lead to tragic consequences.
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4. LIABILITY TO EMPLOYEES VERSUS LIABILITY TO NON-EMPLOYEES—B&Q
Although it was stated above that ss 2 and 3 of the 1974 Act create the same kind of duty to employees and non-employees, respectively, it was recently determined that it is possible for employers to discharge their duties to employees and at the same time to be liable to non-employees.
In the case of R v B&Q plc,40 it was held by the Court of Appeal that an employer may be acquitted of breach of duty under the 1974 Act s 2(1) but convicted of breach of duty under s 3(1).
In this case, Pamela Hinchliffe, a visitor to a store operated by B&Q plc, was crushed by a forklift truck driven by an employee of the store when she was talking to another employee who was struck a glancing blow by the truck. The visitor died of her injuries shortly after the accident.
The jury found the company guilty under s 3(1) but not guilty under s 2(1). The question for the Court of Appeal was to establish whether it was logical for the jury to have returned verdicts of guilty and not guilty in respect of the same fatal accident.
The Court held that the jury ‘were entitled to come to the verdicts they did, acquitting the company in respect of the duty to employees but convicting them in relation to the duties to the public’.
There were a number of factors that applied to the appellants’ employees but that did not apply to members of the public. Employees were familiar with forklift truck operations and would be on the lookout. Employees were trained in health and safety.
None of the above applied to members of the public; they would be unaware of forklift truck movements and the need to take care in respect of them.
More importantly, members of the public might well include children. Special precautions would be essential when, as is often the case, a family goes with children to shop at a store such as that operated by the appellants. Moving a forklift truck around in such circumstances, without supervision and with children unable to look after themselves as easily as adults, would be an obvious danger.41
The Court stated that it could, therefore, be quite logical for the jury to conclude that a much higher standard was applicable in respect of the public.
This decision is in line with the decision in British Steel, where the Court of Appeal noted that there is no reference in s 2(1) to the conduct of the undertaking, which is the basis of liability under s 3(1), and so it is manifest that the content of the duty under s 2(1) is different (to employees) from that under s 3(1) (to non-employees). But it is the same kind of duty: the company, the employer, is liable when the necessary conditions for liability are fulfilled, namely there was a failure to ensure the health and safety of an employee or a non-employee.
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5. INDIVIDUAL LIABILITY
The HSWA 1974 includes two provisions, namely ss 7 and 37, which deal with individual liability. There is no reversal of the burden of proof under these sections.
Under s 7, employees can be guilty of an offence for breach of a duty to take reasonable care for the health and safety of themselves and others who may be affected by their acts or omissions and for failure to cooperate in the performance of statutory requirements.
For example, in the tragic case of the outbreak of legionella in Barrow, Cumbria, in 2002, when seven people died, Ms Beckingham, the Design Services Group Manager, was convicted for breach of s 7 of the 1974 Act and fined £15,000. This was a controversial case where charges of manslaughter and corporate manslaughter were also brought against Ms Beckingham and the Barrow Borough Council, respectively.
Directors are dealt with specifically in s 37 and commit an offence when: the body corporate is proved to have committed an offence under the relevant statutory provisions, and the offence is shown to have been committed with the consent or connivance or is attributable to the neglect of a director.
‘Director’ here means a director, manager, secretary or other similar officer of the body corporate. The prosecution has to prove the consent, connivance or neglect and its link to the company's commission of the offence.
Surprisingly, there is no definition of director in the Companies Act. Section 250 of the Companies Act 2006 refers to ‘any person occupying the position of director, by whatever name called’. It follows that a director can only be recognised by function, not title, and to establish the extent of functions might require consideration of, among other things, the type and size of company, the articles of association and any service contract. There is no formula for determining who is a director. This will depend on the circumstances in each case.
The case of R v Boal42 is the leading authority in this regard. In this case, the Court of Appeal considered the extent of s 23(1) of the Fire Precautions Act 1971, which is identical to s 37 of the 1974 Act. The court held: ‘… the appellant was only properly to be regarded as imperilled by section 23 if, as the assistant general manager of the shop, he had “the management of the whole affairs of the company”, was “entrusted with power to transact the whole of the affairs of the company”, and was “managing in a governing role the affairs of the company itself.” The intended scope of section 23 is, we accept, to fix with criminal liability only those who are in a position of real authority, the decision-makers within the company who have both the power and responsibility to decide corporate policy and strategy. It is to catch those responsible for putting proper procedures in place; it is not meant to strike at underlings’.43
Another issue in s 37 is related to the terms ‘consent, connivance and neglect’. Whereas it is easy to understand the meaning of the consent and connivance (‘I know about this, but I turn a blind eye’), the meaning of ‘neglect’ has posed some questions.
Recently, there have been a number of cases where individual directors and managers were prosecuted and convicted under s 37 of the 1974 Act. In R v E (also known as R v P),44 the Court of Appeal had to consider the meaning that should be given to the concept of ‘neglect’ in s 37 and what the prosecution would have to prove in relation to neglect. Whereas it is clear that connivance requires knowledge on part of the director or officer, the question was whether within the meaning of ‘neglect’ the prosecution has to establish that the accused had actual knowledge of a state of facts before the burden can be shifted to him, or whether it is sufficient that, by reason of the surrounding circumstances, the defendant should have been put on notice, so as to require him to check that relevant safety procedures were in place.
The case arose out of ‘a tragic accident at the docks when a six year boy was thrown from a fork-lift truck, upon which he was being carried as a passenger, when it collided with a second truck which was “riding reel”, which is the description given to a practice of carrying a third and unclamped newspaper reel on the top of two clamped reels’.
The Court referred to the earlier and the only relevant decision relating to this section considered by an appellate court, that in Wotherspoon v HM Advocate,45 and held: ‘The question, at the end of the day, will always be … where there is no actual knowledge of the state of facts, none the less the officer in question of the company should have, by reason of the surrounding circumstances, been put on inquiry so as to require him to have taken steps to determine whether or not the appropriate safety procedures were in place. That will depend in every case on the evidence put forward by the prosecution in the first instance, and, if there is sufficient evidence to justify the matter going to the jury, the overall evidence, including that of the defendant, at the end of the trial’.46
The Court in R v E47 concluded that the prosecution did not have to prove that Mr. G, as managing director of the company and chair of their strategic health and safety management, knew of the riding reel practice and its dangers if the prosecution could prove that there were circumstances that ought to have put Mr. G on enquiry as to that practice.
The Court stated: ‘it may well be that in order to establish that there is any case to go before the jury the prosecution will have to establish that Mr G did know of the practice in question and its dangers. But the prosecution does not have to prove that if there were circumstances which ought to have put him on enquiry as to that practice that may be sufficient to require an answer from Mr G. That is a question, therefore, which can only be answered at the end of the prosecution case’.48
It follows that the prosecution has to show that an individual knew about a particular practice and dangers associated with it because he should have known about them, but the prosecution does not need to establish how the individual should have come to know about them. The latter can only be established by evidence at the end of the case.
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6. CONCLUSIONS
A number of conclusions can be drawn from the above discussion. One thing now clear is that the employer will not necessarily be liable for negligent acts of employees under the HSWA 1974. Whether he could discharge his general duty in principle has been a difficult issue for some time and a number of factors have been discussed by judges in an attempt to interpret the law correctly. In particular, it is important to consider the court’s approach to the qualifying phrase ‘so far as is reasonably practicable’. For some time, it has been construed as a defence required of the employer. However, in R v HTM,49 the Court of Appeal demonstrated, with reference to well established authorities, that this was the wrong approach, and that the phrase should be seen as part of the general duty placed on the employer, which means that the employer must, so far as is reasonably practicable, eliminate or, when it is impossible, minimise risks to health and safety of employees and others. On the one hand, it seems to be immaterial whether the phrase is part of the defence or a duty, since it is still for the employer to demonstrate that he has done everything ‘so far as is reasonably practicable’ to avoid a risk of injury. However, this is not the case since if the phrase qualifies the duty, this allows the employer to demonstrate that some risks could not be avoided because they were not foreseen. The Court considered the meaning of ‘risks’ in this respect and again, by referring to previous authorities, confirmed that risks should be understood ‘in the sense of likelihood of the incidence of the relevant risk’; it also held that ‘the likelihood of such eventuating has to be weighted against the means, including costs, necessary to eliminate it’50 and that the employer should be able to foresee the likelihood of risks eventuating before he attempts to eliminate or minimise them. A related question was also posed as to what kind of risks should be considered and assessed by the employer. The answer that was given in the case of R v Porter51 was that the employer should assess real as opposed to fanciful risks.
It was also established recently that the employer can have a higher duty to non-employees, for example members of the public, than to employees since a number of factors can apply to employees but not to non-employees. Employees can be placed in a more advantageous position because of the level of familiarity with the job, training, instruction and supervision. This point was discussed and established in the case of R v B&Q plc,52 which to some extent is consistent with the decision in R v Swan Hunter Shipbuilders Ltd53 in which shipbuilders gave instructions to their own employees for the safe use of oxygen equipment but gave no instructions to employees of subcontractors; this resulted in a fire accident which killed eight of the subcontractors’ employees.
Finally, we looked at the courts’ interpretation of s 37 and the meaning of ‘neglect’ attributable to a director or another corporate officer within the context of this section. The Court of Appeal made it very clear that neglect, which does not require the director to have exact knowledge of a particular factual situation that led to an accident, should not be confused with the notion of connivance, which requires such knowledge.
The above discussion also helps us better to understand the nature of the case which must be made by the prosecution when prosecuting for breaches of general duties and when prosecuting under s 37.
Previous Section Footnotes
↵1 Health and Safety at Work Act 1974 s 40.
↵2 [2002] EWCA Crim 2949, [2003] ICR 586.
↵3 Section 2 provides that it is the ‘duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’.
↵4 Section 3 provides that every employer and every self-employed person must ‘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 and safety. A self-employed person owes the same duty to himself. Each must give such persons prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health and safety’.
↵5 Section 4(2) states that ‘it shall be the duty of each person who has, to any extent, control of premises to which this section 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’.