Prosecutions of firms and individuals by the Health and Safety Executive (HSE) after incidents resulting in serious injuries or loss of life have become a common feature of the legal landscape. When deciding whether to bring a prosecution, the HSE must consider issues including whether the action is proportional; targeted at the person(s) or firm responsible for the event; applied consistently and transparently; and in the public interest.
Public interest is seen to arise in various ways, but in particular where there is one of the following:
- A death as a result of a breach of regulations
- Reckless disregard for the law or health and safety practices
- Repeated breaches of health and safety at work legislation
When a prosecution does take place, the courts have wide scope to punish offenders with unlimited fines and custodial sentences of up to two years. For more serious incidents, manslaughter or corporate manslaughter charges may also follow.
Increasing action by the HSE
There is little doubt that the number of prosecutions has increased over the past 30 years. The following case studies may also indicate a toughening of the HSE’s approach and an increasing tendency to focus on groups or individuals who are perhaps not obvious targets.
Subcontractor sustains fatal injuries
The Moor Park Charitable Trust, the body responsible for running the Moor Park School, engaged a contractor, M, to demolish a large wooden classroom. M subcontracted Mark Evans and four other labourers to carry out the task.
During the demolition work, integral building supports were removed, resulting in the collapse of the roof. Mark was killed and the other four labourers had a lucky escape. The HSE took action against the trust. Because the trust had no previous cautions and entered an early guilty plea, the fine was restricted to £25,000, plus £15,000 in costs.
Litter picker dies in vehicle accident
Damian Griffiths was employed by an environmental services company to do litter picking on the grass verge of a busy road in Kent. A colleague was driving a caged vehicle slowly alongside him, so that litter could be placed in the cage. Another vehicle collided
with the rear of the caged vehicle, shunting it into Damian, who was killed.
The HSE prosecuted the employing company, who admitted a breach of the Health and Safety at Work Act 1974. They were fined £225,000 and more than £95,000 in costs. In both cases, the HSE identified parties that might not have been seen as the immediate cause of the accident. In the first example, it was the main contractor, M, who had employed the victim.
However, the HSE identified the school trust as the prime mover in the incident, criticising it for failing to engage a competent and experienced contractor. In the second case, the HSE did not target the driver of the vehicle that hit the caged vehicle, instead prosecuting the employing firm for failing to operate a safe system of work.
While HSE enforcement is not intended to assist civil claims, the effect of a successful prosecution on a connected civil claim is obvious. In the first example, the school trust was probably content in the knowledge that it had delegated responsibility to the main contractor. In the second case, the employing company’s immediate reaction would probably have been to attempt to redirect a civil claim to the insurers of the second vehicle.
However, in both cases, civil claims on the back of an HSE prosecution would almost certainly have been indefensible. Lessons to be learned Independent schools, colleges and academies, in particular, must consider their frontline responsibilities and cannot rely on the delegation of tasks to avoid criminal and/or civil liability. Each task, whether outsourced or not, must be carefully assessed; detailed risk assessments are essential. Evidence of competencies and details of PL/EL insurance cover need to be obtained whenever contractors are engaged.
Employees working away from their usual environment call for special attention. A lack of control over the external place of work will not be tolerated as an excuse for failing to adhere to health and safety legislation and best practices. While a defendant may gain comfort from the fact that any civil liability devolving upon them may be the subject of an insurance indemnity, criminal fines and other punitive measures are specifically excluded by virtue of law and public policy. Risk managers must be alert not only to the financial consequences of an HSE prosecution, but also to the reputational impact that could ensue.
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