Legal spotlight - October/November 2019

THE RECENT sentencing of an employee for health and safety failings after an apprentice fell from a fork lift truck and sustained serious injuries is reminder that obligations in relation to safeguarding safety and health attach not only to employers and that employees too are charged with taking reasonable care for the safety and health of themselves and others who may be affected by their acts and omissions.

According to the Health and Safety Executive (HSE), Mr Yardy used a forklift truck with an attached potato box to lift an apprentice electrician four metres off the ground to carry out electrical repairs at a potato storage warehouse. This was inherently unstable and the apprentice fell to the floor, sustaining a punctured lung and broken ribs. The HSE investigation found the apprentice’s employer had carried out a risk assessment and purchased suitable equipment for work at height, but that this was not used by the employee in charge of work at the site. Accordingly Mr Yardy was convicted of health and safety failings and fined.

HSE guidance on when it might be appropriate to proceed against individual employees includes the following:-

• where employers are primarily at fault, action will normally proceed against it alone;

• where the employer has taken all reasonably practicable steps to ensure compliance then action against the employee should be considered;

• was there a system in work in place and did the employee follow it?

• was the employee warned of any non observance of safe systems of working before?

• did the employees offence create an obvious risk?

As the UK strives to maintain its reputation as a standard bearer in occupational safety and health, the scrutiny of relevant individual's actions, whether employees, directors, managers or others is likely to continue. Enforcement agencies have made it clear that they will prosecute individuals in appropriate cases, with the prospect of increasing fines and the growing threat of an immediate custodial sentence for those convicted in the most serious cases.

Health and safety prosecutions for both individuals and organisations are triable in either the Magistrates or Crown Courts. In days gone by, where the prosecution was looking for a hefty fine/sentence it would lobby for the Crown Court. Not so now, with unlimited fines possible from the Magistrates Court for section 7, as well as other health and safety, offences. And magistrates are beginning to wield this power; of the 36 fines of over £1million levied since September 2017, only 5 emanated form Magistrates Courts but of those all were imposed in the last 12 months to 30 September 2019. The Crown Court retains the ability to impose longer custodial sentences, however.

Employees play a vital role in securing the reduction of hazards, ill health and accidents arising from work activities. With responsibility not only for their own safety but that of others too, those found to be in breach can expect heftier sentences, as enforcement authorities and the judiciary not only hold those at fault to account, but determine to bring the message home that safety and health is a collective responsibility.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com