Written by Claire Brook – Every employer has an implied duty to take reasonable care of the health and safety of employees – and to take reasonable precautionary steps to prevent injury.
In addition to the implied duty to take reasonable care of the health and safety of employees, there are duties arising under statute that employers should take into consideration. The Health and Safety at Work etc Act 1974 sets out those basic health and safety duties and acts as the framework for other regulations such as the Management of Health and Safety at Work Regulations 1999. But the range of legal obligations on a specific business or employer varies depending on a number of factors, including the activities carried out by the employer and the number of employees.
The main obligations that the employer must fulfil are:
- To protect the health and safety of their employees and those that are affected by their activities, so far as is reasonably practicable
- To assess and review work-related risks faced by its employees and those affected by its activities
- To make and give effect to arrangements for the planning, organisation, control, monitoring and review of the preventative and protective measures
- To audit the adequacy of the procedures
- To appoint somebody to implement the measures needed to comply with appropriate laws, and
- To provide its employees with information on the risks they face and the preventative and protective measures to control those risks
An individual director, company secretary or manager can be held criminally responsible for health and safety offences if the employer is found guilty of an offence and the offence was committed with the consent or connivance of, or was attributable to, any neglect on the part of the director or manager.
Directors must comply with the Combined Code on Corporate Governance (Code) which requires them to maintain a system of internal controls covering health and safety. As a consequence of the Code, the Turnbull report was produced to offer guidance. This places responsibility for internal controls firmly on directors.
In addition, an individual can be held to have committed manslaughter when he causes death through gross negligence. There has been a rise in successful convictions following a focus on assigning greater accountability to officers and workers for serious breaches of health and safety legislation. In fact, on 4 July this year, the Sentencing Council announced that it was proposing new sentencing guidelines for manslaughter offences, evidencing the increased focus.
Further to common law manslaughter, the Corporate Manslaughter and Corporate Homicide Act 2007 introduced the offence of corporate manslaughter. The offence applies to all organisations operating in the UK but not to individuals.
The role of the HSE
The Health and Safety Executive (HSE) takes preventative and enforcement measures in relation to compliance with health and safety obligations and has enforcement options including providing information and advice, serving notices on duty-holders, withdrawing approvals, varying licences, conditions or exemptions or issuing cautions and prosecution.
Recent HSE decisions include that of Maxi Haulage Limited, which was fined £100,000 after a load fell from the trailer onto a worker. The worker suffered life-changing injuries and the HSE found that the site had not implemented appropriate systems and procedures.
On 6 July 2017, St Albans Scaffolding Limited was fined £5,500 and the director was fined £915 after a worker fell 20ft to the ground and suffered fractures to his leg and ankle. HSE found that the company and director failed to ensure the worker was trained to the required competence, the director knew of this, and the worker had not been adequately supervised.
Western Power Distribution (South West) PLC was recently fined £800,000 following the death of an employee. The employee was working at the top of an electricity pole when a colleague cut the only remaining wire. The employee’s pole fell to the ground with him still attached. HSE found that the work had not been properly planned, did not assess the risks of the job, and there was inadequate communication of work methods as well as inadequate on-site coordination.
Compliance with your health and safety duties may avoid accidents like those outlined above but may also avoid fines and other penalties.
Claire Brook is an employment law partner at Aaron & Partners LLP