Health & safety prosecutions: Individual failings
Tom McNeill, Senior Associate at BCL Solicitors examines the responsibility and culpability of employers for the failings of their employees
One common battleground in health and safety prosecutions is whether, and the extent to which, failings by individual employees place the employer in breach of its health and safety duties. Do organisations have a defence if they have done everything which they can be reasonably expected to do to ensure safety? If not, to what extent are organisations judged culpable for the failings of individuals?
Scope of legal duties
The Health and Safety at Work etc. 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(1) and 3(1) 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. The HSWA also imposes other duties on employers and other persons. Health and safety regulations created under the HSWA impose specific (and sometimes stricter) requirements. This article addresses only the duties created by sections 2 and 3 of the HSWA.
The employer’s duties are personal and non-delegable, meaning that employers can delegate the performance of the duty to others, but not responsibility for non-performance. Even if an organisation has devised a safe system of work, a failure by an employee to operate that system is likely to place the employer in breach of its duty. Reasonably practicable steps will include not only instructing employees on safety procedures, but also ensuring that they are followed, such as by reasonable supervision and monitoring.
What does that mean in practice?
In British Steel plc  (R v British Steel plc  1 WLR 1356), 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 British Steel’s supervisor was appropriately qualified or that British Steel were entitled to rely on him. British Steel called expert witnesses (including a former principal inspector at the Health and Safety Executive (HSE)) who said that British Steel 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, and thereby failed to prevent reckless behaviour which resulted in the accident, it was difficult to see how the company could argue that it had taken reasonably practicable steps. Inevitably, the jury convicted.
British Steel appealed including on the ground that the company had taken reasonable care at the ‘directing mind’ level by delegating supervision to a competent employee. The supervisor was not a ‘directing mind’ and any failings by him should not be attributed to the company. The Court of Appeal rejected this argument. It held that, subject to a defence of reasonable practicability, section 3(1) imposed absolute liability on an employer, and a corporate employer could not avoid that liability on the basis that the company at senior management or ‘directing mind’ level had taken all reasonable care to discharge its duty; such an employer was liable under section 3(1) in relation to acts of employees which exposed non-employees to risk to health and safety, whatever the employee’s level in the hierarchy.
Do individual failings always place the employer in breach?
The Court of Appeal has acknowledged that the approach laid down in British Steel can lead to ‘absurd’ (or ‘extreme’) consequences and, in a handful of cases, has allowed the possibility of exceptions.
In R v Gateway Foodmarkets Ltd  (R v Gateway Foodmarkets Ltd  ICR 382), a case concerning section 2(1) of the HSWA, the Court of Appeal held that a company is in breach of duty unless all reasonable precautions have been taken by the company or on its behalf. Accordingly, an employer is not able to rely on the reasonably practicable ‘defence’ when any of his employees have been negligent, except in that ‘rare case where the individual employee was on a frolic of his own, and where there was no failure to take reasonable precautions at any other level’.
In R v Nelson Group Services (Maintenance) Ltd  (R v Nelson Group Services (Maintenance) Ltd  ICR 1004), a case concerning section 3(1), the Court of Appeal allowed that there may be circumstances in which an employee carrying out his work carelessly and thereby exposing members of the public to risk did not put the employer in breach:
‘The fact that the employee who was carrying out the work, in this case the fitter in 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 the third persons affected by the employer’s undertaking were not exposed to risks to their health and safety had been done.’ The question of what was reasonably practicable is a question of fact for the jury, which depends on the circumstances of each case.
The Court of Appeal in R v HTM Ltd  (R v HTM Ltd  ICR 1383), having considered Nelson Group Services and Gateway Foodmarkets Ltd, found these judgments to be binding. ‘Their effect is that the defendants will be entitled to put before the jury evidence to show that what happened was purely the fault of one or both of their employees [who had been fatally injured]. If the jury were persuaded that everything had been done by or on behalf of the company to prevent that accident from happening, it would be entitled to be acquitted.’
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 organisations have a realistic prospect of acquittal.
How culpable is the organisation?
More usually defendant organisations will enter a guilty plea while seeking to mitigate their position by persuading the investigating authority and ultimately the Court to a favourable view of its culpability (and the likelihood of harm) notwithstanding the failings of an employee. This poses a number of difficulties.
In British Steel, a case in which the prosecution did not dispute that British Steel’s supervisor was appropriately qualified or that British Steel were entitled to rely on him, and where there was expert evidence that British Steel could not have done more as a company, the sentencing judge viewed the breach as a technical one and fined British Steel a nominal £100 (it was 1995).
This, as it happens, was precisely the view of the Committee on Health and Safety at Work, chaired by Lord Alfred Robens, whose recommendations were implemented in the HSWA. The Committee expressly recommended that organisations in British Steel’s position should not be prosecuted:
‘The fact is – and we believe this to be widely recognised – that the traditional concepts of the criminal law are not readily applicable to the majority of infringements which arise under this type of legislation. Relatively few offences are clear-cut, few arise from reckless indifference to the possibility of causing injury, few can be laid without qualification at the door of a particular individual. The typical infringement or combination of infringements arises rather through carelessness, oversight, lack of knowledge or means, inadequate supervision or sheer inefficiency. In such circumstances, the process of prosecution and punishment by the criminal courts is largely an irrelevancy. The real need is for a constructive means of ensuring that practical improvements are made and preventative measures adopted. Whatever the value of the threat of prosecution, the actual process of prosecution makes little direct contribution towards this end…We recommend that criminal proceedings should, as a matter of policy, be instituted only for infringements of a type where the imposition of exemplary punishment would be generally expected and supported by the public. We mean by this, offences of a flagrant, wilful or reckless nature which either have or could have resulted in serious injury…’.
The Court of Appeal, however, disagreed. Not only were they of the view that exemplary punishments of 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 was a highly dangerous operation. A man was killed. Mr. Crabb [the supervisor] was negligent. In these circumstances, the fine of £100 was derisory. In our view, a substantial fine was required but, unfortunately, it is beyond our power to increase the fine.’
The Court of Appeal’s view won out over time. It is now commonly the case that if, for example, 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.
In addition, this strict application of the employer’s duties goes hand-in-hand with what has become the standard regulator view of accident causation, which is shortly summarised in HSE guidance (HSE guidance ‘Investigating accidents and incidents’ (2004): ‘Blaming individuals is ultimately fruitless and sustains the myth that accidents and cases of ill health are unavoidable when the opposite is true. Well thought-out risk control measures, combined with adequate supervision, monitoring and effective management (i.e. your risk management system) will ensure that your work activities are safe.’
And later: ‘Investigations that conclude that operator error was the sole cause are rarely acceptable. Underpinning the ‘human error’ there will be a number of underlying causes that created the environment in which human errors were inevitable. For example, inadequate training and supervision, poor equipment design, lack of management commitment, poor attitude to health and safety…The root causes of adverse events are almost inevitably management, organisational or planning failures.’
This guidance reflects how investigating authorities typically investigate accidents. An assumption that taking reasonable steps at the ‘management’ level will ensure safety leads inevitably to a conclusion, following an accident, that all reasonable steps at the management level were not taken. Following a serious accident, it results in decisions to prosecute even the most conscientious organisations; and supports conclusions that the organisation should be judged culpable for individual negligence, an approach which is all but enshrined in the HSE’s Enforcement Management Model.
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. Blaming individuals does not help. As much as for legal and factual reasons, it is usually deeply unattractive.
Instead, those defending organisations will need to focus on the systems in place. Often supported by expert evidence, they will need to explain persuasively what those systems were, why they were appropriate, and why it was not reasonably practicable to do more. When there are deficiencies in the systems, these deficiencies will have to be remedied. Sometimes an organisation may make improvements beyond what is required in law with a view to achieving the highest possible safety standards.
If the case cannot be defended and a mitigation strategy is adopted, while the relevant Sentencing Guidelines are ambiguous and, therefore, susceptible to judicial intuition, they do allow scope to persuade a Court that an organisation’s procedures ‘did not fall far short of the required standard, for example, because significant efforts were made to address the risk although they were inadequate on this occasion,’ as opposed to there being, for example, ‘a serious and/or systematic failure within the organisation to address risks to health and safety.’
If such arguments are successful, as well as reputational benefits, any fine would be significantly reduced. With that in mind, the best chance of persuading the Court is to have already persuaded the investigating authority. The best chance of persuading the investigating authority is by strategic engagement from the outset, founded on a thorough understanding of the facts and the law.