Health & Safety Prosecutions: Individual Failings

• Published date: 31 May 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Health & Safety, Trials & Appeals & Compensation, Personal Injury
• Law Firm: BCL Solicitors LLP
• Author: Mr Tom McNeill

BCL Senior Associate Tom McNeill discusses the extent to which organisations in health and safety cases are held responsible, and punished, for the failings of individuals.

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.¹

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 [1995] ² 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...