The importance of safe systems of work in the context of individual liability

At BTO, we were recently instructed in relation to a workplace incident on a construction site, where an employee failed to take reasonable steps to ensure the safety of his colleague when reversing a company vehicle. As a result of his failure, a fatality occurred. Individual liability was placed on the employee who was prosecuted as an individual.

Importance must be placed on those working in the construction and engineering industry to ensure that you follow safe systems of work, to limit workplace accidents and avoid individual liability

Under the Health and Safety at Work etc. Act 1974 (herein referred to as “The Act”), it can sometimes be overlooked that employees have individual obligations for their own health and safety and the health and safety of others.

Employees have a general duty that they must discharge in their working life which is imposed by Section 7 of The Act.

The Act provides that it shall be the duty of every employee, whilst at work:

(a) to take reasonable care for the health and safety of themselves and other persons who may be affected by their acts or omissions at work; and

(b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to cooperate with him so far as is necessary to enable that duty or requirement to be performed or complied with.

Potential Prosecution

Where the employer is primarily responsible for the circumstances that give rise to a potential prosecution, a prosecution is likely to be taken against the employer themselves. If, during the investigation stage, an employer is considered to have taken all reasonably practical steps to ensure compliance, then there remains a possibility that focus may shift to the employee.

The investigator must be satisfied that the evidence presented provides a realistic prospect of a conviction against the individual and, in the case of the Crown Office and Procurator Fiscal Service, that a prosecution is in the public interest.

A prosecution can be raised under Section 7 of The Act if it can be proven that the person is:

(a)   Employed;

(b)   “At work” – i.e. in the course of their employment;

(c)   Did not take reasonable care for someone’s health and safety (or their own); and/or

(d)   That they did not cooperate with their employer so far as was necessary to enable their employer to comply with a statutory duty or requirement.

There are various legal nuances to consider to assess the potential criminal liability an individual may face. Legal advice should be sought at an early stage in the health and safety investigation to allow issues of potential conflict to be identified and separate legal advice and assistance to be provided where appropriate.

The distinction between the potential liability of the employer and the employee is often centred around whether the employer did all that was reasonably practicable to prevent the incident from occurring.

The HSE will look at whether an employee has had adequate training and whether the act was either accepted or condoned in the company. If it is found that an employee received inadequate training and the potentially dangerous act or omission was nonetheless accepted and condoned in practice, then it is more likely that action would be taken against the employer.

If there is an investigation into a health and safety related incident, companies and employees may want to consider all contributing factors to determine who may be at risk of facing prosecution.

The HSE may consider several factors relating to the employee, including whether the offence was solely a result of the employee’s actions or inactions and whether the employee failed to follow an established and correctly managed and monitored safe system of work.

If an employee is convicted of an offence under Section 7 of The Act, they can be liable to pay a fine or serve up to two years in prison, depending on the severity of the breach. Various mitigating factors may reduce the sentence. In a recent case, the manager of a nursery was convicted and fined £2,000 for the accidental death of a child.   She was convicted for failing to take reasonable care to oversee health and safety at the nursery during the period 3 June – 9 July 2019, during which time the tragic death occurred.   The nursery was separately fined £800,000 for their Health and Safety failing relating to the incident.

It is important that if a Health and Safety incident occurs in the workplace you seek advice immediately following the incident. This applies just as equally to minor incidents as it does to fatal accidents. It is important to identify the potential risk factors of a prosecution against an individual employee at an early stage.

At BTO we pride ourselves in being able to assist with Health and Safety related incidents immediately following accidents occurring. It is important to seek legal advice to ensure that the company, directors and employees themselves are afforded appropriate legal advice, assistance and representation. We can tailor our advice and provide a step-by-step approach advising on how to deal with the incident.

Reach out to key contact Vikki Watt, Partner: vwa@bto.co.uk / 0141 221 8012 if you require assistance with related matters.