Hand in hand with increasing levels of fines in the regulatory enforcement landscape comes an increased appetite for the prosecution of individuals along with the corporate body.
Directors, Company Secretaries and those in senior positions within companies can attract prosecution under Section 37 of the Health & Safety at Work Act 1974 where they have consented or connived in the corporate offence or have neglected to prevent it happening. But it is important to bear in mind that those lower down the workforce chain have responsibilities too. Employees in terms of Section 7 of the Act have a duty to take care for their own health and safety, as well as others’ who may be affected by their activities, while at work and to co-operate with their employer in adhering to their safe systems of work.
The Health and Safety Executive’s (“HSE”) Operational Circular addressing the prosecution of individual employees sets out – broadly – that where it was truly the individual that was at fault in not following his employer’s safe system of work then that employee will be liable to Section 7 prosecution. The classic example would be where an employee working with a machine that required guarding removed the guard supplied by his employer and contrary to his employer’s instructions and the training provided to him – in essence failing to stick to his employer’s safe system. Contrast that though with where the employee is given no or inadequate instruction or training by his employer and a common practice has been established of removing the guard for the sake of convenience. What then? Well the indication from HSE is that they would look more to prosecution of the employer in those circumstances than to the hapless employee.
This was all rather neatly reflected in a Section 7 prosecution case the HSCC Team have just concluded.
Our client, Anthony Soriani, was employed as depot manager by Tarff Valley Limited at their site in Whauphill, near Newton Stewart. He operated a telehandler there as part of his duties in mixing animal feeds for farmers. He complained to his employer that the racking system they had there for storing feedstuffs was inadequate and that the depot was understaffed. These complaints however fell on deaf ears. While he was charged with having responsibility for health and safety on site, he was given no training in that direction. Supervision and monitoring from his employer was scant. Unfortunately (and perhaps consequently) a practice developed in which to facilitate the retrieval of animal feed from the racking, Mr Soriani (and other employees) would lift staff, and on occasion a customer, to height in the elevated bucket of the telehandler to retrieve bags of feed. This would happen when items were stored in front of the racking which made it difficult for the racking to be accessed by the fork lift trucks which were supposed to be used for such retrieval. No height protection measures were deployed when anyone was lifted in the telehandler. Tragically, on 31 January 2014, while a customer was retrieving bags of feed from the top of the racking in this way, he fell and died from his injuries.
Mr Soriani was charged on Indictment with a Section 7 offence in that he failed to take care of the safety of those staff and customers he had raised to height in this way, His employers, Tarff Valley, were indicted that they failed to supervise him to ensure that he implemented their safe system of work which was deployment of the fork lift trucks to retrieve feed – not lifting people to height in the telehandler bucket. Tarff Valley pled Guilty and were fined £28,000 taking account of an early plea.
Mr Soriani was then faced with a dilemma. His clear view was that his employer had not provided him with adequate health and safety training and that they had simply left him to “get on with it” in a busy depot with racking problems and understaffing. Tarff Valley’s position and that adopted by the Crown was that Tarff Valley had a safe system for retrieval of feed using the forklifts but that Mr Soriani had failed to implement this and contrary to instruction; to training given on the use of telehandlers not to lift anyone to height in them unprotected and in the past to warnings from management witnessing Mr Soriani lifting people to height in this way, not to repeat the error. The Crown evidence looked strong on paper and one might think reasonably that lifting persons to height unprotected was inherently dangerous and a matter of common sense.
However, could Tarff Valley truly be said to have had a safe system of work in this instance with adequate direction on it to its employees? Rod Sylvester-Evans examined the evidence and concluded that Tarff Valley failed to develop and instil the right safety culture at Whauphill and provided inadequate support to Mr Soriani. Against that background, he thought that Mr Soriani’s actions while admittedly in error were “not unexpected” with Tarff Valley failing to take the necessary corrective action.
Mr Soriani entered a plea of Not Guilty and a five day Trial before a Jury took place concluding on 16 June. As the evidence unfolded there was support from fellow employees for Mr Soriani’s position of lack of support from his employer and evidence that Tarff Valley’s health and safety direction and instruction was verbal only with no audit trail or evidence of compliance monitoring. Rod Sylvester-Evans spoke convincingly to his expert report and Mr Soriani himself gave credible evidence of the daily difficulties he had at the workplace and of a lifting practice which being repeated and left unchecked over the years had lost its sense of risk.
There was palpable relief when the Jury returned a majority verdict of Not Guilty. Mr Soriani could well have been facing imprisonment on conviction of up to two years.
The result was never a forgone conclusion as in essence we sought to persuade the Jury that they should focus on the context in which Mr Soriani’s actions took place. Superficially and admittedly they were wrong but set against an inadequate health and safety system at work, we were successful in persuading the Jury that they were at least explicable and such that Mr Soriani ought not to be held criminally responsible for the tragic death. The achievement here lies in the Jury looking at the “bigger picture”. Had Tarff Valley’s health and safety system been up to scratch there would have been no excuse.