Criminal Culpability: Polyflor Ltd v Health and Safety Executive4

The Court of Appeal upheld the conviction of the appellant employer for failing so far as reasonably practicable to ensure the health and safety of its employees contrary to s.33 Health and Safety at Work etc Act 1974.

An employee was injured when his arm got caught in machinery whilst he was checking it. The machinery normally ran with guards attached but, when it became blocked, the employee raised a permit to work to run the machine without guards. Permission was given and the employee put a spanner in the belt to find the point where the belt was rubbing. The spanner got caught in the machinery, the employee could not let go of it in time and he broke his arm. The employer was subsequently prosecuted.

At trial the employee accepted that he had been foolish and an expert for the prosecution  gave evidence that “if someone’s going to do something stupid, you cannot stop them”. As a result the employer made a submission of no case to answer. However, the judge found that there was a case to answer based on the existence of risk arising from the unguarded use of the machine. The employer was found guilty by the jury.

The employer appealed submitting that the judge erred in rejecting the submission of no case to answer as there was no evidence of a breach of duty and the judge used the wrong test. The employer argued that a risk would only materialise if an employee did something very foolish, which the employee accepted he did, and that was not sufficient.

The appeal was dismissed. For the case to go to the jury, the prosecution had only to adduce some evidence of exposure to risk. Once that was established the onus shifted to the employer to show, on the balance of probabilities, that it did all that was reasonably practicable to ensure that its employee was not exposed to such risk.

The employees had been exposed to a clear, obvious and material risk to their health and safety by the removal of guards on the machinery so that a maintenance operation could  be performed while the machine was still in operation. Such an activity was permitted by the employer under a permit to work system such that there was in place a system whereby employees were exposed to a clear risk. That was sufficient for the evidential threshold to be met. The creation of a material risk by the carelessness, including gross carelessness, of an employee remained a material risk for the purpose of the offence.