The Court of Appeal has confirmed that exposing employees to a risk to health and safety can result in a conviction even where the risk only materialises because of employee gross carelessness.
For the purposes of general health and safety duty under Section 2 of the Health and Safety at Work etc Act 1974 the initial burden on the Prosecution was to prove that an employees has been exposed to risk even if the risk had been created by the carelessness (including gross carelessness) of the employee. Once that has been established the onus shifted to the Defendant to show that on the balance of probabilities the employer has done all that was reasonably practicable to ensure that its employee has not been exposed to such risk.
In the case of Polyfloor Ltd –v- Health & Safety Executive  EWCA Crim 1522 a Defendant Company failed in its appeal against conviction at the Crown Court in Manchester for breach of its general health and safety duty under s.2 HSWA 1974 to ensure so far as reasonably practicable the health, safety and welfare at work of all its employees.
The Defendant argued that the Judge at first instance was wrong to allow the case to go to the Jury as the Prosecution had failed to establish that there was a material risk. The risk, according to the Defendant had only been created by the foolish act of an employee.
In rejecting the appeal, the Court of Appeal agreed that the Prosecution only had to adduce some evidence of exposure to risk.
The creation of a material risk by the carelessness (including gross carelessness) of an employee remained a material risk for this purpose.
Once that had been established the onus shifted to the Defendant to show on the balance of probabilities that it did all that was reasonably practicable to ensure that its employee was or its employees were not exposed to such risk. The Prosecution did not have to prove that a particular accident was foreseeable or that it even caused an accident.
Permission had been granted by the Defendant employee to run machinery without guarding in place so that the tracking of belts could be observed following work on the machinery to clear a blockage. As the machine was running an experienced maintenance engineer used a spanner in the machinery to test whether one of the belts was rubbing.
The spanner became caught in the machinery and the technician was unable to release his grip before sustaining a broken arm.
By his own admission the act of the technician was foolish. The argument of Defence Counsel both at trial and on appeal was essentially that the risk was attributable to the foolish act of an employee and not the system of work.
Even the expert for the Prosecution said in a response to a question from the Judge "at the end of the day, if someone is going to do something stupid you cannot stop them".
The point which was being argued in this case was whether the Prosecution had succeeded in establishing the existence of a material risk to the Defendant's employees. The Court accepted that running machinery without guarding as part of maintenance did create a risk notwithstanding that the actual accident had been caused by the employee using a spanner in the running machinery.
At trial, however the Defendant chose not to adduce evidence in support of the statutory defence under s.40 HSWA that it was not practicable or not reasonably practicable to do more than was in done to satisfy the duty or requirement or that there was no better practicable means than was in fact used to satisfy the duty or requirement.
In the penultimate paragraph of his judgment, Mr Justice Foskett suggested that a jury was more likely to be persuaded that an employer has probably done all that it could reasonably have done to obviate an obvious risk if it adduces a positive case that other options have been considered, but for whatever reason none has been considered reasonably practicable.
It is quite possible that had the jury in this case been given evidence that the risk created by running the machinery without guarding had been identified as a risk but that it was necessary to watch the running of the belt after maintenance the jury may have formed the view that there was nothing else reasonably practicable that the Defendant employer could have done.
When considering whether employees or non-employees are exposed to a risk as a result of an employer's undertaking, risks can and will include "the risk of operatives, even experienced operatives, for some reason, good or bad, departing from defacto procedures in the vicinity of potentially dangerous machinery, especially in situations which are often repeated….". Hughes LJ R –v- Tangerine Confectionary Ltd  EWCA Crim 2015.
- Although not impossible, if an accident occurs it will be difficult for a Defendant to convince a Court that the risk was so negligible or unforeseeable that the Prosecution has failed in its initial burden of establishing a material risk.
- From a tactical perspective a Defendant may be reluctant to adduce evidence that it identified a risk and took steps to guard against it, if its main argument is that the risk was so trivial, so as not to require any or only minimal action. This is a high risk strategy. If the Court is satisfied that there was risk, there is no evidence before the Jury that the employer considered the risk and took all reasonable and practical steps to address it.
- The fact that a risk was identified and even that an accident occurred does not automatically mean that a defendant will be convicted if it can adduce evidence that it identified a risk but that it was not reasonably practicable to do any more than it actually did. An employer's risk assessment and evidence showing what it did to ameliorate risk as a result are important documents and actions in evidence to make out such a defence.