Prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007 have been gathering pace.
Last week Huntley Mount Engineering Ltd (“Huntley Mount”) was sentenced for corporate manslaughter following the death of Cameron Minshull. Mr Minshull was completing an apprenticeship at Huntley Mount when he suffered a fatal injury after becoming entangled in a lathe on 8 January 2013.
Huntley Mount was fined £150,000 following a guilty plea. Zaffar Hussain, the director of Huntley Mount, was imprisoned for breaches of both section 2 and section 37 of the Health and Safety at Work etc. Act 1974 (“HSWA”). Additionally, his son, Akbar Hussain, a supervisor at Huntley Mount, was sentenced for a breach of section 7 of HSWA. Both pleaded guilty to the respective charges.
However, it is the prosecution of Lime People Training Solutions Ltd (“Lime People”) which may be of particular interest to readers who are employed by educational institutions. Lime People was the recruitment agency which organised the placement of Mr Minshull with Huntley Mount. It was prosecuted for a breach of section 3 of HSWA. This prosecution is considered in more detail below.
An offence under section 3 is committed where an employer conducts their undertaking in such a way that they expose those, not in their employment, to risks to their health and safety. This can include contractors, visitors and students. Such a duty is not absolute, what must be demonstrated is that what was done was all that was reasonably practicable. The duty is on the employer to demonstrate that they have fulfilled that duty – what we lawyers call a ‘reverse burden of proof.’
Lime People, in administration, was not present in court and was subsequently found guilty at trial. During the trial it was alleged that the placement of Mr Minshull was accelerated in order to receive government funding. It was also alleged that proper checks were not undertaken, thereby exposing Mr Minshull to risk.
Despite going into liquidation, Lime People was sentenced to a fine of £75,000 and ordered to pay £25,000 in Prosecution costs.
Considerations for Placement providers
Where educational institutions, including schools, further and higher education providers, are organising placements, such as work experience or sandwich courses, they could find themselves exposed if they do not take sufficient steps to ensure student’s safety. The level of involvement of any organisation in arranging the placement will in part determine what steps they should take. The obligations will be greatest for those further education colleges which operate Apprenticeship Training Agencies or otherwise directly employ apprentices who are then seconded on placement to local businesses or other organisations. Both the Association of Colleges and UCEA issue guidance on what duty holders can do.
The following are just a number of potential considerations and steps that could be taken:
Know Your Provider
Conduct due diligence of the proposed placement provider. What due diligence is proportionate will depend on a range of factors, but may encompass a site visit and a review of their health and safety history. For instance, have they been in receipt of any Improvement or Prohibition Notices or convictions. Consideration could be given to compiling an approved placement provider list. Undertaking due diligence about providers helps to ensure that any concerns are identified and can be acted on as appropriate.
Where a placement provider is used ensure that feedback is taken from students about their experience. Within this feedback cover matters such as health and safety on site; training and inductions and the provision of suitable personal protective equipment as required. In the case of Huntley Mount, it was recognised that there was a failure to train and supervise employees. Additionally, the overalls provided to Mr Minshull, which became trapped in the lathe, were described as being oversized. Feedback may help determine immediate changes which can be made to ensure that any placement runs safely, whether a placement should be terminated early or whether a placement provider should not be recommended in future.
Ensure that records for each placement provider are kept up to date and ideally centralised. If different departments of an organisation are using the same placement provider information should be shared between them, especially if there are any concerns.
The Potential Consequences
The consequences of breaching health and safety legislation can be far reaching. Whilst this case tragically led to the death of Mr Minshull, offences under health and safety legislation can be committed where no injury has been suffered.
Moreover, the importance of understanding health and safety has never been more key. The Sentencing Council recently consulted on new Sentencing Guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences. These Guidelines would significantly increase the level of fines for health and safety offences in most cases. One of the proposed criteria to determine the level of fine is to consider the turnover of the organisation. A large organisation is one with turnover of £50 million and over which would include many universities and a few colleges.
The proposed starting point for imposing a fine on a large organisation where an accident is determined to be in harm category 1, which would encompass fatal accidents in which the organisation is found to have very high culpability would be a fine of £4,000,000.
Safety is increasingly coming under scrutiny. It is crucial that organisations are fully aware of their obligations and the compliance measures that have been taken. If there are any areas which have not been considered, ensure that these are addressed as soon as possible.
We understand that the HSE is updating their apprentices webpages in anticipation of a renewed focus on apprentice health and safety once Huntley Engineering came to trial. The HSE is aiming to launch the revised pages shortly. The revised guidance will explain how these duties can be discharged by colleges and universities, and will cover different types of apprenticeship training arrangements.