How Health & Safety failings could lead to jail and why self-employed contractors, including trainers and instructors, need to take notice of this case:
How seriously should trainers and instructors take their obligations under Health and Safety?
The answer to this is extremely, especially where the activities undertaken are high-risk.
We are constantly hearing of cases in the press of health and safety breaches that have led to a serious injury – or in some tragic cases, death – and, subsequently, employers or contractors have been convicted in court for offences under Health & Safety legislation (including the Health and Safety at Work Act 1974 and the Corporate Manslaughter and Corporate Homicide Act 2007) which have led to some very hefty sentences being imposed.
A recent case in the UK (reported by the US publication OHS Online on 12th April 2016, and which you can read here) was particularly tragic in that negligence on the part of contractor led to the tragic death of a worker who was buried in a trench that collapsed on him.
The incident occurred in June 2012 in Pembrokeshire, Wales, when the employee had entered the trench (which was constructed at a Housing Trust development) in order to remove a clod of earth. However, the recently-excavated trench collapsed on him, causing death by traumatic asphyxia. It transpired during the court case that both the housing association and the contractor’s employees had raised concerns about this some weeks before the incident.
The contractor – William Ryan Evans – pleaded guilty to breaching his duty of care, which is required under Section 2 of the Health and Safety at Work Act 1974. As a result, he received a six-month custodial sentence.
The case was investigated and prosecuted by the Health and Safety Executive, whose findings indicated a number of shortcomings on the part of the contractor, including failing to undertake a ‘suitable and sufficient risk assessment’, as well as not providing appropriate ‘equipment or safe working methods’ for employees along with proper training and adequate supervision. (All these are required by Section 3(1) of the Management of Health and Safety at Work Regulations 1999 and Section 2(2) of the Health and Safety at Work Act 1974.)
What are the implications of this?
Well, in light of the recent tightening of sentences in relation to Health & Safety offences, this is certainly something that all employers and self-employed contractors and freelancers should take note of. Although the circumstances of this case are on the more extreme end insomuch as a tragic (and wholly avoidable) fatality took place, it can only serve to illustrate how failure to comply with the basic duty of care owed could lead to a custodial sentence. This means that having proper Health and Safety policies and procedures in place, undertaking suitable and sufficient risk assessments, ensuring that the correct equipment is provided and that any staff are correctly trained and supervised is (amongst other things) absolutely essential.
This just doesn’t relate to employees alone (although its also worth adding here that the concept of ‘Vicarious Liability‘ on the part of employers with regards to the actions of their employees and others who might be classed as employees, such as sub-contractors, has been extended further as a result of two cases recently heard by the Supreme Court. To find out more about this, read the recent blog post by Mark Dawes of NFPS here.)
It also applies equally to the duty of care owed to others under Section 3 of the Health and Safety at Work Act 1974, in other words persons not in the employment of the employer but who are connected to the employer’s business such as customers, service-users etc. (Indeed, despite the recent deregulation legislation in relation to self-employed persons, this still very much applies to the self-employed, especially where the risk remains high.)
So, as it currently stands, it is absolutely essential that self-employed contractors undertake their due-diligence in relation to any activities that may affect others (the ‘neighbour’ concept as referred to by Lord Atkin in the case of Donoghue V Stevenson ), especially where the risk is high. The liability certainly cannot be transferred to the commissioning organisation, nor vice-versa (something known as a ‘non-delegable duty of care.’)
This certainly applies to trainers and instructors who provide training services in such areas as physical skills, and it appears that there are still many providers out there who may be risking legal repercussions as a result of some-one either being injured, or possibly even killed, either during training or as a result of the unsuitability of the training they have undertaken.
The old saying ‘Forewarned is Forearmed’ still holds true and there can really be no excuse for not undertaking your ‘due-diligence’ when it comes to complying with the legal requirement known as ‘duty of care.’ However, it still seems to be that nothing is done until somebody actually does get killed. Cases such as this can only serve as a wake-up call!
References and Links:
https://youtu.be/YRPd4nkE4fA (for information on S3(1) MHASAW regs 1999 and how to undertake a risk assessment.)
(If you wish to know more about why Health and Safety matters when it comes to the use of force and training related to its provision, then it’s worth attending the Annual NFPS Use of Force Seminar in June 2016. Find out more here.)