Consultants should always consider the question ‘what might I be in the frame for?’ in order to avoid prosecution as individuals under health and safety law, IOSH conference delegates were advised today (27 February).
Solicitor Darren Smith, partner in Hill Hofstetter Ltd, told a packed seminar session to “forget corporate manslaughter – your real worry should be individual liability”. Citing a raft of recent cases taken under sections 2(1) and 3(1) of the Health and Safety at Work, etc. Act 1974, Darren said these sections are increasingly being used to prosecute individuals – employers and consultants – and not just companies.
But it is under sections 7, 36 and 37 that most cases against individuals are taken. Said Darren: “With regard to section 7 – duties on employees – a scan through the HSE database suggests there has been a reduction in the number of prosecutions taken under it in the last few years. On the other hand, section 36 is becoming more commonly used.”
He gave the example of R v Atterby, which involved the prosecution of a health and safety consultant to a quarrying company. He had failed to identify a significant silica-dust hazard, with the result that he was prosecuted, but the company was also prosecuted for his failure. A case of “failure of the employee, conviction of the manager”, as Darren explained.
He suggested that consultants really need to consider what the impact of prosecution could mean to them and their employability, and ability to offer their services on the market.
Section 37, too, covers a wide range of individuals, Darren continued, and the number of cases taken under it has soared by 400 per cent in the last five years. He said: “In 2010/2011, there were 43 section-7 prosecutions, 35 of which resulted in a conviction. That is a phenomenally high conviction rate for the UK courts.”
What is noteworthy about those cases, he pointed out, is the fact that 21 of them did not actually involve an incident, showing that the HSE is increasingly willing to act not just where there has been a fatality or injury.
Darren went on to address the rather confusing issue of vicarious liability – something, he said, that has been created by the courts and not by the legislature. It describes situations in which liability is imposed on – often innocent – employers because of the actions of an employee.
He explained: “Because it has been created by the courts and is developed on a case-by-case basis, it is a bit of a legal fudge. The test is: how closely is the act connected with the perpetrator’s (employee’s) employment? It has become more significant recently because of all the care-home and church abuse cases, as well as – dare I say it – the Jimmy Saville situation.”
There is a lot of discussion currently about extending the concept of vicarious liability to work relationships involving the self-employed, agency workers and consultants. Said Darren: “Can these parties be held liable for something a employer has done? We don’t know yet, but it could be possible.”
Incident investigation is another area where individuals can come a cropper. In many cases, the Police are the first on the scene and, generally, they will not have much experience in health and safety. Darren explained: “Because of the way they are used to operating, they will focus on the actions of individuals, asking ‘what did you do?’ You need to consider how you would deal with questions like this.”
With regard to internal investigations, everything that comes out as a result is disclosable, unless they are subject to legal professional privilege. In the case of voluntary interviews, you can, said Darren, incriminate yourself and others, so do be mindful of that, he warned.
He concluded by summing up for individual consultants the key things for them to consider when taking on work:
It’s what we’ve come to xpect from IOSH, state the obvious as if it’s news.
If as a consultant you need to be made aware of the bullet points above?
I would suggest that you are in the wrong game.
When with the HSE I interviewed many consultants and was increasingly disturbed by the lack of competence and due dilligence observied. The lack of conviction showed in gaining compliance by the duty holder defied belief and the excuses given were frankly laughable.
Admitedly I only have experience of Construction, but given the levity of failure, I was truely shocked
Not sure at all re the Section 36 assertions. R v Atterby is reported as a Control of Substances Hazardous to Health Regs 2002 case and is from 2007.