In the first of a new legal column, exclusively for SHP, Paul Verrico at Eversheds Sutherland unpicks the reverse burden of proof, a commonly misunderstood part of the Health and Safety at Work Act.
Paul Verrico, Global Head of Eversheds Sutherland’s EHS Team
Welcome to a regular monthly blog focusing on law, legislation and all matters legal in a safety context in Great Britain. My team and I have written extensively over the years for SHP and we’re honoured and delighted to be invited to partner as its legal ‘conduit’ for 2023.
Over the next 12 months, we will be writing about tales from the dock, with insights into the leading cases and what they mean for health and safety professionals as well as revisiting some first principles to remind ourselves of the obligations of employers in specific regulatory areas and how those extend to third parties.
Eversheds Sutherland is ranked Tier 1 in all of the legal publications (and has been for the last decade) for health and safety law, and we help clients after an incident, interfacing with regulators, stakeholders and those families affected by what’s happened, running matters through the criminal process and defending or mitigating as appropriate in courtroom situations.
We also provide strategic advice to large organisation on safety improvement, whether that be on business structure or deep diving performance to consider work as imagined versus work as done.
We write safety theories and speak at a wide range of industry events. The aim of this column is to share that learning with SHP Online’s audience – we will also take your questions and try and answer them the following month.
While we, as a business, operate internationally, the focus of this column will be on the UK, although we may draw on lessons from other jurisdictions to emphasise a point.
You’ll hear from different members of the team (most of us defend, but one or two also prosecute) and get a flavour of the challenges facing UK organisations in this critical area. While, we have to be mindful of Safety 1 thinking (after all, that is the foundation for the way health and safety is enforced in the UK) we spend a lot of time thinking through Safety 2 principles relating to behaviour change, learning teams and investigations.
On a personal level, I’m global head of the Eversheds Sutherland health and safety practice. I’ve been at Eversheds since 2004; my previous career was lecturing criminal law; before that, way back between in 1995-2000 I owned and operated a contract cleaning company, so I have some sympathy with small business owners who find the array of safety regulation somewhat bewildering!
Reverse burden of proof
In this, the first article in the series, I’d like to talk about the reverse burden of proof imposed by Section 40 of the Health and Safety at Work etc. Act 1974 (“HSWA”), as it’s widely misunderstood and sets a framework for everything which will follow.
As health and safety advisors are well aware, HSWA forms the foundation of safety law in this country, regardless of the regulator (HSE, ORR, Local Authority as examples) or the regulations (there are specific rail regulations, for instance, which only ORR prosecute, but which flow from HSWA).
The general duties under Section 2 (to employees) and Section 3 (to third parties) HSWA are caveated ‘so far as is reasonably practicable.’ When something goes wrong and people get hurt, our clients often ask us if they’ve satisfactorily discharged that burden – and we point them to Section 40 HSWA as the starting point to frame the question. I’ve set out the full text of Section 40 below:
Onus of proving limits of what is practicable etc.
In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact 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.’
Who proves what?
If enforcement of Section 2 or Section 3 HSWA is being prosecuted in court, the prosecution has to prove the ‘elements of the offence’ – in other words, who the defendant is, that the defendant is an employer, that an employee was exposed to risk or a third party was exposed to risk.
The burden then switches to the defence to show that it was not practicable to do more than was done. This has been tested in the Court of Appeal in the case of R v Janway Davies [2002] and has been ruled as ‘justified, necessary and proportionate… its purpose is to protect the health and safety of those affected. The reversal of the burden of proof takes into account the fact that duty holders are persons who have chosen to engage in work or commercial activity (probably for gain) and are in charge of it. They are not therefore unengaged or disinterested members of the public and in choosing to operate in a regulated sphere of activity they must be taken to have accepted the regulatory controls that go with it. The facts relied on in support of the defence should not be difficult to prove because they will be within the knowledge of the defendant. Whether the defendant should have done more will be judged objectively.’
What does this mean for you?
Matters of reasonable practicability are considered and decided by a jury – 12 persons who likely lack objective knowledge of safety management in the way that you do. If something bad did occur in your workplace or undertaking, would you feel able to justify the decisions taken – to train in a certain way, to risk assess, to induct, to set rules, to enforce rules, to manage fatigue, to fix guarding, to consider the material risks and to put an assurance framework in place to determine whether what you thought was being done was in fact being observed? Can you evidence that?
Those are crucial questions we ask following an incident and serve as a good reminder for you in your pre-accident thinking.
Paul Verrico is the Global Head of Eversheds Sutherland’s EHS Team, a Chartered Member of IOSH and a Fellow of the International Institute of Risk and Safety Management. You can email Paul at [email protected]
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In this, the first article in the series, I’d like to talk about the reverse burden of proof imposed by Section 40 of the Health and Safety at Work etc. Act 1974 (“HSWA”), as it’s widely misunderstood and sets a framework for everything which will follow.
Paul,
Thanks for this. Good article Just a comment and a question.
Hi David, thanks for this and good observations. The Prosecution has to evidence the legal burden – proving all the elements of the offence. Examples of facts that may need to be proved are: the identity of the defendant; that the defendant is an employer; that an employee was ‘at work’ at the time s/he was injured. The Prosecution thus proves that the defendant owes a duty, that the relevant duty of care has been breached and then the burden switches. HSWA offences are not based solely on an injury – that can be the catalyst for an investigation, but… Read more »
Great article
I look forward to the ‘next chapter’ thank you
Therein lies the chain of causation retrospectively dealt with in the 2011 Baker v Quantum Clothing & others and the HSE provides the retrospective evidence of omission to train DSE operators to make “reasonable adjustments” (1993 DSE Reg’s, 1998 PUWER Act) or in the case of preexisting disability “accommodations” to prevent over-exposure (ISO 45001, 45003) or mitigate eye-strain, binocular vision stress, eye and headaches, blurred or worse double vision, migraine, dizziness, nausea etc symptomatic of “Computer Vision Syndrome” resulting in myopic and asthenopic disease (2016 WHO ICD-10). https://www.hse.gov.uk/research/rrpdf/rr561.pdf Currently you still require a “diagnosis of DSE related vision-loss” to qualify… Read more »
Great question. The main issue is the desire or appetite of the regulator to enforce in such scenarios. In a world of increased austerity, DSE compliance tends to be low down the priority list, unfortunately.
For sure, back at the end of the last century, no one knew what to do about vision stress / screen interface ergonomics accepting they did introduce some sort of “Work Exposure Limits” suggesting an hour day and then with 20-20-20 rule now as average exposure including after work hours is something like ‘9’ hours a day most recent advice is taking a longer break off-screen after ‘4’ hours. However, the old-time “Time & Motions” studies had identified optimal periods between breaks was ’90’ minutes for both prevention of cognitive and physical fatigue impairing ongoing performance, with an hour for… Read more »
It’s an interesting summary. I wouldn’t summarize it as a ‘reverse’ burden of proof, though. As has been mentioned, both in the article and in the comments, the initial burden of proof is with the prosecution. The defendant’s case is essentially for mitigation. If the defendant makes a compelling case the penalty is reduced, potentially to zero. There is a danger of presenting the ‘reverse burden’ that organisations seek to defend their position in court, possibly by weight of evidence, rather than by designing effective occupational health systems and safety systems that prevent the accident and injury in the first… Read more »
John : that’s unfortunately not true. Asserting a duty holder has done all that is reasonably practicable and satisfying the reverse burden is a defence. This is criminal law; duty holders are guilty or not guilty of an offence. Mitigation comes after a duty holder is convicted.
Paul, the link to send you an email does not work.
I have a question related to reasonable and practicable.
Is it not both reasonable and practicable for an employer to alcohol breath test their HGV drivers? ( Random, For Cause, Suspicion, Whistlebowing.)
Many companies do not do this, and of course when a RTA occurs, hindsight may have suggested that a Drugs and Alcohol testing programme may have prevented the incident.
Great article
Really interesting article, looking forward to the next instalment. Thanks