Do companies have a duty to warn others in health and safety criminal law?
Lawyer Dr. Simon Joyston-Bechal from Turnstone Law started his presentation, in the second part of his Safety & Health Expo legal masterclasses, by asking the audience if a company has a duty to warn others if it was aware of an issue, even if it was more than six years ago.
“For example, you might have been involved in chain or a construction project, where you have been supplying or using bolts, and those bolts carry something which could cause an injury.
“And you have found out there was a failure in those bolts and a piece of the construction failed. You may have used those bolts in dozens of different projects. The question is whether people might today be at risk, because of something you know about these bolts. Do you have a duty to warn other people?”
Dr. Joyston-Bechal said there was a question about how “deep and how far should you dig” back to find such projects, and how much should you spend to find out?
He explained that the duty to warn was created by general duties under the Health and Safety at Work Act.
“Your duty today is to do whatever would be regarded by a jury as reasonably practicable to look after the safety of those impacted by your organisation. In my view, it must be irrefutably true to dig deep and as far back as reasonably practicable. You must spend as much as reasonably practicable to find out, and you must tell whatever to whoever as necessary, so far as is reasonably practicable.”
In the second part of his presentation, Dr. Joyston-Bechal asked if a company can escape automatic liability for a breach by an employee, which has been exposed the company.
“If you ask most health and safety inspectors, I suspect they will say a company is automatically liable,” he told the event. “The interesting question is where are the boundaries set? In the civil law of negligence, there is vicarious liability for the acts of an employee, unless the employee is on ‘frolics on their own’.”
But he added that criminal law does not follow the same test.
“The duties under section two and three under the Health and Safety at Work Act are not absolute. They are qualified under reasonable practicability. The employer will be in breach unless the employer can show that it was not really practicable to have done more than what was done.”
He quoted the example of a supermarket chain which had been prosecuted in the 1990s following an incident in one of its branches.
“In one of the branches there was a lift which had a faulty electrical contact. The staff and the manager of the store knew there was a switch and if you flicked the switch, you could manually release the jam and the lift would operate again until next time.
“The store manager was in the habit of going into the control room and flicking the switch every time the lift stopped working. None of this was known or authorised by head office,” he explained.
“The store manager was not on duty one day. A duty manager went into the lift control room to lift the switch, but he fell through a trap door into the lift shaft and to his death.”
He said the case went to the Court of Appeal, where the company argued the store manager was not senior management and had been specifically contravening what he had been told to do.
“The Court said it was the company’s own liability, there was no clear legal distinction between management and other employees. Junior employees at least to the level of store managers and upheld the conviction,” said Dr. Jotston-Bechal.
“Prosecutors will point to non-delegable duties. They will argue a company is liable for failing employees, certainly at store manager level. I see that routinely in cases, that the prosecutors assume at the end of it that if your employee has done wrong, you have done wrong. I don’t think you are liable to that degree.”
HSE interview requests
In the final part of his legal masterclass, he talked about responding to HSE interview requests.
He said it was important to never be interviewed alone or let staff be interviewed alone, and that people should also remember they have a right to a nominated representative.
He also recommended training people before they go into statements, ask for a list of questions in advance and to bring copies of any relevant documents to the interview.
Afterwards, he added you should always ask for a copy of the witness statement and the interview.
In his first legal masterclass at Safety & Health Expo, Dr. Joyston-Bechal talked about whether health and safety criminal law duties can in some cases be delegated to contractors and the pitfalls of investigating incidents and understanding the benefits of using privilege in any documents.