Health and safety criminal law duties can in some cases be delegated to contractors, according to a leading lawyer
Speaking at Safety & Health Expo 2019 in London, Dr. Simon Joyston-Bechal from Turnstone Law, said while delegation is hard, it does not mean ‘you should be automatically liable if your contractor fails’.
“If you think about what the law says; if you are going to be prosecuted, you will be prosecuted because you have not done everything that is reasonably practicable,” he told delegates as part of his legal masterclass for health and safety professionals.
“If you have done everything that is reasonably practicable in the way in which you have engaged your contractors, then what can you be prosecuted for? It should not be an automatic prosecution, just because they got it wrong, so you got it wrong.
“It is tough, because doing everything reasonably practicable with contractors requires you do have done everything practicable to select them, to instruct them and provide them with information.
“The point I want to make is that if you do all of those things to the standard of everything reasonably practicable, then you have delegated it and you should not be prosecuted,” added Dr. Joyston-Bechal.
The benefits of using privilege
The masterclass also examined the pitfalls of investigating incidents and understanding the benefits of using privilege in any documents.
He explained that privilege is a special right to withhold evidence or documents from a court, a prosecutor or a third party.
“It’s special but it only applies in certain circumstances,” he explained. “You have to earn the right. Litigation must have started or be reasonably contemplated.
“If you create an investigation report for the dominant purpose of an anticipated litigation, you are ticking the boxes for privilege.”
He added that privileged documents do not have to be disclosed to authorities, the HSE and added that it is also important when writing investigation reports to separate out facts, conclusions and remedial actions.
Dr. Joyston-Bechal also spoke about the importance of challenging inappropriate enforcement notices and he reminded the audience that all notices have a strict 21-day deadline.
“If the notice is a fair cop, then there’s no discussion,” he said. “For the sake of argument, four out of five notices are a fair cop and you need to get things sorted. But one in five notices, in my experience will leave a bad taste in your mouth. You will look at it and think ‘that’s wrong, that’s not right’.
“Some types of notice that will require a business to do something that your business simply can’t do. In those cases, don’t just wait until day 20. If you receive a notice.”
He added it is possible to raise a query to a notice within 21 days of the invoice date, which he added was a “simple process” with no cost at that stage.
The second part of this legal masterclass for health and safety professionals will be published next Wednesday.
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