In a case that demonstrates that health and safety professionals are not immune to prosecution, a health and safety manager has lost his appeal against safety charges brought against him following a flashover incident.
On 11 June, Alan Ager, safety manager for Chelmsford-based firm Power Testing Ltd, lost his appeal at Southwark Crown Court against his conviction for breaching s2(1) of the HSWA 1974 (by virtue of s37), reg. 3 of the MHSWR 1999, and reg. 14 of the Electricity at Work Regulations 1989. Mr Ager was fined £2500 and ordered to pay £5500 in costs. He was initially convicted of the charges following a trial at Westminster Magistrates’ Court in November 2009.
The charges related to a flashover incident at an office building in Shoe Lane, central London on 1 February 2007. Two technicians were installing a capacitor to help reduce energy consumption at the site. One of the workers was fitting cables in the back of the capacitor, which was positioned above a number of live conductors. The cables came into contact with one of the conductors and caused a flashover. The worker suffered burns to his face and upper body, injuries that have prevented him from returning to work.
The court heard that Mr Ager had overall responsibility for ensuring that risk assessments were conducted, and for advising the company directors on safety matters and drawing up safety procedures. However, Mr Ager failed to carry out a suitable assessment of the risks involved in the work, and he didn’t enquire if it was possible for the building managers to fully isolate all the conductors.
Mr Ager, an IOSH member, told SHP that he felt he had taken sufficient steps to protect workers. He said: “I deeply regret the injuries that were sustained as a result of this incident. I felt that my risk assessment was sufficient and correct, and I had discussed it with other workers at the site.
“Following the incident, we have introduced a point-of-work risk assessment form, which must be completed before the start of each shift. We also now ensure that engineers wear flame-retardant overalls when working in switch rooms.”
City of London Corporation environmental health officer, Michelle Vancayseele, who investigated the case, said: “In this case, employees were merely instructed not to enter the live compartment yet there was a high risk of accidental contact with live electrical conductors involved in the work.
“This highlights the duties and responsibilities of safety personnel in ensuring that the precautions identified are able to protect employees from harm. Full electrical isolation would have removed the risk, or, alternatively, installation of a non-conductive screen separating workers from the live compartment, as well as measures to minimise swarf collecting in the panel, would have reduced the risk to an acceptable level.”
She continued: “Mr Ager was very experienced in electrical work, as well as being in a position of responsibility and trust. Staff working under his direction justifiably relied on his advice to ensure their safety – something which he clearly failed to do.
“It is very rare to bring a prosecution against an individual but it was deemed that if you cannot rely on the health and safety manager of a company to protect employees from harm, who can you rely on? For this reason, health and safety professionals are not immune to prosecution and must ensure that they have full regard to the law and associated HSE guidance on safe electrical work.”
In relation to the same incident, Power Testing Ltd pleaded guilty on 12 March 2009 to breaches of section 2(1) of the HSWA 1974, and reg. 14 of the Electricity at Work Regulations 1989, for among other things failing to isolate the conductor, and was fined a total of £25,000.
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I think the key phrase here is “Staff working under his direction.” If he was in control of the work, and the workers then he is responsible for their safety. Rather than saying perhaps we should delegate risk assessments to other less qualified (in risk assessment) people, we should be saying that we’ll do the risk assessments with consultation and input from the appropriate parties, but we won’t control any workers.
Spotting a shortcoming in a risk assessment is easy in hindsight, not so easy to spot in advance of the work, which is why we H&S specialists working with the people who control the work and the people who do the work must be thorough and identify all the hazards. This unfortunate fellow missed hazard which he should have been aware of.
Interestingly if he hadn’t done the risk assessment at all, he possibly wouldn’t have been prosecuted since that would be a company failure rather than an individual failure.
Lessons from this prosecution are:-
always be through,
always document your recommendations,
always get someone else to manage the actual task,
and err on the side of caution.
I didn’t say that I agree with prosecuting the individual, I don’t see how such a prosecution could be construed as being in the public interest.
The prosecution of the company would address the risk assessment not being suitable (not covering all the hazards) and the competence of the person doing the risk assessment. These are both company failures.
What does prosecution of the individual achieve… will he be more competent as a result ? will he be better resourced ?
I think the individual prosecution propogates fear of prosecution for all H&S staff, makes the EHO look like jobsworths (which in my humble opinion some are), and is a needless waste of money and time for the legal profession.
Please only prosecute people if it is in the public interest – in other words it prevents the same thing happening again.
The company were prosecuted for reg 3 of MHSWR – Risk assessment.
The individual cannot be prosecuted under section 37 of HASWA unless the company is found guilty of the same offence.
True. We all make mistakes sometimes ,even when we are experienced and doing our best.
Prosecuting an individual in this type of case seems to be something that local authorities do rather more readily than the HSE?
Maybe this is the type of thing that Lord Young will consider in his review for the new government.
At first read this looks dire for H&S Managers, Advisors, etc, but on a closer read it seems that Mr Ager had taken on a greater personal responsibility for the conduct of risk assessments coupled with (it seems) an implied electrical competence which should have perhaps made him competent to do this in this in this case. He seems to have taken on almost a line management function, which let’s face it, even in large companies there is a tendency for managers to see safety as being totally down to the H&S Manager and no-one else. Think this is an important reminder to us professionals.
“Dammed if you do and dammed if you don’t” Should we Safety Managers be ensuring others do the risk assessment, I would have said so in this case – competence comes to mind.This is a significant risk activity that should have been assessed by a qualified electrician/Engineering manager, however it does state that the defendant was experienced.
Our role really is to give sound advice and know our limitations.
The HSE really flexed their muscles, prosecuting the company should have been enough. It is not the H&S Mgr responsibility to protect employees form harm it is the employers responsibility – We are in fact H&S Advisors
I really feel for Mr Agar especially when his total financial penalty is 25% of what the company was fined.
Why was no other manager prosecuted?
As a company rule Balfour Beatty WorkPlace do not permit ‘live working’! At this time I have a number of similar projects installing power factor correction units at separate buildings and a ‘full electrical power shutdown’ is required at each building.
Had this simple rule been adhered to by Mr Agar he would not be in the position that he now finds himself in (being personally liable for all costs!). In certain respects Mr Agar is fortunate not to find himself facing manslaughter charges.
Regards
Granville
The reporting of this case leaves me confused. Mr Ager seems to have been performing two distinct roles, that of the supervising engineer (see Peter Gotch’s note) and also safety adviser to the business as a whole. It seems very curious that he was prosecuted in relation to risk assessments when the employer wasn’t. But we know very little about the exact circumstances or the company itself so we should perhaps refrain from too much comment other than to note these points:
1) The person in control of a job like this is, rightly, in the pole position and it behoves all of us who lay claim to being H&S professionals to be clear in our own minds how we give them best support;
2) This case and its reporting continues the pattern of failure to understand where risk assessment ends and other parts of safety management (like isolation procedures) take over;
3) Prosecution of individuals can have counter-productive effects (PG – remember JR’s case at Ravenscraig?) by sending out the wrong message, in this case to H&S professionals that simply putting your name to a risk assessment makes you liable for any and all accidents that may be able to be linked back to it.
Slightly confused here. The article says that Mr Agar was responsible for ensuring that risk assessments were conducted. Later it Mr Agar is quoted as referring to his risk assessment. So I presume he was actually writing risk assessments for staff which was going beyond just making sure they are done. Perhaps this is a warning to the rest of us to avoid writing risk assessments for staff/managers but instead just advising them on the how to write one?
Google search finds company website which would suggest that this defendant’s primarily role is as Chief Engineer.
Amazing how this guy can still claim his risk assessment was adequate when it clearly wasn’t.
my sympathy to a fellow colleague in this safety industry, doing his best, I hope ms Michelle Vancayseele is proud of herself, the prosecution of the comapny was sufficient.
I think you fill find that this jobsworth works for env. health not HSE, who may just have been more sensitive to the issues, and not gone after extra brownie points with a personal prosecution
At last some sense has crept back into this discussion and we’ve moved away from the rather tedious invective – “jobsworth”,how original?! – against the EHO involved.
What the latter readers and contributors have fortunately spotted are the key phrases in the article:-
“Mr Ager WAS VERY EXPERIENCED IN ELECTRICAL WORK, as well as being in a position of responsibility and trust. STAFF WORKING UNDER HIS DIRECTION JUSTIFIABLY RELIED ON HIS ADVICE TO ENSURE THEIR SAFETY – something which he clearly failed to do.”
He was in fact Chief Engineer AND Health & Safety Manager – thank you for Googling Peter Gotch.
No regulator takes any prosecution lightly – and indeed I have some sympathy with the view that if it gets as far as prosecution, then maybe the regulator has failed? – but there is so much Government advice and guidance to refer to that it never a decision taken lightly or easily.
And when considering the prosecution of an individual, the guidance is even more stringent hence the rarity of such cases. But rarity doesn’t mean unjustified.