Legal: Roofers fractured skull sets a costly example

The first successful prosecution under the Health and Safety (Offences) Act 2008 saw a roofing firm fined £23,000 after an employee fractured his skull in a fall. The legislation, which came into effect in January, was hailed as giving health and safety the “bite” of its counterparts in other areas of law, such as food safety. Campaigners said it would punish the criminally negligent who put life and limb in danger in the workplace, deter those who are tempted to cut costs by breaking the health and safety law, and render faster and more efficient justice.

The duties owed by employers and employees under health and safety law have not changed. The provisions of the 1974 Health and Safety at Work etc Act (HSWA) and the regulations made under it remain intact, but the consequences of breaching the law are greater than ever:

• the maximum fine that can be imposed by the lower courts (ie, magistrates’ court) is raised from £5000 to £20,000;
• certain offences previously heard only in the lower courts are now triable in higher courts too; and
• imprisonment is now a potential punishment for breaches by individuals.

INDIVIDUAL LIABILITY

Unlike offences under the Corporate Manslaughter and Corporate Homicide Act 2007, health and safety law offences can be committed by individuals as well as corporate entities.

Under section 37 of the HSWA, where a firm is found guilty of health and safety offences, an individual can be found similarly guilty if it can be shown that the offences were committed with the individual’s consent, connivance or neglect. This individual liability applies to directors, managers and secretaries and those with similar responsibilities. Also, section 7 of the HSWA embodies the principle that employees have a duty to look after themselves and those they work with. This duty applies equally from the directors to the newest apprentice.

A breach of either of the above statutory provisions now sees individuals facing the possibility of incarceration.

WILL THE ACT BE EFFECTIVE?

The legislation was not retrospective and applies only to incidents occurring after January 16, 2009. It will be some time before its true impact is known but prosecutions are now expected to emerge from the courts on a more frequent basis.

The first successful prosecution involved 1st Response Roofing of West Yorkshire, which was fined a total of £23,000 by magistrates after a worker fell through a skylight. He hit a tower scaffold before hitting his head on a metal vehicle lift and landing on a concrete floor.

The HSE found that there were no coverings on the roof skylights to prevent the fall. Also, the company had told its staff to erect the tower scaffold when they were not trained to do so. As a result, no handrail was installed and the platform was too low to break the employee’s fall.

The company pleaded guilty to three safety breaches. The total fine was substantially higher than in previous cases because two of the three breaches continued on the day after the roofer suffered his fall and, crucially, this was after the Act had come into force. The magistrates were therefore able to use their powers to issue the higher fines.

FIRST RESPONSE

What should a company’s response be to the Act? While it does not impose any additional duties, it does considerably raise the stakes of non-compliance with health and safety law.

Also, remember that prosecutions can be brought even when there is no death or injury – a mere exposure to risk is enough. It is vital, then, that a company has effective health and safety procedures in place and individuals have a clear understanding of the duties placed on them in order to, as far as possible, reduce the risk of an offence.