Negligent Worker or Directors Fault?

Were these negligent workers or was the company director at fault?

It may shock you to read about the incompetence of these workers (Full Health and Safety Executive (HSE) Press release link below), to then find out that it wasn’t actually a negligent worker which was prosecuted, it was the company.

It was the company which was found in breach of health and safety legislation, as they failed to take effective measures to ensure the health and safety of their employees.

Incident summary: Three workers were engaged with emptying plastic bins, which needed to be raised to a height by a forklift truck (FLT) and tipped into a skip.
When one of the bins became trapped, the driver of the forklift climbed on top of the skip to free the bin. The other two employees remained standing at either side of the FLT, while a further employee reversed the FLT to aid the release of the bin.

However, after reversing, the FLT then moved forward, crashing into the skip causing the employee on the top of the skip to fall. One of th workers standing at the side became impaled by her right arm by the FLT fork.

The other two workers sustained serious fractures that required hospital treatment.

You may feel the activity was a comedy of errors, others will read the incident summary and feel sympathy for the workers tasked with working unsafely.

The outcome of the case which was heard at Manchester Magistrates Court, was the company failed to implement a safe system of work and provide adequate instruction and training to their employees.

The company pleaded guilty the breaching sections 2(1) and 3(1) of the Health and Safety at Work etc. Act 1974. The company was fined £20,000.

Speaking after the hearing,

HSE inspector said: “Those in control of work have a responsibility to provide the necessary information, instruction and training to their workers in order to carry out work safely.”

Working Safe

An employee can only complete a task safely if they know what safe is.

If, like this company director, you haven’t provided:

• Any effective measures to reduce harm,
• A safe system of work,
• Adequate instruction and training.

Then you are also falling below the required health and safety standards and at risk of being involved in a lengthy civil and or legal claim.

Because this company wasn’t able to provide any evidence of compliance with the relevant health and safety standards, they pleaded guilty.

How can you prove a worker was negligent – failure to use car

The workers in this February 2021 prosecution were obviously working unsafely, they failed to use care while undertaking the bin emptying task.

But the company was unable to prove the incident was caused by a negligent worker, as they had:

• Not provided suitable and sufficient training,
• Not implemented a safe system of work and,
• Not provided adequate instruction.

It is not enough to simply assume your employees and contractors are working safely, it is not acceptable to allow unsafe working practices to continue and it is seen as an aggravating factor cost-cutting at the expense of safety.

You need to know your legal obligations – to create a safe standard

Our Founder Karl Spencer spends a lot of time talking with Directors and Board Members to highlight their roles and responsibilities under Workplace Health and Safety.

This short video completed a few months ago while Karl was speaking to a large organisation, highlights failures companies have in meeting the relevant standards.

Karl takes time to go through UK health and safety legislation which governs the health, safety and welfare of persons while at work.

The case included in the video – albeit not the case relating to the FLT crushing injury referenced above, is no different. They both failed to provide suitable and sufficient proof they had done So Far As Is Reasonably Practicable.

How the FLT crushing fine was worked out?

For organisations found guilty of breaching the duty of employer towards employees and non-employees, there is the ‘Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline’.

These Sentencing Guidelines apply structure, ranges and starting points appropriate to each type of offence.

The Court will determine an offence category based on Culpability and Harm Factors. The Court will balance these factors to reach a fair assessment of the offender’s culpability:

• Culpability range:
  • Very high
  • High
  • Medium
  • Low
• Harm risked: The offence is in concerned with failures to manage risk and does not need any actual proof that the offence caused any actual harm:
  • The seriousness of harm risked either Level A, B and C. Cross-referenced with,
    • High likelihood of harm
    • Medium likelihood of harm
    • Low likelihood of harm

The Court is also required to focus on the organisation’s financial turnover. The offender is expected to provide comprehensive accounts for the last three years, to enable the court to make an accurate assessment of its financial status.

The ranges of turnover – Larger turnover increases the fine.

• Large: £50 million and over.
• Medium: Between £10 million and £50 million.
• Small: Between £2 million and £10 million.
• Micro: Not more than £2 million.

Other factors reducing seriousness are taken into account as well as factors opposite which increase seriousness.

The court should also consider any wider impacts of the fine within the organisation, and can reduce the fine for guilty pleas.

Summary:

• Did the director/duty holder have knowledge of the tasks being completed could cause harm?
  • Yes, Culpability range set.
• What was the likelihood of harm – Not necessarily actual harm caused:
  • Harm risked category set.
• Financial turnover:
  • Range set based on 3-years financial accounts.
• Other factors considered for increasing or decreasing the fine.

Offence range: £50 fine – £10 million fine.

Remember, if you can prove the worker was negligent by having suitable and sufficient standards in place, it could be the worker who is investigated for failing to take reasonable care for the heal;th and safety of himself and of other persons who may be affected by his acts or omission while at work.

Read more on the introduction of the Sentencing Guidelines in this article from 2017.

Helping you both prevent and protect.

Safety PAL (PLAN ACT LEARN) is structured in such a way, Company Directors have suitable and sufficient proof to show them and the body corporate (Company) have done So Far As Is Reasonably Practicable.

Furthermore, Safety PAL feels companies shouldn’t have to choose (or risk) employees health and wellbeing over the costs health and safety has on their business. Both can be easily managed and effectively implemented to help workers stay safe while at work, and to protect the company from prosecution.

Take a look at what others say about Safety PAL.

“Although we have only scratched the surface on the capabilities of Safety PAL, it very quickly improved the delivery of H&S across the business. It helped support the successful implementation of ISO45001 by providing evidence to the auditors of our ability to: validate our legal compliance, provide an accurate history of our employees’ training and competencies, demonstrate the distribution of relevant documentation to individuals or groups allowing them to indicate their understanding or requirement for further training, and all correspondence is logged and time and date stamped, providing a solid audible document trail.
Paul Luker, Spectro Jet-Care 

We hope you have enjoyed reading this article, even took something away to help improve your businesses prevention and protection.

Please get in touch with us on any health and safety matter you have, we would love to hear from you.