“HEALTH & SAFETY LAW JUST AIN’T FAIR!”

Not the most grammatical of headlines, I grant you, but the sentiment is one that many directors and managers might feel is well justified – especially if they’ve been on the receiving end of a health & safety prosecution.

Is their sentiment reasonable, or is it just a case of directors and managers expressing their resentment at having been caught out? Let’s look at the facts (and, just to be clear, I’m speaking here as a chartered safety practitioner and not as a lawyer).

The first thing to bear in mind is that the law treats breaches of health & safety legislation as criminal matters, as issues which are so serious as to justify punishment by either a fine or imprisonment (and sometimes both). Providing effective health & safety management is a clear legal requirement – not an optional extra.

UK criminal law normally works on the basis that the accused party must be assumed innocent until the prosecution proves beyond all reasonable doubt that they are guilty. Unfortunately for business directors and managers this situation doesn’t always apply in health & safety cases – even though these offences can be punished severely.

The problem lies with the wording of the Health & Safety at Work Act 1974, the underpinning legislation supporting health & safety in the UK.

The Act requires employers to do all “so far as reasonably practicable” to ensure the safety of their employees in the workplace. Note that this obligation represents a strict legal requirement in that the Act says that “It shall be the duty of every employer to ensure …“

The Act also says that, should there be a dispute over whether the employer did all that was reasonably practicable to keep their employees safe, it will fall to the employer to prove that he had done all that he could. It is not necessary for the prosecution to prove that he fell short of the mark.

These may seem arcane points of boring law, but when taken together they form an explosive mixture.

Put simply, if there is an accident in the workplace resulting in an employee being injured then there is a clear case for saying that the employer has failed to take care of that employee’s safety. In order to defend himself against this charge the employer must actually prove his own innocence – he cannot just rely on challenging the prosecution case.

With all the above in mind it quickly becomes clear just why it’s so important for employers to plan in detail the management of their competent accident investigations – and draw up these plans before the accident happens.

Leave it all to chance, rely on a strategy of “it’ll be alright on the night”, and life could get both unpleasant and expensive!