A frequent question asked by employers is how far they have to go to guard against the risks to safety of an employee doing something they know is obviously unsafe.
Court Of Appeal Case
The recent Court of Appeal case Polyflor Ltd v HSE [2014] EWCA Crim 1522 reaffirms that an employer must assess and control the risks to safety of a careless or even a grossly careless employee.
Facts
In this case, the inured party fractured his arm whilst clearing a blockage on a roller of a granulator infeed conveyor used to assist with recycling vinyl material. In order to check the adjustments made, it was considered necessary to remove the guards covering the rollers but to allow the tracking to be checked, the machine had to be running. The injured party raised a permit to work to run the machine without guarding. The permit was granted with no additional safety advice or review of precautions. Noticing that the running was not smooth, the injured party attempted to push the conveyor belt with a spanner, this became caught and he was unable to let go before his arm was drawn in and he was injured.
Basis of Appeal
The injured party admitted he was foolish and that there was no need to have made contact with the belt whilst it was moving. The basis of the appeal by Polyflor against its conviction was the contention that if someone is going to do something stupid, you can't stop them. A risk that an employee may do something stupid does not render a system of work unsafe. In essence, unless an employee did something very foolish there was no material risk to safety. Hence, they argued, the prosecution in this case had not established that there was a material risk and therefore there was no case to answer.
Decision
This was rejected by the Court in favour of the prosecution's submission that they only had to adduce some evidence of exposure to risk. Once that was established, the onus shifted to the employer to show on the balance of probabilities that it did all that was reasonably practicable to ensure that its employees were not exposed to such risk. The prosecution does not have to prove that a particular accident is foreseeable, merely that a danger has been created. Therefore the creation of a material risk through the carelessness of an employee remains a material risk for this purpose.
Conclusions
Whilst this reflects the existing position in prior case-law of the employers' duty under the Health and Safety at Work Act 1974, the employer was not helped in its appeal by the particular circumstances of the accident. It granted the permit to work for the engineer to operate the machine without guards, whilst moving. An unguarded machine with moving parts is a clear and obvious risk. Guards are placed on machines to protect employees and others from carelessly becoming trapped or otherwise injured by them. The outcome of the appeal being dismissed and the conviction upheld might have been different had the employer offered evidence that they did all that was reasonably practicable to avoid the risk, but that was not how its case was advanced.
In determining material risk and the qualification of what was foreseeable, the facts of the individual case will be crucial. However, from the experience of this case, it may be prudent for employers to focus on what measures they have in place to protect employees and others from human error, even if this is a grossly careless error, rather than take the position that such errors should not be regarded as risks to be controlled as they are so unlikely to happen that they are not material or foreseeable.
This does not mean a requirement for employers to protect against every act of stupidity, but rather to look critically at its procedures and consider whether and to what degree such human error scenarios need to be controlled. In conducting this assessment, it is anticipated that employers may need to go a long way to show that they have taken all reasonably practicable steps and so discharged their safety obligations.
The author Matt Kyle is a member of Burges Salmon's health and safety team led by Ann Metherall.