Health and Safety law is different to many other laws; in most legal matters, you need to prove why the guilty party is wrong with reasonable evidence. But Health and Safety law works very differently from that. Below, we have compiled key points to make it easier to understand.

Why is Health and Safety law different

  • Section 40 of the Health and Safety at Work etc Act 1974, the UK’s cornerstone health and safety legislation, states: “In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.”

  • If a company is charged with a health and safety offence, it falls upon them to prove that they took all “reasonably practicable” precautions to prevent harm occurring or to satisfy the duty or requirement in question.

  • As an employer, the responsibility rests with you to prove you did all you could to prevent an accident, rather than with the prosecution to convince the court that you failed in your duty.
 

Is this fair?

  • You can’t always prevent accidents from occurring due to employees’ own poor judgment or dangerous risk-taking behaviour, though again, it would be down to you as the employer to demonstrate that you had provided training and made them well aware of the risks.

  • As long as you can satisfy that test – that you did everything that could reasonably be expected of you to prevent such an incident – then you will not be liable.

  • The statutory defence of “reasonable practicability” can be tricky for employers to prove, as the effort or cost involved in implementing safety measures must substantially outweigh the quantum of risk involved. Therefore, though it’s not impossible to successfully defend your position in a health and safety court, it is certainly an uphill battle.

  • As of March 2015, Magistrates have the power to issue unlimited fines, and six-figure penalties are now commonplace, increasing the risk to employers.

 

 

Where does this leave employers?

  • With the right support, a proactive approach to health and safety can not only help your organisation to avoid the costly consequences of non-compliance but also realise many tangible benefits: increasing employee engagement, reducing the cost and disruption caused by employee absences, opening doors to new business opportunities and affirming your reputation as a responsible employer.

  • It’s pertinent to ask yourself: if there was to be an accident in your workplace, could you say that you did all you could to prevent it? What evidence do you have of the steps you have taken? Could you conceivably do more? If the answer to any of these questions is ‘yes’, defending legal action would be difficult, so now is the time to strengthen your arrangements and, to be on the safe side, consider seeking specialist support.
Case Study: Davies v Health and Safety Executive

Unsurprisingly, companies have tried to challenge the lawfulness of Section 40 and the concept of ‘guilty until proven innocent’, arguing that it conflicts with the principle of presumed innocence under the Human Rights Act.

Following a number of conflicting decisions at Crown Court level, the case of Davies v Health and Safety Executive in 2002 has effectively settled the debate, with the Court of Appeal concluding that the legal burden of proof was not only justified but also necessary and proportionate.

This particular case involved a subcontractor who was fatally crushed between a truck and a reversing JCB driven by another employee. The defendant employer, Mr Davies, argued that he had done all that was reasonably practicable to avoid the incident. The trial judge, however, held that it was on him to prove it wasn’t reasonably practicable for him to have done more. He was convicted and fined.

Mr Davies appealed the decision. Ultimately, the Court of Appeal ruled that if the prosecution (the HSE) can show that exposure to a risk existed, i.e. that it was reasonably foreseeable, then the burden of proof shifts to the defence and it is for you to prove that you have acted in a reasonably practicable manner to manage the risk.

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