How do you ensure high health and safety standards are maintained in your workplace? Do you provide training, develop procedures and have clear lines of responsibility?
All of these things provide a firm foundation for compliance; however, without the right health and safety culture, even the most robust management systems will prove ineffective.
In truth, the day-to-day realities of running a business can often get in the way of best laid plans, causing you to deviate from protocol, take shortcuts and make occasional errors of judgment. However, as our Defendant Company discovered in our recent mock health and safety trial, complacency and over-reliance on written procedures can prove costly.
Regina v ELA Ltd
On the morning of 3 May 2019, self-employed electrician Mr William Volt arrived on site at Moreton Trust Primary Care facility to carry out maintenance work in the lift plant room. The company that had engaged him, Allswell Ltd, were an approved contactor of facilities management company ELA Ltd. Allswell had called Mr Volt at the last minute after they were unable to allocate one of their own electricians to the job.
Upon his arrival, Mr Volt was sent straight up to the lift plant room. Abandoning usual protocol, the Site Supervisor did not come down to meet Mr Volt, and despite the company’s policy stating that no contractors may work on site without attending an induction, none was given. Mr Volt was also unable to produce a Risk Assessment and Method Statement (RAMS), so was asked to complete a Point of Work Risk Assessment (POWRA); however, this did not adequately address the risks involved with working in a confined space. Despite this, a Permit to Work was issued and the work commenced.
A few minutes into the work, Mr Volt turned to inspect an area of wooden floor that had become water saturated. As he stepped onto this area, the floor gave way, causing him to fall 2 metres onto the steel lattice structure inside the passenger lift shaft. As a result, Mr Volt spent three months receiving treatment for multiple spinal injuries and was told that he may never walk again.
So what went wrong?
ELA Ltd pleaded not guilty to the breaching Section 3 of the Health and Safety at Work Act 1974, which states that:
“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
This duty extends to members of the public, visitors and contractors like Mr Volt.
The company claimed that the incident occurred as a result of individual failings, specifically that of the Site Supervisor, who had been made aware of a leak in the lift plant room by the site’s Technician two weeks prior to the incident. However, it had not been clear in email communication between the two who would raise the issue on the company’s reporting system. As such, the Site Manager was never alerted, and no remedial action was taken. An email exchange revealed that the leak had first been identified in an inspection report a week prior to the Site Supervisor being notified, meaning no action had been taken for approximately three weeks.
While the company admitted that the issue should have been dealt with more urgently, the wet floor had not been identified as an immediate risk – nor had it been identified as such by Mr Volt, a competent electrician, in his POWRA. Company representatives testified that there was no reason to suspect that the floor might collapse, and while ELA accepted that there were issues around near-miss reporting, it argued that this was a result of human error.
The Defence also emphasised ELA’s impeccable safety record. In addition to 18 months’ no lost time incidents, the company were RoSPA gold winners, which served as independent confirmation of the company’s “well-developed occupational health and safety management systems and culture, outstanding control of risk and very low levels of error, harm and loss”. Nine near misses had been recorded and acted upon in recent months, and the Moreton site had also won internal safety awards after receiving the highest safety score in an annual audit. This, ELA argued, strongly suggested that the incident was a result of individual oversight, not systemic failings.
The Prosecution stressed that great systems will only be effective in preventing harm if they are implemented properly on the ground. Clearly, on this occasion, those responsible for managing health and safety had failed to log the leak on the company’s internal reporting system, and the Site Supervisor being “busy” that morning meant that the company’s contractor control procedure had not been executed before work commenced. As the HSE Inspector for the case testified, “having a policy on a shelf can get you a tick in a box – but having them adhered to is another thing”.
In addition, the fact that Permits to Work had been pre-signed by the Site Manager, who wasn’t around to authorise the work on the day in question, shed serious doubts on the company’s commitment to health and safety. What’s more, the very fact that a Permit to Work was required suggested that the work involved a higher level of risk – making the lack of induction an even greater oversight.
All of this, the Prosecution argued, signaled that ELA had become complacent in the application of health and safety on a daily basis. Ultimately, it declared that the company had failed to take all “reasonably practicable” steps to keep people safe, despite being put on notice of the danger and the fact that the fall could have easily been fatal.
The verdict
ELA Ltd was found guilty of breaching the Health and Safety at Work etc Act 1974. It was fined £1.3 million and ordered to pay costs of £46,000.
In determining the level of fine, the court took into account the fact that the company had pled not guilty, which elevated the fine from a starting point of £1.1 million. It also determined that the level of culpability was high, as the company fell far short in its duty of care. This, coupled with the fact that the seriousness of the injury and likelihood of it occurring were also high, meant that a six-figure fine was appropriate.
As fines for health and safety breaches are unlimited, it is possible that ELA could have received an even higher penalty. However, the court did acknowledge that this was the company’s first prosecution, that it had been proactive in supporting Mr Volt and his family through the ordeal, and that it had cooperated in the aftermath. Importantly, it had since taken further steps to improve procedures to prevent similar incidents from occurring in the future.
Nick Wilson
Director of Health & Safety Services
Expert Comment
Whilst this was of course an entirely fictitious incident, the mock trial played out a number of failings which are not uncommon in the real world. These failings were put under the microscope by the Prosecution and the jury were left in no doubt that further reasonably practicable measures could and should have been taken. The trial provided an uncomfortable experience for some of the witnesses whose shortcomings were exposed but ultimately it was the Defendant Company who was left asking itself why its safety management system had failed to deliver.
