A recent conviction following a fatal injury at an engineering firm highlights the legal obligations, not only for those who employ apprentices, but also for the agencies that place them.
A key message to take from this case is that it demonstrates the ever expanding scope for health and safety enforcement. Here an employment agency, traditionally perceived as being a low risk enterprise dealing with placement with no ongoing obligation to the individual placed, has been convicted.
The agency in question, Lime People Training Solutions, placed an apprentice with Huntley Mount Engineering Ltd and received a government grant of £4,500 for doing so.
Tragically, the company did not adequately control the risks from the working environment and Cameron Minshull was fatally injured during the course of his apprenticeship. The judicial comments when sentencing reveal the extent of the breaches: “inadequately trained, inexperienced, unqualified and virtually unsupervised [apprentices] were effectively left to their own devices in a workshop containing fast running, unguarded machinery”. The breaches even extended to the deceased being given overalls which did not fit him, exacerbating the risk of fatal entrapment whilst cleaning the lathe in question.
Prosecution and sentencing
The agency was fined £75,000 for health and safety breaches, the company was prosecuted and convicted of Corporate Manslaughter and fined £150,000. Zaffar Hussain, a director prosecuted for neglect under section 37 of the Health and Safety at Work etc Act, and Akbar Hussain, a supervisor prosecuted for breach of his duties as an employee under the Act, were both convicted as individuals. The former was jailed for eight months and banned from being a director for ten years, the latter was given a four month jail sentence, suspended for a year and a £3,000 fine. Both also had to pay costs of £15,000.
An important reminder
This case reminds us that all employers (and self-employed persons, provided their activities involve the potential for risk) have a duty under section 3 of the Act to ensure that non-employees are not exposed to risks to health and safety from the conduct of their undertaking, so far as is reasonably practicable. This includes the agencies that place workers, who should be carrying out checks to ensure that the environment in which workers are placed is not dangerous.
Companies employing apprentices (or anyone else) have a duty under section 2 of the Act to ensure, so far as is reasonably practicable, the health, safety and welfare of employees.
Directors can be guilty of offences under section 37 if they can be demonstrated to have consented, connived (turned a blind eye to) or neglected in respect of the commission of the offence by the company.
Individuals can be criminally liable if they fail to take reasonable care of the health and safety of themselves or others, and if they fail to comply with duties or requirements imposed by their employers.
All of these offences carry the possibility of imprisonment for individuals and unlimited fines for both individuals and corporate entities.
Of particular importance when employing apprentices or other workers who are likely to be young people, is regulation 5(5) of the Management of Health and Safety at Work Regulations 1999, which states:
“In making or reviewing the assessment, an employer who employs or is to employ a young person shall take particular account of—
- the inexperience, lack of awareness of risks and immaturity of young persons;
- the fitting-out and layout of the workplace and the workstation;
- the nature, degree and duration of exposure to physical, biological and chemical agents;
- the form, range, and use of work equipment and the way in which it is handled;
- the organisation of processes and activities;
- the extent of the health and safety training provided or to be provided to young persons; and
- risks from agents, processes and work listed in the Annex to Council Directive 94/33/EC on the protection of young people at work.”
It is essential for employers to bear these obligations in mind when assessing the risks to which young persons will be exposed, and bearing in mind both their lack of experience and any limitations they may have by comparison to an adult worker.
As mentioned earlier in the article, a key message to take from this case is that it demonstrates the ever expanding scope for health and safety enforcement. In the last five years, we have seen the first prosecutions of liquidators and external health and safety consultants for safety related breaches. We are now seeing other non-employer relationships result in prosecutions. Here an employment agency, traditionally perceived as being a low risk enterprise dealing with placement with no ongoing obligation to the individual placed, has been convicted.
This raises issues for anyone placing people into working environments with limited ability to consider the risks and highlights the difficult position in particular for agencies placing workers, schools placing work experience students and Universities placing students in industry.
The case shows how onerous the duty of “reasonable practicability” can be, requiring as it does a gross disproportion between the cost of removing or controlling a risk and the resulting benefit. It is also worth remembering that where a duty of care exists then corporate entities are potentially caught by the Corporate Manslaughter Act which carries even more significant penalties.
If you have any questions or would like more information, please contact one of our specialists below.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.