Last reviewed 29 April 2016

A recent Health and Safety Executive (HSE) prosecution has highlighted the risks that organisations take when they engage the services of a health and safety consultant and then things go wrong. Andrew Christodoulou investigates.

In April 2016, three companies were prosecuted by the HSE following two accidents at a furniture manufacturing company. Those prosecuted comprised the manufacturing company itself and two Occupational Health and Safety (OHS) consultancy companies that were involved in reviewing risk assessments for the manufacturing company.

This is, of course, not the first time that there has been legal action following the involvement of OHS consultants. In fact, such prosecutions are a relatively regular feature of the HSE’s prosecution portfolio. These recent cases are, however, a reminder to organisations that are thinking of taking on an OHS consultant or which are already using a consultant to be aware of the risks involved.

But what are the risks? How does the law handle the engagement of health and safety consultants? Does the law change when a consultant is taken on? Can responsibilities be delegated?

The case

The prosecutions followed two serious accidents at Jan Cavelle Furniture in Haverhill which occurred in February and June 2014. In the first instance, an employee of the company sustained serious injuries when operating a biscuit cutter and the rotating blade made contact with his hand, cutting his thumb to the bone. The second incident occurred when an employee sustained an injury to his hand while using the cutter of an overhead router. He received serious lacerations and crushed injuries to his right index finger.

The HSE investigation showed that the accidents had been caused by unsafe work practices, poor training and supervision as well as inadequate risk assessments.

In 2013, Worksafe Training & Consultancy had been commissioned by Jan Cavelle Furniture Company to review all risk assessments and work procedures, and to provide updated risk assessments and procedures where required. This consultancy subcontracted this work to Tony Baker of Leading Health & Safety Consultants, who provided risk assessments and recommendations relevant to both the biscuit cutter and the overhead router. According to the HSE, the risk assessments and procedures provided by Mr Baker were neither suitable nor sufficient to control risks arising from the operation of these two machines.

Jan Cavelle Furniture Company, of Haverhill, Suffolk, pleaded guilty to 2 counts of breaching s.2(1) of the Health and Safety at Work, etc Act 1974, and was fined £18,000 and ordered to pay costs of £4000.

Workplace Training and Consultancy Limited, of Bury St Edmunds, Suffolk, was found guilty at trial to breaching 2 counts of s.3(1) of the Health and Safety at Work, etc Act 1974, and was fined £22,500 and ordered to pay costs of £22,500.

Leading Health and Safety Consultants Limited, of Sudbury, Suffolk, pleaded guilty to breaching 2 counts of s.3(1) of the Health and Safety at Work, etc Act 1974, and was fined £5000 and ordered to pay costs of £5000.

Legal commentary

Despite the use of health and safety consultants, Jan Cavelle Furniture Company was found to have breached s.2(1) of the Health and Safety at Work, etc Act 1974. This section requires employers to ensure the health, safety and welfare of all their employees while they are at work. The duty extends to and includes the use of safe systems of work, as well as the provision of information, instruction, training and supervision as is necessary to ensure the health and safety of the employees.

In this case, Jan Cavelle Furniture Company failed in respect of its s.2 duties and was fined. It had not sufficiently protected its own employees irrespective of advice given in risk assessments by the engaged OHS consultancies. Taking on an OHS consultant had not delegated its duties. Such a delegation can sometimes happen by virtue of s.36 of the Health and Safety at Work, etc Act 1974. This section provides that where an offence is committed but the offence is the fault of some other person, then that person will be guilty of that offence. This section is sometimes used when OHS consultants have given bad advice and caused their clients to breach the law. However, on this occasion s.36 was not used.

The two OHS consultancy companies were both convicted of breaches of s.3(1) of the Health and Safety at Work, etc Act 1974. This section requires employers to conduct their undertakings in such a way to ensure that those not employed are not put at risk. In other words and in this case, the two OHS consultancies had given bad and incompetent advice which led to the employees at Jan Cavelle being put at risk.

There will undoubtedly be civil claims for compensation from the injured employees which may see the principle of vicarious liability becoming involved. Despite the use of OHS consultancies and their provision of inadequate risk assessments, the employer, Jan Cavelle may still find itself vicariously liable for the negligence of the OHS consultancy which led to the accidents and injuries in this case.

In summary, even when OHS consultants are used by an employer, that does not mean that the employer is no longer responsible for their duties under the Health and Safety at Work, etc Act 1974 and subsidiary regulations. Health and safety duties cannot be delegated or devolved in this manner.

Conclusion

In 2010, 37-year-old Anghel Milosavlevici was crushed to death while working on a basement excavation in Fulham. The excavations were not properly supported and collapsed, crushing and trapping Mr Milosavlevici. The company owner and a safety consultant were jailed. Mr Conrad Sidebottom of Siday Construction Ltd, who was also the site manager, was aware of the dangerous state of the excavations, but took no steps to ensure it was safe. It was also heard that Mr Richard Golding, a qualified health and safety advisor employed by AllDay Safety Services Ltd, was also aware of the risks as he was responsible for drafting the method of work statement. The method statement drafted was inadequate. Mr Sidebottom, aged 46, was sentenced to 3 years and 3 months in jail. Richard Golding was jailed for nine months.

When engaging an OHS consultant, organisations need to take great care. They should make thorough enquires about the competence, capabilities and suitability of a consultant. The Occupational Safety and Health Consultants Register (OSHCR) provides an up-to-date list of general health and safety advisors who have a qualification recognised by the professional bodies participating in the scheme. The problem is that the possession of qualifications and professional memberships does not mean that a particular consultant is competent or suitable for a particular assignment. Enquiries about relevant experience must be made and references obtained where possible. Where an OHS consultant intends to subcontract the work, similar checks and enquiries should be made in relation to the subcontractor. The work of OHS consultants must be closely monitored.

Taking on an OHS consultant is a risky business. Taking on someone who is not competent can backfire dramatically, as seen in this case. It can lead to prosecutions and fines. It can also lead to compensation claims. It can lead to irreparable damage to reputation. In extreme cases, it can lead to imprisonment.