Risky business

The Court of Appeal has delivered two important judgments on the types of risk which employers are legally required to take steps to control.

The Court dismissed both companies' appeals against their convictions under the Health and Safety at Work etc Act 1974 (HSWA 1974) in judgments handed down last week, in R v Tangerine Confectionery Limited and R v Veolia ES (UK) Limited [2011] EWCA Crim 2015.

In Tangerine, a confectionery company had been prosecuted and fined after an employee became trapped in jelly-bean making machinery in its sweet factory, and died. The appeal raised questions of whether the employee had placed himself in a dangerous position, and whether it was foreseeable to the employer that he would.

In Veolia, an agency worker had been litter-picking while an employee drove a Veolia van behind him, when a lorry bashed into the car, propelling it forward and killing the agency worker and injuring the employee. The company appealed, arguing that the accident was caused by poor driving rather than Veolia.

The Court considered the duties of employers to ensure the health, safety and welfare of employees, and to prevent non-employees in the workplace from being exposed to risk, under ss 2(1) and 3(1) of HSWA 1974.

Dismissing the appeals, Lord Justice Hughes said: “[The sections] are not limited, in the risks to which they apply, to risks which are obvious.

“They impose, in effect, a duty on employers to think deliberately about things which are not obvious.”

Michael Veal, prosecuting solicitor from Lester Aldridge LLP, who acted for the Health and Safety Executive, said: “Apart from where the allegation includes welfare of an employee, the decision of the Court of Appeal in Tangerine and Veolia is that the duty towards employees under s 2(1) of HSWA 1974 requires the same level of response from employers as the duty towards non-employees under s 3(1).

“And that makes sense: in the case of Veolia ES (UK) Limited, Mr Seymour, an employee, worked alongside and did the same litter picking job as Mr Griffiths, an agency worker. It could not be right that Veolia, for whom both carried out essentially the same job, could owe a greater duty to one than the other.”

The Court of Appeal was clear that ss 2 and 3 were concerned with risk rather than the mechanics of any accident, he said.

“The requirement to conduct assessments of risks, factoring in the hazards of the workplace together with the possibility of injury flowing from them, will continue to inform employers when they come to consider the introduction of measures to control those risks.

“And it is risks, in a general sense, which employers have to think about.”