Health and safety law – Common misconceptions in avoiding investigation

A helpful but somber note from our lawyers Watson Burton on two common misunderstandings about an employer’s duties with regard to health and safety. ‘You might think that a regulatory defence lawyer’s typical client would be the cowboy operator who had got their come-uppance at long last. But you would be wrong. In fact, most clients are decent and conscientious business people who have traded for years without an accident who suddenly find themselves facing criminal investigation and are genuinely at a loss to understand why. The usual reason is that the gap between what people think their legal duties are, and what the law actually requires of them, is a lot wider than they realise. The aim of this article is to correct a couple of the more common misconceptions. It is only by grasping the fundamentals of the law that businesses will stand a chance of avoiding its more unpleasant consequences. 1. ‘Health and Safety law is all about preventing accidents’
Obviously, you will be in trouble if you don’t prevent accidents, but the legal requirement goes much further. Employers must ensure the health, safety and welfare at work of their employees. The same duties extend to conducting their business so that people who are not employees, but who might still be affected by how it is run (for example, sub-contractors, site visitors, members of the public etc are not exposed to risks to their health and safety. The duty is therefore not just negative (preventing accidents it is also a positive duty not to expose people to the risk of harm. That means that your business can be convicted without an accident ever happening. The Health and Safety Executive (HSE) just needs to show that there was one there waiting to happen. Similarly, if an accident happens, you can still be convicted, even if the HSE cannot prove that you played any part in causing it. 2.  ‘I am doing all that I reasonably can to comply with the law’
Confusion often arises here with the duty in civil law not to cause harm to others, which will usually be discharged by showing that you took as much care to avoid doing so as a reasonable person in that situation would have taken. However, that falls far short of the criminal law duty, which is to ensure the health and safety of others. The courts interpret that hurdle as being set very high indeed – much more like ‘doing everything that lies within your power’. The duty is not absolute. You will have discharged it if you can prove that you have taken all reasonably practicable steps to comply. However, the courts place heavy emphasis on the ‘all