There is no doubt that the number of health and safety prosecutions is on the rise. The year of 2019 saw the highest number of health and safety prosecutions on record in Jersey. At the same time the level of fines being imposed has risen. Fines ranging from £8,000 to £60,000 were handed out to eight different companies and employers that year.
The pandemic has seen most businesses suffer a significant degree of disruption. The construction sector is no exception (although happily it has not been brought to a complete standstill). Notwithstanding the restrictions on businesses throughout 2020 there were still three prosecutions, resulting in fines of between £10,000 and £50,000. As the world and the economy re-opens, we anticipate that the number of prosecutions will remain high. Similarly, we expect that the level of fines will also increase, albeit at a slower pace than over the recent past.
There are 15 offences listed in the Health and Safety at Work (Jersey) Law 1989. Virtually all prosecutions, however, are for contravention of Article 21(1)(a), specifically for a failure to discharge their duty under the Law to ensure the health and safety of their employees. The reason for this is because of the heavy burden placed on employers by the statutory ‘general duties’ provisions.
The principal duty of the employer is to ensure the health, safety and welfare at work of their employees. This is a result the employer has to achieve. Where an employee sustains an injury at work the employer has, on the face of it, failed to ensure the employee’s health and safety. However, the duty is not absolute. It is qualified by the words “so far as is reasonably practicable”. If an employee is injured at work and the employer is prosecuted the issue for the court is likely to be whether or not the employer did all that was reasonably practicable to avoid the injury. The employer will not be liable if they can show that it was not reasonably practicable for them to have done more. This is a very high hurdle. It is not insurmountable.
The starting point is for an employer to have in place a rigorous and robust health and safety policy. This is crucial. It demonstrates that an employer takes health and safety seriously, has properly considered the risks inherent in its operations and how to prevent accidents and minimise dangers. Absent such a foundation, an employer has very little hope of persuading a court that it has done all that is reasonably practicable and may of itself end in prosecution. In AG v Brown no accident occurred but the employer was unable to provide evidence of any sort of risk assessment or safe system of work having been devised.
Good policies and procedures are the start, but only the start. Employers need to ensure that their employees are aware of them, and understand them, and keep up to date with them. Regular training is essential, as is building an environment in which all members of the team buy-in to safe working and take responsibility for their health and safety and the health and safety of their colleagues. Keeping proper records is important to evidence that policies and procedures were provided to employees, as well as regular training. Record keeping is also important when it comes to evidencing a serious assessment and evaluation of the risks involved in a particular operation, or aspect of it, and that thought has been given and steps have been taken to minimise risks. Finally, appropriate supervision of employees is a must.
No employer is immune from seeing from one of their employees involved in an accident, even the most careful and dutiful employers. The impact of such accidents is more than just financial, it is emotional – it is hard for the wider team to see one of their number injured – and it is time-consuming, particularly for management. It is important that employers embrace a culture of health and safety and take sensible steps to minimise both the prospects of an accident occurring and the damage it causes if (despite best efforts) an accident does happen.
Obviously lessons can be learnt from an accident, and changes made. However, these changes and acts of seeking to avoid such an occurrence again, only count as mitigation in respect of sentence. It is better (and cheaper) to do everything possible to avoid them.