News Criminal Regulatory 25th Jan 2023

Tom Day’s client unanimously acquitted in Health and Safety prosecution.

Tom Day’s client, PD, was charged with two offences under section 2(1) and section 3(2) of the Health and Safety at Work Act 1974.  The alleged offences arose out of an accident on a building site during the course of renovations of a house. In 2018 two labourers were injured by a wall collapsing onto them while demolition was taking place at a home in Essex. One of the two labourers was a 17 year-old with no experience of labouring or the construction industry who had previously worked for PD at a different address – he suffered serious injuries including fractures of his spine.  The prosecution was brought against PD by the Health and Safety Executive on two alternative counts:

  1. That PD was the employer of the injured person and had failed to discharge his duty to ensure, so far as reasonably practicable, his health and safety – section 2(1).
  2. That PD was not the employer of the injured person but because the renovations work were his “undertaking” he had a duty to ensure, so far as reasonably practicable, that the injured person was not exposed to risks to his health and safety.

The prosecution had pursued only the section 2(1) offence but pleaded the alternative upon the defence identifying that the relationship between PD and the injured party was not one of employment. The defence also asserted that the renovations work were not, properly understood, PD’s undertaking.

The case therefore turned on the legal definition of employer/employee and the definition of “undertaking”, i.e. whether PD was a dutyholder under the 1974 Act. These matters are often not contested in prosecutions under sections 2 and 3 of the 1974 Act (regularly because there is no doubt as to the employment status of those exposed to risk or whether the activity was part of the defendant’s undertaking). It is, however, vitally important to ensure at an early stage and before submissions are made to the prosecution body whether those issues are live in the instant case.

A defence based on asserting that no duty existed – employment status and the definition of undertaking – has the particular advantage that the prosecution must prove both of those matters to the criminal standard in contrast to the duty on the defence to establish that they had complied with the duty. There is no comprehensive definition of when an individual works under a contract of employment and so careful consideration of employment law, crafting of comprehensive legal submissions on an issue most Crown Court judge will be unfamiliar with and ensuring the legal directions to the jury are accurate is crucial. Likewise, the term undertaking has received little attention in case since the 1990s and is an area where the defence may be able to successfully resist a prosecution.

After a trial at Basildon Crown Court the jury returned unanimous verdicts of not guilty on both counts.

Tom was instructed by Gary Smith of DWF Law.


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