A case recently heard before the Scottish courts could hold particular importance to care providers and their health and safety consultants across the UK. While the facts of the case sit outside of the care sector, the overriding principles could still apply to operators within the sector, especially with the increase in regulatory activity and the level of fines.
The case involved the owner of a quarry who employed health and safety consultants to provide it with advice on the operation of activity on the ground. The details of the incident involved a build-up of material which was dumped on a site which unfortunately created, over time, a ramp over which a large vehicle could drive; this lead directly to the death of an employee. The owner of the quarry pleaded guilty and was convicted and fined in relation to a breach of health and safety regulations to ensure the safety of the environment.
The fine has been appealed on the grounds that the quarry operator was relying on the competence and skill of the health and safety consultant. The consultant had conducted regular inspections of the quarry and supplied inspection reports to the quarry owner. The owner questioned the advice given by the consultant which fell short of the standard acceptable. The court has found that there is a case to be answered and has consequently granted leave for the appeal to proceed.
There is a long held legal principle which states that a penalty that has been imposed cannot be recovered as part of its own criminal act. Essentially not allowing those found guilty of illegal conduct from gaining any benefit as a result.
It is compulsory under the Management of Health and Safety at Work Regulations 1999 to employ health and safety consultants. The very same regulations also provide protection to health and safety consultants who provide advice to employers under the regulations. This is a delicate legal point that needs to be determined definitively by the courts. It appears that the prosecuting authorities in the UK have thus far been reluctant to apportion blame to consultants and prefer to find fault with employers themselves. It seems to be quite a frustrating policy which on the one hand obliges employers to follow the guidance of their appointed health and safety advisor but on the other hand fails to provide the ability to rely on such advice without protection.
It is highly important, going forward, that care providers engage with their health and safety advisers and take their responsibilities under the Health & Safety at Work Act and associated legislation seriously. The ultimate responsibility for maintaining the health and safety of all within your care provision seems to rest with the provider; this case may challenge that assertion.