The Court of Appeal has dealt a worrying blow to employers, effectively saying that you cannot rely on common sense in your workforce and that you might be held responsible for failing to anticipate acts of idiocy! The Court considered whether the creation of a material risk by a careless employee was a material risk made by the employer meaning that the employer might be guilty of failing to ensure the health and safety of its employees.
The case involved a flooring manufacturer that was found guilty of safety failings after an employee was dragged into a machine at its factory. The incident took place during a nightshift when the employee helped maintenance workers trying to free a jam. As part of the process, those involved had removed safety guards which had been placed there due to an incident four years earlier. As the employee attempted to clear the jam he used a spanner to try and stop the belt rubbing thinking (incorrectly) that he would be able to react and release his grip if the spanner was dragged in. Unfortunately, the employee suffered a broken arm, had to be cut from the machine and needed seven weeks off work to recover.
During the subsequent Crown Court trial the employee accepted that, in his own words, he had been ‘foolish’. Despite that admission, however, the employer was convicted of failing to do all that was reasonably possible to ensure the safety of the employee.
The employer appealed to the Court of Appeal, arguing that there was no evidence of a breach of duty by the employer and the case should not have been left to the jury.
The Court of Appeal decision
The Court of Appeal explained that for the matter to go to the jury, the prosecution only had to present some evidence that an employee was exposed to a possibility of danger. Once that was established, the employer then had to show that it had done all that was reasonably practicable to ensure that its employee was not exposed to such risk. The creation of a material risk by the carelessness (or even ‘foolishness’) of an employee remained a material risk for the employer to guard against.
In this case, the employee had been exposed to a clear and obvious risk by the removal of the safety guards on the machinery to allow the maintenance to be carried out while the machine was still operating. Such activity was permitted by the employer and as such the employee was exposed to a clear risk.
So what does this mean for employers?
Although it is worrying that an employer can be responsible for the acts of careless employees, this does not mean that an employer will automatically be held responsible for any accident, regardless of how foolish employees are in ignoring obvious risks or disregarding safety procedures. It does mean, however, that employers will have to consider the potential for human error and poor judgement when compiling or reviewing risk assessments and take all reasonably practicable measures to control these factors. Employers now have a duty to anticipate acts, including foolish ones, of their employees.
For more information, email firstname.lastname@example.org.