Section 7 of the Health and Safety at Work etc Act: A Practitioner's Overview - Laura Howarde, Weightmans LLP

22/03/18. With the focus mainly on sections 2 and 3 of the Health and Safety at Work etc. Act 1974, that concern an employer’s duties to their employees and those not in their employment, section 7 of the 1974 Act is often forgotten. This particular section outlines the general duties of an employee and suggests that an individual can be held accountable for their own actions whilst at work.

Section 7 states that ‘it shall be the duty of every employee while at work to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work’. It also imposes a duty on the employee to co-operate with their employer (so far as is necessary) to enable the employer to comply with their duties under ss.2 and 3. What this means is that employees are required to obey any policies or procedures that are put in place by their employer for the purpose of ensuring the workforces health, safety and welfare whilst at work.

Charges under section 7 of the Health and Safety at Work etc. Act 1974 are seldom laid by the Health and Safety Executive (HSE), with 239 prosecutions brought under the section between 2000 and 2012. 181 of these prosecutions however, resulted in convictions equating to a 76% success rate.

The HSE indicate that the standard required to lay a charge under section 7 is relatively high and state that where the employer appears ‘primarily responsible’ for the circumstances giving rise to a potential prosecution, action should normally be taken against the employer alone.

Further it states that consideration should be given to how the other employees were conducting themselves, before a charge is brought under section 7. This suggests that if more than one employee is acting in this unsafe manner, then it is the fault of the employer, rather than the individuals, for permitting an unsafe culture to develop.

Finally, the guidance states that consideration should be given to whether the employee has received previous warnings for their conduct and whether the offence created an ‘obvious risk’.

It is therefore suggested that charges under s.7 should only be brought in extraordinary circumstances, when an employee has completely disregarded the policies and procedures put in place by their employer and has been the primary cause of creating an unsafe situation.

In fields such as construction, where employees are governed by such strict systems of work relating to health and safety, it is understandable how such an offence where the employee is held accountable for the failing is unusual.

The HSE were satisfied however that such an offence had been committed after a pedestrian was seriously injured at a site in Wimbledon, South West London in August 2017. The pedestrian who was also an employee of the company was crushed by an excavator driven by Mr David Rupeika.

CCTV footage of the incident shows Mr Rupeika driving the 360 Excavator out of a warehouse and towards another excavator that was manoeuvring in the yard. He then proceeds to rotate the cab and drive the excavator at speed, whilst he was facing sideways towards two pedestrians who were standing in an area of safety just outside the doors of the warehouse. The pedestrian was crushed against the wall of the warehouse and sustained serious injuries.

Mr Rupeika pleaded not guilty to the two charges brought against him under section 7(a) and a jury at Southwark Crown Court heard that the policies and procedures were in place to avoid such an incident occurring. The prosecution suggested that the circumstances arose as a result of Mr Rupeika operating the Excavator at excess speed and without regard for the health and safety of his co-workers.

Mr Rupeika was found guilty of both counts and was sentenced to six months in custody, suspended for two years and was ordered to undertake 40 hours of unpaid work. He was also ordered to pay Prosecution costs and the statutory victim surcharge.

The message therefore that should be communicated is that employees are not immune from prosecution and they cannot expect that their employer will be liable if something goes wrong. As such they should be aware of their responsibility to look after their own health and safety, as well as the health and safety of others. This can be done through training and/or visible reminders on posters and flyers to put the issue and the potential risks in the forefront of employees’ minds. Employees need to be alive to the fact that on the occasion that they ignore a safe system of work that they may consider too onerous or cumbersome, they could find themselves in the dock.

Laura Howarde
Solicitor
Weightmans LLP

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