Focus on… Section 7 of the Health and Safety at Work etc Act 1974
Employers may at times feel as though the duty for safeguarding an individual’s health and safety lies solely with them. This is not always the case…
What does it say?
We are all by now familiar with an employer’s duties to its employees and those not in their employment under sections 2 and 3 of the Health and Safety at Work etc. Act 1974 (the Act) however, section 7 of the Act places a duty on the employee to take reasonable care of the health and safety of themselves and others who may be affected by their acts or omissions at work.
The section also places a requirement on the employee to co-operate with their employer in ensuring the company complies with its requirements under the Act.
Section 53 of the Act confirms that an employee is 'an individual who works under a contract of employment'.
When would it be used?
For the period between 2000 and 2012 there were 239 prosecutions brought under s.7 of the Act, of which 181 resulted in convictions.
The Health and Safety Executive (HSE) confirms within their guidance that 'where the employer has taken all reasonably practicable steps to ensure compliance then action against the employee should be considered'.
Following the tragedy at the Hillsborough Football Stadium, Graham Mackrell, the Company Secretary and Senior Manager of Sheffield Wednesday has been charged with a failure under section 7.
The indictment cites failures to take reasonable care in his capacity as the safety officer in respect of admissions to the ground and in keeping up to date records and plans of the stadium.
Mr Mackrell did not enter a plea to the charge at the first hearing on 6 September 2017 and the case has been sent to Preston Crown Court for a trial in 2018.
What is the penalty?
The "Health and safety offences, corporate manslaughter and food safety and hygiene offences: Definitive guideline" issued by the Sentencing Council, sets out the range of penalties that an individual convicted of an offence under section 7 may face. They range from a fine (based on the individual’s income) to two years’ custody based on the seriousness of the harm caused.
Within the 181 convictions mentioned above, those convicted received fines ranging between £240 to £22,500. One received a suspended custodial sentence and one received community service.
The culpability of the individual is considered to be heightened if there is evidence of a flagrant disregard of the law or willful blindness to the risk of offending.
What can be done?
Whilst the duty under this section rests with the employees, employers must still ensure that they have done all that is reasonably practicable to educate their employees as to their own duties under the legislation.
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.