March 28, 2014
How personal prosecution works
Ever wondered how personal prosecution works? What are your rights and your employees rights and what needs to be proven in order to prosecute someone? Here’s a brief look at the process.
The Executive’s Enforcement Policy Statement (EPS) requires inspectors to identify and prosecute (or recommend prosecution of) individuals if they consider that prosecution is warranted.
In considering prosecution of individuals two points need to be consider “whether we can prosecute “or “ whether we ought to prosecute”.
The role of directors, managers, employees and other individuals will be considered in criminal investigations, and, in deciding weather to prosecute individuals, and does the evidence provides a “realistic prospect of conviction” (the evidential stage).
If it does then you should consider whether a prosecution is in the public interest, applying the Commission’s EPS and the Code for Crown Prosecutors. To be prosecuted under section 7 it must be proven that a person is:
- employed, and
- ‘at work’ in the course of their employment, and either
- did not take reasonable care for someone’s health and safety (including their own), or
- did not co-operate with their employer so far as was necessary to enable their employer to comply with a statutory duty or requirement.
‘Reasonable care’ and ‘necessary to enable’ needs to be considered in the context of the employer’s provisions.
For example, a machine operator who has received inadequate training might be considered to have acted reasonably in all the circumstances if they remove a guard from a machine and continues to use it, and this is the generally accepted and condoned practice in the company.
In other circumstances the same act might be considered unreasonable, if the employee has received proper training, if the guard in question is sufficient, and if removal of guards is neither accepted nor condoned in the company.
The term ‘so far as is necessary’ does not require employees to compensate for employers’ failure to make adequate provisions. This remains the responsibility of the employer.
Public interest is not just being able to prove a case but weather a prosecution will take place, where employers are responsible for the circumstances which cause the need for enforcement then action would normally take place against the employer only.
For section 7 offences you should consider:
- whether the company had done all it reasonably could to ensure compliance;
- whether the offence was solely the result of the actions/inactions of the individual;
- whether employees, as a matter of general practice, followed the systems of work alleged by the employer to be in force;
- any previous warnings to the employee, from whatever source;
- whether the offence by the employee was flagrant;
- the risks to health and safety arising from the offence by the employee;
- whether prosecution would be seen by others as fair, appropriate and warranted.
- In some cases there may be a need to consider if the company had done all it could and the offence resulted solely from the actions/inactions of an individual or whether, notwithstanding individuals’ actions, the company was culpable.
It is also possible, but probably less likely, to prosecute both the company and an individual employee. This might be where there were deficiencies in the company’s arrangements/procedures and additional, separate actions/inactions by an individual – both of which warrant prosecution.
However, in general, no prosecute of individuals whose actions arose from their employer’s unsatisfactory working arrangements and procedures.
Action will be taken under Section 7 against managers and supervisors who are not directors/managers subject to Section 37. Each case should be considered on its merits. It should be boar in mind that lower level managers are closer to the day-to-day activities of a company and it may therefore be easier to obtain evidence against them. Where the principal failings were at a higher level then, in accordance with the principles in the EPS [PDF 89KB] ,
Some acts of horseplay and violence against people will come within the scope of section 7 if they arise out of or in connection with work and put people’s health and safety at risk.
In general it is most likely to prosecute employees under section 7 where they have shown a reckless disregard for health and safety, and such disregard has resulted in serious risk.
To prosecute someone under section 37 it needs to be prove that:
I. a body corporate has committed an offence under a relevant statutory provision; and
II. a person is a “director, manager, secretary or other similar office holder” within the terms of section 37; and that either
a. the person was aware of what was going on and agreed to it, (consent); or
b. the person was aware of what was going on (connived); or
c. what was going on was attributable to the neglect of the person, in relation to an obligation or duty on the part of the person.
Directors/managers who are subject to section 37 may also be employees and therefore also subject to section 7. It may be judged more appropriate. In general to determine this by the role being fulfilled at the time. If he/she was acting as a director of the company and directing its affairs then section 37 would be used. If he/she was, in effect, acting as an employee and carrying out the company’s procedures in the same way as other employees then section 7 may be more appropriate. The facts of the case should determine which is appropriate and not whether one offence is easier or more convenient to prove.
Sections 8 and 36 allow cases to be taken against persons who did not commit the original offence but who nevertheless caused the offence. (‘Person’ includes bodies corporate as well as individuals). This includes people who are not specific duty holders under HSWA, such as members of the public or elected members of local authorities
Employees and directors/managers may fall within sections 8 and 36. It is therefore possible for a person to be considered for prosecution under a range of sections. Sections 7 and 37, deal specifically with employees and directors.
To prosecute under section 8 it needs to be proved that:
- something was provided in the interests of health, safety or welfare under a relevant statutory provision, and
- what was provided was either interfered with or misused, and
- this was done either intentionally or recklessly.
To prosecute under section 36 it needs to be proved that a duty holder committed an offence, and that the offence was caused by the act or default of the other person.
As well as establishing the ‘status’ of individuals; investigations into possible section 37 offences need evidence that the individuals consented to or connived in the offence by the body corporate, or that the offence was attributable to their neglect.
The central point is awareness. Evidence of such ‘awareness’ may come from:
- documentation such as minutes/notes of meetings;
- showing that the individual sanctioned particular action, or was present when relevant matters/activities were discussed/agreed;
- first hand witness evidence observing the individual, for example personally carrying out or observing a particular work activity, or
- first hand witness evidence of instructions given and received.
To prove neglect, it has to be proved that the accused has failed to take some steps to prevent the commission of an offence and that the taking of those steps either expressly falls, or should be held to fall within the scope of the functions of the office which he holds. A court would need to consider this in light of the whole circumstances of the case including the accused’s state of knowledge of the need for action, or the existence of a state of fact requiring action to be taken of which he ought to have been aware.