The creation of a material risk by the carelessness of an employee remained a material risk for the purpose of the offence of failing so far as reasonably practicable to ensure the health and safety of employees contrary to the Health and Safety at Work etc. Act 1974 s.33(1)(a)
Polyflor Ltd v. Health & Safety Executive  EWCA Crim 1522
This case concerns a criminal prosecution brought by the Health and Safety Executive, but is significant in terms of understanding the general duty of employers to their employees under s.2 of the 1974 Act.
The appellant employer (P) appealed against its conviction for failing so far as reasonably practicable to ensure the health and safety of its employees (the s.2(1) duty) contrary to the Health and Safety at Work etc. Act 1974 s.33(1)(a).
P’s employee (X) got his arm caught in a piece of machinery which normally ran with guards. When it became blocked, X raised a permit to work the machine without guards. X put a spanner in the belt to find out where the belt was sticking. He was unable to let go of the spanner as it was pulled into the nip and he broke his arm. X accepted that he had taken a foolish risk. Moreover, an expert for the prosecution gave evidence that “if someone’s going to do something stupid, you can’t stop them”.
P made a submission of “no case to answer” as there was no evidence of a breach of duty by P, arguing that a risk would only materialise if an employee did something very foolish, and that, argued P, was not sufficient.
The court found that for a case to go to the jury, the prosecution need only adduce some evidence of exposure to risk, upon which the onus shifted to P to show on the balance of probabilities that it did all that was reasonably practicable to ensure its employee was not exposed to such risk. The prosecution did not have to prove that a particular accident was foreseeable. The creation of a material risk by the carelessness (including gross carelessness) of an employee remains a material risk for the purposes of the offence. P’s employee had been exposed to a clear and material risk by the removal of the guards so that maintenance could be performed while the machine was still in operation (something which P permitted). That was sufficient for the evidential threshold to be met.
The court threw a small bone to employers, however, saying: “All, of course, is not lost from the employer’s point of view in such a situation if the defence of reasonable practicability can be established”.