Health and safety duties | Why employees aren’t off the hook

Employers often assume that the duty for upholding health and safety lies solely with them. In reality, this isn’t the case.

While the primary responsibility for health and safety falls on the employer, section 7 of the Health and Safety at Work Act 1974 (HSWA) places a number of important responsibilities on the shoulders of employees.

What does section 7 say?

Section 7 is aimed at employees rather than the employer.

It states that every employee while at work must:

  1. Take reasonable care for their own health and safety, as well as the health and safety of others who may be affected by their acts or omissions at work. In other words, employees must not put others at risk by what they do or don’t do at work. This covers the same broad public group that employers must protect – so not just the person on the next workbench or desk.
  2. Co-operate with their employer, as well as other who have health and safety obligations placed upon them, to help them to meet their obligations. Employees must co-operate so far as is necessary to allow the obligation imposed by health and safety law to be met.

If an employee fails to comply with these section 7 general duties, they may be committing an offence.

“While at work” means that the section 7 general duties only apply in the course of employment. In other words, if a lack of reasonable care does not occur at work, then an employee won’t have committed an offence.

Section 53 of the HSWA confirms that an employee is “an individual who works under a contract of employment”.

What does section 7 mean?

An employee can be prosecuted under section 7 if an incident takes place and they fail to:

  • Take reasonable care of their own health and safety;
  • Take reasonable care of someone else’s health and safety; and
  • Co-operate with their employer or any individual under a health and safety obligation.

In practice, the employer’s Health & Safety Policy should set out what amounts to the key employee duty of taking “reasonable care” of themselves and others. Duties laid out in the policy may include summaries of what the law says, plus the organisation’s own rules.

When would section 7 be used?

Section 7 is actually a relatively rarely used provision of the HSWA that involves criminal prosecution of an individual. Between 2000 and 2012, there were 239 such prosecutions, of which 181 resulted in convictions.

If the employer appears primarily responsible for the incident, then action will normally only be taken against the employer. However, the Health and Safety Executive (HSE) says within its guidance that “where the employer has taken all reasonably practicable steps to ensure compliance then action against the employee should be considered”.

The critical question will be whether the employee failed to take “reasonable care”. Although this will be a question of fact for the court, it’s important to note that this question is not concerned with how an accident occurred but rather whether reasonable care was taken.

banter in workplace

Typical factors considered will be whether:

  • The employee followed their employer’s in-place systems of work.
  • Any previous warnings were given to the employee.
  • The offence by the employee created an obvious risk.

The extent to which the risk could or should have been foreseen will be an important factor.

What’s the penalty?

The Health and Safety Offences Definitive Guideline issued by the Sentencing Council sets out the range of penalties individuals convicted of an offence under section 7 face. Depending on the seriousness of the harm caused, these range from a fine to two years’ custody.

Within the above 181 convictions, fines received ranged between £240 to £22,500. One individual received a suspended custodial sentence and another received community service.

In a high-profile 2019 case, Hillsborough safety officer Graham Mackrell was convicted of an offence under section 7 of the HSWA for his part in the tragedy, which killed 96 people and injured hundreds more. Mackrell was found to have failed in his official duties, namely in relation to admissions to the ground and keeping up to date records and plans of the stadium. He was fined £6,500 and ordered to pay £5,000 towards prosecution costs.

An individual’s culpability – their degree of fault – is considered to be heightened if there is evidence that they flagrantly disregarded the law or were wilfully blind to the risk of offending.

In the 2014 case of R v Sidebottom and Golding, a health and safety advisor received a nine-month custodial sentence for failing to comply with his section 7 duty. The court found that he had failed to adequately monitor the safety of excavation works, which led to the death of a construction worker.

Increased seniority, increased risk

While individual employees may be held personally liable and prosecuted for failing to carry out their section 7 duties, this is still fairly uncommon. The regulatory authorities seem to have more appetite for prosecuting more senior staff with “greater authority”.

Although the duty under section 7 rests with employees, employers must still make sure they have done all that is reasonably practicable to educate their employees as to their health and safety duties.

This can be achieved through Health & Safety Training and/or visible reminders on posters and flyers – putting the issue and potential risks at the forefront of employees’ minds

Upskill your team with expert-led training

Ellis Whittam’s team of qualified Health & Safety Consultants deliver a range of interactive IOSH-accredited training courses designed to effective reduce accidents, lower absenteeism, improve engagement and ultimately protect your organisation against financial and reputational risk. As a more flexible alternative, we also offer an extensive library of e-Learning courses, covering more than 60 topics, to allow employees to complete training any time, anywhere, with minimum disruption to your business.

For more information, call 0345 226 8393 or request a free consultation using the button below.