As we all know, as employers we have a duty to safeguard the Health & Safety of our employees in the working environment. This includes not only providing the appropriate equipment, risk assessments and safety measures but also ensuring that employees receive the correct training.

So what happens if, having carried out all the above, you have a really thoughtless employee who ignores what he or she has been taught and doesn’t even apply common sense?  Are you still liable when the inevitable incident occurs? Well, a recent case says you may be.

The 2014 Court of Apple case of Polyflor Ltd v HSE makes it clear that employers must guard against risks to employees who are careless or event grossly careless.

The facts of the case were that the employee was working on adjustments to the running of a conveyor belt used in the company’s manufacturing process. In order to do so, the safety guards to the equipment had to be removed and the employee had obtained permission to do so. However, the belt did not appear to be functioning correctly and, for whatever reason, the employee stuck a spanner into the machinery to try to correct the fault. As one might expect, the spanner was drawn into the moving machinery and, before the employee could let go of the spanner, his arm was pulled in too, resulting in serious injury.

Now, this strikes me as a pretty silly thing to do and Polyflor’s defence was exactly that – if someone is going to do something really stupid, how can you be expected to stop them. Interestingly, the employee admitted in evidence that it was a stupid thing to do and that he ‘took a risk’.  However, the Court still found that Polyflor was in breach of its duty under the Health & Safety At Work Act 1974.

The prosecution case was that it was only necessary to show evidence of some exposure to risk. The onus was then on the employer to show that it had done everything reasonably practicable to ensure that the employee is not exposed to that risk.  It does not matter whether or not a specific accident could have been foreseen, only that the risk has been created. A ‘material risk’ arising through an employee’s carelessness is still a material risk.

How does this fit with the facts of the case? Well, in giving permission for the employee to remove the safety guards, a clear risk arose – namely that of an employee being in close proximity to unguarded machinery with moving parts. It transpired that no additional safety advice or review of risk was given when the permission was granted.  The risk arose the moment the employee was allowed to be in front of the moving machinery without the safety guards in place.

The outcome might of course have been different if the employee had removed the guards without permission (although the issue might then have been how easy it was for this to be done) or if Polyflor had advanced evidence that they did all they could to control the risk (rather than relying on the argument that they were not responsible for the employee’s careless or stupid actions).

Issues of H & S liability are always going to turn on identifying ‘material risk’ and whether or not something was foreseeable.  The lesson to take away from the Polyflor case is that employers should focus on measures to protect employees and others from human error, even if this is a grossly careless error, rather than assuming that such errors should not be regarded as risks to be controlled, on the basis that they are so unlikely to happen.  This means looking critically at your procedures and considering whether and to what degree scenarios resulting from human error or stupidity need to be controlled.

I’m not of course a Health & Safety professional, so I’d be interested to hear your comments on the Polyflor case. So share your workplace experiences with me.