20 November, 2018
The HSE reported following the introduction of the new Sentencing Guidelines in February 2016, that in the following year to end March 2017 there had been a 80% increase of fines from the previous year - an increase of fines of £69.9m from £38.8m. Admittedly, the increase in fines is probably the Courts increasing fines as against large organisations who may find themselves being fined in the millions under the new sentencing guidelines.
Nevertheless, what is clear is that there is an increasing appetite to prosecute and an increasing trend on substantial fines imposed by the Courts even against Education establishments.
This article proposes to look at some case examples over the past few years where the HSE have taken enforcement action against schools/colleges, if things go wrong. This is often separate to any civil claim which may be brought if any injury has been caused by an incident. On public policy grounds, fines and prosecution costs imposed by the Courts are not covered under any insurance policy arrangements. You will usually have cover under the policy terms to cover the cost of defending regulatory breaches only.
There are a variety of activities affecting Education organisations and the primary health and safety legislation is contained within s2 and s3 of the Health and Safety At Work Act 1974. Section 2 imposes a duty to act reasonably to ensure health and safety in the workplace and section 3 legislates the duty towards others not in your employment so could include pupils, visitors and parents. The central aim of the health and safety law is a duty not to expose persons to risk. It is a wide interpretation. For the HSE to intervene and take enforcement action there does not need to be an accident although often the HSE become aware of such incidents within schools via these unfortunate means. The health and safety law applies where there is a risk of harm irrespective of whether there is any actual harm.
The above issues are best put into perspective by having a look at a few cases where the HSE have intervened and taken enforcement action. You cannot compare two cases as each cases on its own unique facts will have its own aggravating and mitigating factors which the Court would take into account on sentence. An early guilty plea usually attracts a reduction of sentence of one third.
Other interventions have arisen where there no actual harm has been caused. In a sentence in August 2018 Kent County Council were fined £200,000 after finding that asbestos had been disturbed at a primary school. The HSE had found that a flue and gasket rope had been removed by a caretaker, some 18 months before the discovery in November 2014. There were also findings that neither the caretaker nor the head teacher had any asbestos awareness training. The judge found the dangers of asbestos had been identified in reports dating back to 2010 and 2012. Following a guilty plea to breaching regulation 10 (1) of the control of asbestos regulations 2012 a substantial fine was imposed with costs. There was no actual harm caused, but that is not necessary for a breach to be established. Evidence was given to the judge that the risk of persons being exposed was 0.0009%!
A more recent case in the headlines and a truly tragic case, involved a school minibus being driven at a safe speed by a teacher colliding with two pupils at home time, one pupil being fatally injured. The findings were that both pupils ran into the path of the minibus on school grounds as it was passing down the middle of the parked coaches on either side of the road. A health and safety adviser identified issues regarding the school's design 6 years prior to the incident, which related to drop-off points, safe walkways and limited parking space for school buses which had not been implemented. Coach drivers described the area as a "free for all", and others describing it as "chaos". There had been near misses including a few days before the incident. The HSE said the period of time over which the breached occurred over was "excessively long". Following a guilty plea a fine of £300,000 was imposed with costs.
The HSE has urged schools to review traffic arrangements within their grounds, and where possible design layouts so pupils are separated from moving traffic. Although there had been previous near misses, there was no system for these to be reported and discussed. The need for children to cross the road to board their bus could have been taken away with proper planning and design, which should always seek to keep vehicles and pedestrians apart. HSE guidance clearly states that transport safety at every workplace should start with the creation of a 'safe site.' Children may not be risk aware, there will be a rush of children all leaving school at once. This predictable behaviour makes it all the more important that transport risk is properly managed, and regularly reviewed.
In March 2014, a twelve year old schoolboy was in a design and technology class making animal shapes out of plywood. The class used hand saws and some were using a belt sanding machine. The court heard the schoolboy was using the machine for the first time, along with fellow pupils. They were shown how to use it by a fellow pupil and none knew the purpose of the metal guard for the sanding belt which was in a raised position. When the pupil put the shape to the belt, it flipped downwards into the gap pulling his left hand forward and trapping it between the shape and the belt. The top of the boys left hand middle finger had to be amputated down to knuckle.
The HSE alleged the teacher had not received adequate training to recognise that the machine was in an unsafe condition or recognise the risk of allowing pupils to use the machinery unsupervised and without suitable training. The design and technology class had been without a technician for 8 weeks prior to the incident; on the day of the incident, the teacher was supervising the class alone.
The school pleaded guilty to a section 3 Health and Safety breach and was fined £200,000 and ordered to pay full costs.
A failure to adhere to a risk assessment or health and safety policy is best demonstrated by another tragic case. In January 2016 a Hertfordshire school were before the court for safety failings after a pupil suffered permanent paralysis when a swing collapsed. A 13-year-old pupil at the school was playing on a wooden swing in an adventure playground located within the school grounds. A HSE investigation found the swing had collapsed because the supporting timbers had rotted. The heavy wooden cross beam of the swing fell onto the pupil's head and neck causing spinal injuries that resulted in permanent paralysis. The school was fined a total of £50,000, and ordered to pay £90,693 in costs after pleading guilty to an offence under section 3(1) of the Health and Safety at Work etc. act 1974. Speaking after the hearing, the HSE inspector said: "this case shows how important it is that schools and other providers of play equipment maintain them in a safe condition. This tragic accident could have been avoided had the school implemented the findings of its own risk assessment.
A historic private school were prosecuted by the HSE when an investigation found that stonemasons may have been exposed to more than 80 times the daily limit for silica dust. The college needed repairs undertaking to its structure. Three stonemasons were employed by the college using a variety of powered hand tools to cut, shape and chisell the sandstone. A HSE investigation found there was a failure to take any measures to monitor or reduce the exposure of workers to silica dust or even recognise the risks created by the use of tools in the work place. Even after being informed that, a worker had developed silicosis they failed to take any action or monitor exposure levels. The college's own Health & Safety Consultant had identified the risks few years earlier. The college received a subtantial fine of £100,000 given the blatant failure to undertake adequate risk assessment and take preventative action.
The above cases show that other probable civil action that the education establishments may face, there is a real risk of action also being taken by the Regulatory bodies for health and safety breaches. Most education organisations will have systems and procedures in place. The importance of the cases demonstrate that these need to be regularly kept under review and actioned where necessary.