Proceeding against employees
Proceeding against employees: HSWA s7
An employee may commit an offence if he contravenes the general duties imposed by s7(a) and 7(b) by failing:
- to take reasonable care for the health and safety of himself and other persons who may be affected by their acts or omissions at work (s7(a)); and
- as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with. (s7(b));
Section 7 places important duties on the employee irrespective of the obligations on the employer. Furthermore, it should be noted that the section is intended to protect not only fellow employees but other persons who may be affected by the employee’s actions, and imposes a duty of cooperation in the performance of duties and requirements placed on any person, not just his employer.
The duty imposed under Section 7(a) is expressed in terms that are commonly used in civil law, rather than criminal law. Although there is no case law to assist in the interpretation of "reasonableness" in this context, the extent to which the risk could/should have been foreseen will be an important factor in defining the existence of the duty.
The duty under Section 7(a) is restricted to acts or omissions "at work", which is defined in Section 52(1) HSWA.
The requirements of Section 7(b) are limited to "relevant statutory provisions" as defined in S53 HSWA, so that they cannot be used in relation to a failure to comply with legislation which does not fall in that category, for example the Road Traffic Act.
Definition of employees
The definition of an employee/self-employed person is found in the section on the Status of Workers.
As the section relates only to actions by employees as defined in s53, it is important to establish that a contract of employment, written or implied, exists; and that the person against whom action is being considered is at work and carrying out that work in the course of his employment.
This evidence is of particular importance in cases where is it thought that so-called contract staff are working in the establishment, that is staff taken on for short periods, but who may be either employed by an agency or self employed. The use of contract staff is increasing, and if action is justified against such a worker it may be that it will have to be taken either under s8 or s36 (1).
Circumstances in which S7 might appropriately be used
Where the employer appears primarily responsible for the circumstances giving rise to a potential prosecution, action should normally be taken against the employer alone. However, where the employer has taken all reasonably practicable steps to ensure compliance then action against the employee should be considered.
Consideration should be given to whether employees in practice followed the systems of work alleged by the employer to be in force.
Consideration should be given to any previous warnings to the employee, and whether the offence by the employee created an obvious risk. You should see also Prosecuting individuals for information on the prosecution of individuals.
Trade Union liaison
The requirements of this section have in the past received the full support of trade unions, who have appreciated that employees must play a significant role in securing the reduction of hazards, ill health and accidents arising from work activities. Consultation with workers’ representatives is therefore important when action under this section is contemplated.