A Head Teacher’s Safety Management Toolkit Article
HEALTH AND SAFETY PROSECUTIONS AND LITIGATION IN UK SCHOOLS Introduction:
This article sets out some of background some and examples of prosecutions and litigation against UK schools.
Whilst Scottish Law and its’ Legal System differs from that in England and Wales writ of enforcing and regulating body Health and Safety Executive(HSE) runs across border and matters are decided in Criminal Courts.
Litigation takes place in Civil Courts and, in case of Health and Safety usually revolves around aspects of LEA. Owner, school and teachers’ duty of care to children. Almost all of these cases are civil actions taken by parents on behalf of child for damages for injuries subsequent to accidents.
The Health and Safety Commission is actual agency of which HSE is executive branch have published an Enforcement Policy which sets out very clearly parameters for, and circumstances in, which HSE should take action to enforce Health and Safety Law and Regulations.
Enforcement of H&S law in past targeted “Directors” and “Company Secretaries” and clearly this had a business and commercial bias.
The current HSC Enforcement Policy appears to be targeting enforcement action against managers as well as Directors and now seems to be focused on both public and private sectors equally. This is also clarified in Guidance to Management of Health and Safety at Work Regulations which talks about “organisations” being schools, colleges, voluntary bodies, councils etc.as well as companies. Personal liability to prosecutions under safety law has been extended to person who exercise a similar role to directors and company secretaries. This would certainly include Heads as CEO of their schools but could also be interpreted to mean Directors/Assistant Directors, or those persons in school employer’s organization directing and organising H&S function.
In short any person or any organisation can be liable to prosecution under H&S laws and regulations for a range of offences.
Staff, or others can be liable for putting health and safety of others at risk by acting negligently or interfering with safety equipment. Others can be liable for advising or conniving to promote unsafe acts.
However,the main area where a cold chill runs down spine for teachers and schools is potential for a child to be killed and a manslaughter charge to be brought.
Three points here are worth considering:
1. All manslaughter charges so far made have been on basis of gross negligence.
2. HSE does not bring this charge it has a protocol with police where both of them run TWO investigations side by side and police hand a completed file to DPP or Procurator. In England and Wales it is DPP who makes any charge of manslaughter and gross negligence is acknowledged by lawyers to be difficult to prove.
3. An old lawyer's adage adopted by H&S professionals is that no one has ever been prosecuted for following good practice.Follow good practice and you will be secure.
Almost all manslaughter charges made against teachers have been involved with offsite visits.I estimate about 1-2,000,0000 school visits have been made over same period that there have been about 6 prosecutions for mansalughter.
HSE actions are much more ikely to be for breaches of law and regulations.
Primary Schools and breaches of H&S law.
The actual numbers of prosecutions from 1999 -2003 are actually very small only about 25 in total are recorded as relating to Primary Schools on HSE Database. The following is a breakdown of what these prosecutions were for:
Breach AgainstNumber 1999 -2004 HASAWA 8 Electricity Regs 3 Manual Handling Regs 2 Management HSW Regs 5 Construction Design Regs 3 Work Equipment 3 Other 3
So you can see that main features of prosecutions is for offences under Act itself and for breaches of Management of Health and Safety at Work Regulations. An important aspect is that many of these breaches involved contracts, so it is clear that your control of these needs to be secure.
If you are visited by an inspector they will not generally prosecute immediately. Though they say that they do use prosecution as an important lever to help drive HSC’s targets forward.
Inspectors are much more likely to give advice and information or in case of breaches to issue improvement or prohibition orders
Good news about enforcement
Out of 75 breaches prosecuted by HSE in Primary Schools 1997 - 2003 for which records are available in HSE’s Database, none nominated Headteacher as defendant. In all of them an LEA or other Employer/Contractor was defendant. The picture for make up of breaches is given below.
HSC/HSE says exactly what they mean and are transparent. They also produce masses of clearly written information free. References are given to a large selection of these which are relevant. No one has ever been prosecuted for following good practice. You may not have formal documentation but if you have taken care that you have records this always helps.