Section 37 – Prosecution of a Director

Getting ready for Section 37 Prosecution

A construction company and an engineering firm have both been found guilty of breaching the Health and Safety at Work Act 1974 after the death of a self-employed man who fell to his death on a building site in 2008.

The 40 year old victim, who was contracted by Febrey, was working dismantling a scaffold ladder access platform ready for the installation of the roof and staircase on the fourth floor when he fell 19m to the ground, narrowly missing a carpenter working directly below.

The man suffered multiple injuries, including a fractured skull. He was taken to Hospital but died of his injuries two days later.

Following a HSE investigation, it was found that Febrey Ltd had inadequate and ineffective health and safety management arrangements and that there was no communication, information and instruction provided to the workforce. Although there had been repeated warnings by its consultants, the management team on site was not adequately trained in health and safety. This led to persistent and systematic failures to control the risks at this site.

The investigation also found that Carillion, as principle contractor, was aware of the failing of safety management at Febrey but that they failed to gain any improvement.

Both firms pleaded guilty to breaching sections 2 (1) and 3 (1) of the Health and Safety at Work Act 1974. Carillion was fined a total of £130,000 plus £52,500 in costs. The judge said Febrey would have been fined £250,000 but had gone into liquidation so was fined a total of £85.

It was announced that the director (Michael Febrey) would be sentenced at a later date after admitting another health and safety breach.  At the time, he was still in business as Febrey Structures Ltd after buying cranes and other assets from the liquidators for £92,000.

Section 37 – Prosecution of a Director

An HSE investigation found Febrey Ltd had inadequate and ineffective health and safety management arrangements and there was little or no communication, information and instruction provided to its workforce.

The management team on site was not adequately trained in health and safety, despite repeated warnings by its health and safety consultants. This led to persistent and systematic failures to control risks at the site.

Mr Febrey was aware of the failings within his company – his workforce had raised concerns about the site – yet he failed to take responsibility for the company’s failings which allowed this culture to continue.

Carillion Construction Ltd failed to ensure the safety of its employees and those under its control. The company, as principal contractor at the site, was made aware of and had detected many failings in the safety management of Febrey Ltd. However, it failed to gain improvement from the company.

Michael Febrey of 3a Rockleaze Road, Bristol pleaded guilty to breaching two counts of Section 37(1) of the Health and Safety at Work, etc. Act 1974. He was fined £20,000 and ordered to pay £5,000 in costs.

Speaking after the hearing, HSE Inspector Anne Marie Orrells said:

“Febrey Ltd did not manage health and safety. I can only echo the sentencing remarks made by Judge Thomas, that: ‘…there was a lack of proper and adequate expertise, training and direct responsibility for matters of health and safety. The personnel, the time, the resources and the will were all lacking to address the reoccurring problems of people working unsafely at height as necessary. Disregard for basic safety measures were left unchallenged. No one took ownership of the issue. In such an atmosphere, not only the inexperienced and the vulnerable, but the experienced like Mr Samuel, can become sloppy and complacent. It was against that background and in that culture that the accident happened.

“This culture was allowed to continue without proper managerial intervention and for that reason Mr Febrey, as the managing director, must bear a portion of direct responsibility. There was a void in the company’s organisation, which Mr Febrey must have recognised, but did not rectify”

Prosecution of individuals

The following is taken from The Health and Safety Executive’s Policy Statement on Enforcement

… enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted. In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so in accordance with this policy. Where appropriate, enforcing authorities should seek disqualification of directors under the Company Directors Disqualification Act 1986.

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