Consumer Product sector: health & safety update

At the end of September, a major UK supermarket chain was fined after health and safety failings led to a worker falling from height, in June 2014. A Health and Safety Executive (“HSE”) investigation found that no risk assessment or method statement had been produced prior to carrying out the work. Guilty pleas were entered by different entities within the group, with a fine totalling £500,000 plus costs at Liverpool Crown Court.

In Scotland, a well-known food manufacturer was recently fined £70,000 following health and safety breaches at its Morayshire factory. The sentence came after a worker’s hand was crushed in machinery. Although a fault in an alarm warning system had previously been identified, there had been a failure to take action to dissipate the risk.

Both of the above cases relate to offences and prosecutions as a result of HSE investigations, under the general provisions of sections 2 and 3 of the Health and Safety at Work Act 1974. However a recent case of note for the consumer product industry where the HSE became involved related to the far less prosecuted section of the Act, section 6, which imposes specific and extensive safety duties on manufacturers, distributors, suppliers and retailers.

The case involved a prosecution earlier this year brought against an overseas manufacturer and UK supplier of machinery. An HSE investigation found that the machinery had recently been supplied, did not comply with the relevant British standard and was not safe to use, resulting in injury to the consumer. Both the manufacturer and supplier of the product separately pled guilty under section 6 of the Act and received fines.

The scope of section 6 of the Act and the approach taken by the HSE in this case to enforcement, are particularly pertinent in light of recent publicity surrounding product recalls, with current high profile instances involving mobile devices and white goods. The HSE has the power and has demonstrated willingness to prosecute cases arising from failings on the part of those involved in the process, whether that be manufacturing, distribution, supply or retail, where employees, contractors, or even the end users of the goods, are exposed to risk of harm with no need for actual harm to have occurred.

Further, such cases are a reminder not just of the duties owed by companies concerned with the manufacturing and supply of products but also of the HSE’s power to take enforcement action against non-UK entities. There is no need for the entity to even have a place of business in the UK if the safety of the end users in the UK may be affected. With significantly increasing fines for health and safety, it is an ever-increasing commercial risk that organisations need to be mindful of.

Prosecution and enforcement developments in this area of regulation will be discussed at CMS’ inaugural Health, Safety, Environment and Food Safety Conference. The event will take place on 16 November at CMS’ UK Headquarters in Cannon Place. Click here for more information.