Section 36 of the Health and Safety at Work Act is an important provision that deals with the issue of offences that are committed due to the fault of another person or entity. It states that if an individual or an organisation, which we’ll refer to as ‘A’, commits an offence because of an act or default of another person or entity, which we’ll refer to as ‘B’, then ‘B’ may also be charged and convicted of the offence, as well as, or instead of ‘A’.
The provision applies to various scenarios and can have significant consequences for both A and B. For example, if ‘A’ is a company director who authorises illegal activities, and ‘B’ is an employee who carries out those activities on behalf of the company, both ‘A’ and ‘B’ may be held liable for the offence.
The provision also applies to Crown servants, such as civil servants, who can be prosecuted even though the Crown as the employer, is immune from prosecution. This is an important safeguard that ensures that those responsible for committing offences are held accountable, regardless of their position or status.
To illustrate the application of this provision, consider the example of a Health and Safety Consultant who prepared a risk assessment for a client on a woodworking machine. Unfortunately, an employee of his client injured his hand while operating this machine. It was later discovered that the machine’s risk assessment fell significantly short of the required standards, contributing to the accident. The assessment failed to identify the danger of the machine snatching at pieces of wood. Although the H&S Consultant had many years of experience, he was unfamiliar with this type of machinery.
In this scenario, the H&S Consultant and the client may be liable for the offence. The H&S Consultant may be charged and convicted of the offence due to his act of preparing an inadequate risk assessment, while the client may be charged and convicted of the offence due to their act of allowing the machine to be operated despite the known risks.
Section 36 is an important provision that ensures those responsible for committing offences are held accountable, regardless of their position or status. Therefore, it is essential to understand the implications of this provision to ensure that appropriate measures are taken to prevent offences from being committed due to the fault of another person or entity.