Case Updates: June 2000

Case updates:
Health and Safety Outside the Workplace
Manslaughter: Corporate negligence
TUPE: Statements of intention
 
Health and Safety Outside the Workplace
The High Court has ordered the HSE to investigate a road traffic accident. In August 1997, Mr Akhtar was driving down a street in his home city of Manchester when a forklift truck ran into his car. The raised forks of the truck punctured his windscreen and stabbed Mr Akhtar in the neck, killing him.
Following the normal police investigation into the road traffic accident, the Crown Prosecution Service prosecuted the forklift driver and his employer, Moores Timber Merchants Ltd. The forklift driver received a six-month conditional discharge and three points for driving without a licence. Moores also received a six-month conditional discharge for instructing their employee to drive without a licence.
HSE failed to investigate the incident because the inspector involved believed it was a matter for the police or the local authority (who were responsible for enforcing health and safety on Moores' premises). However, Mr Akhtar's brother sought a judicial review of this decision, and the court ruled that, since the accident occurred outside the workplace, investigation was a matter for the HSE and police.
Facilities managers should accept that their responsibility for safety extends beyond the factory gates, and ensure their risk assessments cover travelling. However, given the HSE's already scarce resources, it remains to be seen whether it will be able to investigate anything other than the most serious accidents.
 
Manslaughter: Corporate negligence
The Crown Prosecution Service (CPS) is to review its decision not to bring manslaughter charges against a director following the death of Mr Simon Jones on his first day at work at Shoreham Docks. He died when the crane grab, used to remove the cargo of bagged stones from the ship's hold, closed on his head and almost decapitated him when the driver accidentally pulled the wrong lever.
Mr Timothy Jones (Simon's brother) finally won his campaign for a judicial review, and in March this year, the High Court ruled that the CPS had acted unlawfully in its decision-making. Its decision was based on its belief that the negligence of the managing director (who allegedly instructed the unsafe system of work being used) did not amount to "gross negligence" - as required for manslaughter charges.
The CPS erroneously thought that it needed evidence of "recklessness" to prove gross negligence, requiring the defendant to be aware of the risks incurred. However, the Court held that the test is an objective one, such that the risk only needed to be reasonably foreseeable to the average person (in practice, the members of the jury).
The decision questions whether this was a one-off error by the CPS or a symptom of a systematic failure to apply the correct test. If it is the latter, this case could have far reaching implications and result in the review of past decisions. It is also more likely that more manslaughter charges will be brought against directors (and hence companies) following future fatal accidents.
R -v- DPP (ex parte Timothy Jones)
 
TUPE: Statements of intention
In transactions involving FM companies, the question of whether TUPE applies is often of central importance. We are constantly reporting changes in emphasis on TUPE, particularly on the question of whether there is a "relevant transfer". This usually involves an analysis of all the facts in the transaction to see whether a relevant transfer of assets and employees has taken place.
In past cases, the courts have also hinted at the fact that the legitimate intention and motive of the parties involved can be relevant in this process. In particular, we previously reported the case of ECM -v- Cox, where the Court of Appeal noted an apparently deliberate intention to try to avoid TUPE by not taking on employees. The Scottish Court of Sessions has now gone one stage further, confirming and widening this decision.
The Court's view was that if a serious statement is made - for example, during tendering - that TUPE is intended to apply, then this will be taken into account as a relevant factor. A contention that the business/contract involved will be run in an identical fashion to the previous business/contract will also be taken into account. Although the Court could never say that such statements would preclude them from finding whether TUPE applied, such statements are important and should be taken into account. FM contractors should therefore consider carefully in each transaction whether it is prudent to give bold statements, which may assist a court in finding that TUPE will or will not apply.
Lightways (Contractors) Limited -v- Associated Holdings Limited
This document is for general guidance and research purposes only, and does not purport to give professional advice. Please check the date at the top of the article; the Workplace Law Network retains historic articles for general research.