R v Associated Octel Co Ltd

An employer’s duty under section 3(1) of the Health and Safety at Work etc. Act 1974 concerns the employer’s own conduct of its undertaking. It does not depend upon vicarious liability or the contractual status of those carrying out the work.

Whether an activity forms part of the undertaking is a question of fact. Relevant matters include where it occurs and whether it is integrated with the business. On-site maintenance performed by an independent contractor may form part of the employer’s undertaking. The employer must then stipulate reasonably practicable precautions and cannot rely upon its failure to reserve control.

Activities performed entirely separately on another person’s premises will ordinarily fall outside the undertaking. No rigid formula replaces the statutory language.

Associated Octel Co Ltd operated a chemical plant at Ellesmere Port. During annual maintenance, an employee of a specialist contractor suffered serious burns in a flash fire while repairing the lining of a chlorine tank. The contractor’s work was governed by Octel’s permit-to-work system, but the system had not identified or controlled the risks arising from acetone and unsuitable lighting.

Octel was convicted of offences under sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974 and fined £25,000. The trial judge ruled that having the tank repaired formed part of Octel’s undertaking and effectively removed that issue from the jury. The Court of Appeal dismissed Octel’s appeal.

The central issue before the House was whether work performed by an independent contractor formed part of the conduct of Octel’s undertaking and, if so, whether the trial judge’s failure to leave that factual question to the jury required the conviction to be quashed.

1. Appeal dismissed unanimously; conviction affirmed. Lord Hoffmann delivered the leading speech. Lord Mackay of Clashfern LC, Lord Goff of Chieveley, Lord Jauncey of Tullichettle and Lord Mustill agreed with his reasons.

2. Per Lord Hoffmann, section 3(1) of the Health and Safety at Work etc. Act 1974 imposes a personal duty upon an employer concerning the conduct of its undertaking. It is not a rule of vicarious liability. The contractual distinction between employees and independent contractors is therefore not decisive.

3. The proper question is whether the activity which created the risk formed part of the employer’s undertaking. That is a question of fact. The place of the activity will ordinarily be very important and may be decisive, but the statutory language admits no rigid substitute. Cleaning, maintenance and repair carried out by contractors on the employer’s premises as an integrated part of its business may fall within the undertaking. Work performed by another person entirely separately, such as repairs at an independent garage or manufacturer’s factory, ordinarily will not.

4. Where contracted work forms part of the undertaking, the employer must stipulate reasonably practicable conditions needed to avoid risks. It cannot omit to reserve or exercise control and then rely upon that omission to deny responsibility. Reasonable practicability may, however, limit the supervision reasonably required over a specialist contractor. Lord Hoffmann approved the approach in Reg v Mara [1987] 1 WLR 87 and rejected the circular control-based reasoning in RMC Roadstone Products Ltd v Jester [1994] 4 All ER 1037.

5. Having the chlorine tank repaired was capable only of being regarded rationally as part of Octel’s undertaking. Nevertheless, that factual question should formally have been left to the jury. The tank belonged to Octel’s plant; the maintenance was planned by Octel; the contractor’s workers were integrated into its operations; and Octel controlled permits and supplied safety equipment and lighting.

6. Applying the proviso in section 2(1) of the Criminal Appeal Act 1968, the House was satisfied that a properly directed reasonable jury would without doubt have convicted. No evidence could realistically have produced a negative answer on whether the repair formed part of Octel’s undertaking. The omission in the summing-up therefore caused no basis for allowing the appeal.

1. House of Lords: Dismissed Octel’s appeal unanimously and affirmed the conviction, applying the proviso in section 2(1) of the Criminal Appeal Act 1968.

2. Court of Appeal (Criminal Division): Dismissed Octel’s appeal against conviction and rejected its submission that there had been no case to answer. No citation is stated in the judgment.

3. Trial before His Honour Judge Prosser: The jury convicted Octel under sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974. Octel was fined £25,000.