Regina v. Associated Octel Co. Ltd.

The House of Lords considered the scope of an employer's duty under section 3(1) of the Health and Safety at Work etc. Act 1974 and the relationship of that duty to the contractual status of persons carrying out work on the employer's premises. The court held that the duty in section 3(1), enforced by section 33(1), is defined by reference to the conduct by the employer of his undertaking and is not displaced simply because work is carried out by independent contractors.

The court distinguished the duty under section 3(1) from vicarious liability, emphasising that the latter depends on the contractual relationship and the control test for employment categorisation serves a different purpose. Whether an activity is part of the conduct of the employer's undertaking is a question of fact and ordinarily depends heavily on the place and integration of the work with the employer's business; where the activity is part of the undertaking the employer must take reasonably practicable steps to prevent risk, subject to the defence of reasonable practicability.

The trial judge should have left the factual question to the jury, but on the evidence available a properly directed jury would inevitably have convicted; accordingly the proviso to section 2(1) of the Criminal Appeal Act 1968 was applied and the appeal was dismissed.

The appellants, Associated Octel Co. Ltd., were criminally prosecuted for offences under section 3(1) and section 33(1)(a) of the Health and Safety at Work etc. Act 1974 following an accident in which a contractor's employee was badly burned while repairing a chlorine tank on Octel's site. The Crown relied on particulars that Octel had failed to control the manner and method by which maintenance and repair works were carried out, exposing persons not in its employment to risks.

Background and facts:

• Octel operated a major-hazard chemical plant. A small contractor (Resin Glass Products Ltd) carried out repairs under Octel's "permit to work" system.
• A contractor's employee, using acetone in an open bucket and working by means of an ordinary electric lamp, suffered burns when the lamp broke and ignited vapour.
• The prosecution led evidence that Octel's permit to work process had been operated perfunctorily and that precautions such as specifying a safety lamp, providing a closed acetone container or forced extraction had not been required.

Procedural posture: At trial the defence submitted there was no case to answer because the injured man was employed by an independent contractor and the work was part of the contractor's undertaking. The trial judge ruled that having the tank repaired formed part of Octel's conduct of its undertaking and, after Octel called no evidence, the jury convicted and the company was fined £25,000. The Court of Appeal (Criminal Division) rejected Octel's appeal. The matter was appealed to the House of Lords.

Issues framed:

• Whether the conduct of the employer's undertaking under section 3(1) extends to activities carried out by independent contractors on the employer's premises;
• Whether the absence of a right to control an independent contractor removes the activity from the ambit of the employer's undertaking;
• Whether the trial judge's direction deprived the defendant of a fair trial and, if so, whether the Criminal Appeal Act 1968 proviso could be applied.

Court's reasoning: The House of Lords held that section 3(1) is concerned with the way the employer conducts his undertaking and is indifferent to the contractual characterisation of those performing the work. If an activity (including having work performed by contractors on the employer's premises as part of maintenance and repair of the plant) forms part of the conduct of the employer's undertaking, the employer must stipulate for and take reasonably practicable measures to avoid risks to others, subject to the statutory defence that measures were not reasonably practicable. The common law idea of vicarious liability and the control test for employment relationships address different questions and cannot be used to narrow the statutory duty. The court observed that whether an activity is part of the undertaking is a question of fact for the jury; although the trial judge should have left the factual issue to the jury, on the undisputed evidence a properly instructed jury would inevitably have convicted, so the proviso to the Criminal Appeal Act 1968 was applied and the appeal dismissed.

Legal significance: The decision clarifies that an employer's statutory duty to secure health and safety under section 3(1) can extend to activities done by independent contractors where those activities form part of the conduct of the employer's undertaking, and that the employer cannot avoid the duty merely by contracting out the physical performance of work.

Appeal dismissed. The House of Lords held that the employer's duty under section 3(1) of the Health and Safety at Work etc. Act 1974 is defined by the conduct of the employer's undertaking and is not negated merely because work is carried out by independent contractors; whether an activity forms part of the undertaking is a question of fact for the jury. Although the trial judge should have left that question to the jury, on the evidence a properly directed jury would inevitably have convicted, so the proviso to section 2(1) of the Criminal Appeal Act 1968 was applied.

Convicted at trial (Crown Court) and fined £25,000; appeal to the Court of Appeal (Criminal Division) dismissed; further appeal to the House of Lords ([1996] UKHL 1) which dismissed the appeal and affirmed the conviction.