Pola v The Crown (Health and Safety Executive)

A casual worker may be employed under an individual contract of employment while actually working, although neither party is bound to offer or accept work outside that period. Mutual obligations during the working stint establish a contract. Control then determines whether it is a contract of employment rather than a contract for services.

A jury should be directed separately on those questions and on the evidence relevant to each. A defect in directions will not make a conviction unsafe where the necessary conclusion was plainly available on the evidence. A compensation order under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 is not confined rigidly to simple cases if causation, loss, means and justice can be assessed fairly.

The appellant was convicted at Bradford Crown Court of health-and-safety offences arising from a building-site accident in which a Slovakian worker suffered severe and permanent brain injuries. The appellant disputed only whether he was an employer for the purposes of the Health and Safety at Work Act 1974.

He appealed against conviction on the grounds that there was no evidence of a contract of employment and that the jury directions were inadequate. He also renewed his application for leave to appeal against a £90,000 compensation order made for the injured worker. The central questions were whether the evidence permitted a finding of employment during casual daily work, whether any defect in the summing up rendered the verdict unsafe, and whether the compensation order was properly made.

1. The appeal against conviction was dismissed. A worker need not be engaged under an overarching contract requiring the employer to offer work or the worker to accept it. The relevant question was whether, during a day on which the worker attended, there was an individual contract. Mutual obligations could arise because the worker undertook to work and expected payment for that work. Control then assisted in deciding whether that contract was one of employment rather than for services.

2. The judge should have addressed expressly whether a worker who attended was obliged to work and remain for the paid working day. The jury directions also insufficiently separated the questions whether a contract existed and whether it was a contract of employment. Those were errors, particularly because the appellant’s status as employer was the only live issue.

3. The errors did not make the verdict unsafe. There was evidence on which a reasonable jury could infer that workers who came, or were brought, to the site to work from 9 am to 5 pm were obliged to remain and work for the day in return for payment. It was unrealistic to suppose that they were free to leave the site at will during the day. The remaining indicators of employment had been canvassed before the jury.

4. Leave to appeal against the compensation order was granted, but that appeal was dismissed. Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 encourages compensation where appropriate and does not impose an inflexible rule that only simple cases qualify. The judge had sufficient evidence of serious injury, a clear causal link with the offence, no practicable civil alternative, and evidence that the appellant could pay. Giving compensation priority over other financial orders, the £90,000 order was just and proper.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction. It granted leave to challenge the compensation order, but dismissed that appeal also.

• Bradford Crown Court On 24 May 2007, convicted the appellant of offences under the Health and Safety at Work Act 1974 and made a £90,000 compensation order for the injured worker.