Ahmad v Health and Safety Executive

Whether a person is an employer for the purposes of the Health and Safety at Work Act 1974 is a question of fact. It is not conclusively determined by whether workers are described as independent contractors. The tribunal must examine control over the work and workers, and the mutual obligations to provide, perform and pay for work.

Fresh evidence does not make a conviction unsafe merely because it further impeaches an important witness. The appellate court must assess its significance against the evidence as a whole. A trial judge need not give a special direction on alleged witness bribery where the jury have been fairly reminded of the competing accounts and the evidence bearing on credibility.

The appellant, owner of Kings House in Oldham, was convicted after a jury trial before HH Judge Edwards at the Crown Court at Manchester. The convictions comprised failure to comply with Regulation 19(1) of the Construction (Design and Management) Regulations 2015 and two offences under the Health and Safety at Work Act 1974. The prosecution alleged that he controlled unsafe construction work and employed the workers on site.

On appeal, he relied on fresh banking and handwriting evidence said to undermine Juma, a prosecution witness, and challenged the absence of a tailored jury direction concerning an alleged attempt to bribe another witness. The central issue was whether either ground rendered the convictions unsafe.

1. Appeal dismissed. The court admitted the fresh evidence under section 23 of the Criminal Appeal Act 1968, but held that it provided no basis for doubting the safety of any conviction.

2. The question whether the appellant was an employer under the Health and Safety at Work Act 1974 was one of fact. It was not finally answered by characterising the workers as independent contractors. The jury had to assess all the circumstances, including whether he had the right to direct what work was done, and how, when and where it was done, and whether there was mutuality of obligations concerning work and payment.

3. The fresh evidence strongly supported the conclusion that Juma had received payments and had signed the ledger. It would therefore have further damaged Juma’s credibility. However, that issue formed only a small part of the evidence about control. Independent and contemporaneous evidence, together with the appellant’s own lack of credibility, provided overwhelming support for the finding that he controlled the works and workers. The evidence was incapable of rendering the convictions unsafe.

4. The trial judge was not required to give a modified R v Lucas direction ([1981] QB 720) about the alleged payment to Alan. The jury had been reminded of the appellant’s denial and of material capable of undermining Alan’s account. No further direction was necessary, and any omission concerning Saif’s evidence could not have made the convictions unsafe in the context of the whole case.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and admitted the fresh evidence for the purpose of determining its effect on safety.
• Crown Court at Manchester: on 21 June 2018, following a jury trial before HH Judge Edwards, convicted the appellant of one offence under the Construction (Design and Management) Regulations 2015 and two offences under the Health and Safety at Work Act 1974.