It is #FarmSafetyWeek 2019. We all know that farms can be dangerous places, however safety conscious and careful you are. But it is not just the physical danger presented by machinery and livestock but the toll that working long hours, working alone, and unpredictable weather and market conditions can take on the decision-making ability and mental health of farmers and farm workers. So #FarmSafetyWeek is a good starting point to consider who is responsible for the physical and mental wellbeing of those who work for you and the farming environment in which they work.

The Health and Safety Executive (“HSE”) has announced that they are going to restart pro-active inspections of farms. This reverses their previous approach and may mean that your farm and premises are inspected, even if no incident has been reported. The HSE’s purpose is to ensure that there are safe systems of work in place for the benefit of everyone living, working on, and visiting farms. HSE states that it “believes everyone has the right to come home safe and well from their job” and has a mission statement to “prevent work-related death, injury and ill-health”; no-one would disagree with these aims.

Agriculture remains a priority sector for the HSE because it experiences more fatalities and injuries (including incidents involving children) than any other industry. In 2017 / 2018, the agriculture, forestry and fishing sector recorded 29 fatalities and an estimated 13,000 workers were injured. Unfortunately, these figures have not improved and the 2018 / 2019 report (published 15 July 2019) confirms 39 fatalities, with transport (overturning vehicles or being struck by moving vehicles) causing most deaths.

 Responsibilities

If an incident occurs, the HSE will investigate and can prosecute those found responsible. The way in which your business is structured can have a significant impact on who will be investigated – and potentially prosecuted – in the event of an incident.

There are various types of business structure, meaning that the responsible person is likely to differ:

  1. Sole traders / individuals: the individual owner of the farm / business can be investigated and prosecuted in their personal capacity;
  2. Partnerships: in a standard partnership, each partner is jointly and severally liable for the acts of the partnership. This will mean that it can be the individual partners that are investigated and prosecuted even though they may claim to be a sleeping partner or not responsible for the day to day running of the business.There are some limited circumstances in which a partnership may be investigated and prosecuted for a criminal offence despite not being a separate legal entity. In these circumstances, when considering financial penalties, it will be assets which are identifiable as belonging to the partnership that are looked at.
  3. Limited Company and Limited Liability Partnerships (LLP): a prosecution here can be two-fold. Firstly, the company or LLP is an independent legal entity and can therefore be investigated and prosecuted in its own right. In addition, the individual directors can also be investigated and prosecuted in their personal capacity. 

In addition to understanding the corporate elements to a prosecution, it is also worth noting that the HSE can prosecute individuals such as managers in certain circumstances for specific offences. When considering your responsibilities, you need to make sure that your workforce understand their responsibilities as well and the risks to which they may be exposed.

Understanding how your business is structured and operates will help you to identify and manage risk on your farm.

You are responsible for providing a safe working environment for all those working on or visiting your farm, and for ensuring they follow necessary protocols for keeping themselves and their co-workers safe. The HSE will investigate the whole incident, including the behaviour of the individual, but it is the overall approach of the business, the policies and procedures in place, and the specific steps that you, as the employer / business owner have taken to minimise any risks that will be particularly scrutinised.  

HSE inspections cover all regulatory breaches even if no incident reported

It is not just incidents where individuals are injured or killed that are investigated by the HSE; its proactive approach to inspections will mean that breaches of other health and safety regulations may also be investigated. For example, a recent HSE hearing involved a company that had failed to ensure that a potato grading machine could not be restarted before establishing that an individual using it was not exposed to any danger. 

Your starting point for identifying, assessing, and then minimising risk is to look at your whole business, from the machines and equipment you use, the space in which, and how and machinery and equipment is operated, through to the training and the processes to keep everyone who comes onto your farm, safe.

The HSE may take further action following an on-the-spot inspection, or in response to an actual incident. If regulatory breaches are found, an investigation is likely to follow and could result in enforcement or a prosecution. Later this week we will consider the impact and likely outcomes of a prosecution and give some of our top tips of how to minimise this risk.

If you would like to discuss anything from this article, are concerned about your business or have received notification of an HSE inspection please contact one of the Wright Hassall team.

About the authors

Keri Harwood Solicitor

Keri is a solicitor in our agricultural sector. Having converted to law, after first completing a Masters in Environmental Sciences she has a particular interest in specialising in agricultural and environmental disputes.

Tariva Thomas Associate

Tariva is a member of the Tax and Financial Services Litigation team dealing with disputes relating to investments, tax avoidance schemes and pensions. Tariva advises corporates, individuals, financial institutions and FCA regulated firms.