Section 7 of the HSWA puts a duty upon employees to take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts and omissions at work.

Section 7 is actually a relatively rarely used provision of the HSWA but when it is invoked it involves the prosecution of an individual. For this very reason when such a prosecution is launched the accused needs expert and specialist legal advice from an early stage. 

When looking at a prosecution under this section there are a number of avenues that emerge as a potential defence to a section 7 Health and Safety at Work Act prosecution:

- Was the accused an employee?  This is a more factually and legally   complex area than it may appear at first sight and specialist legal advice should be sought in looking at this.

- Did the accused fail to take ‘reasonable care’ – again although this is a question of fact for the Court, it is important that this question is not concerned with how an accident occurred but rather whether care was taken.

- Did the alleged lack of care take place ‘at work’ – in other words in the course of his or her employment- the lack of care if it did not occur at work then the accused cannot be guilty.

Importantly unlike many other sections of the HSWA the question of lack of reasonable case in s7 is a matter that has to be proven to the criminal standard by the prosecution, there is no reverse burden of proof as in other sections of the HSWA.

I have defended in a number of s7 cases, the most famous of which was the successful defence of a nursery manager in a prosecution involving the death of a child in the care of the nursery, see http://www.dailymail.co.uk/news/article-2276411/Rhiya-Malin-Mothers-anger-cover-daughters-death.html.

From my experience in cases like this I have seen that it is vital to take legal advice at an early stage and for legal representation to concentrate on the issues at hand in the employees duty rather than becoming unnecessarily concerned in the mechanics or causation of any accident that may have occurred.

If you find yourself accused of this offence or any other health and safety offence and would like a free no obligation telephone conversation, please make contact via this website.