The criminal law imposes duties on both employers and suppliers to ensure that products provided for use at work are safe and free from risk. Failure to discharge these duties exposes businesses to the prospect of investigation by the regulators.
This guide was last updated in April 2018
Unlimited fines can be imposed on businesses prosecuted for breaches of such duties in the UK .
Health and safety law
Management and enforcement of health and safety law in the UK is governed by the 1974 Health and Safety at Work etc Act (HSWA). HSWA imposes a range of duties on those operating in the work environment, and makes provisions for the safe use of work equipment.
Section 6 HSWA deals with articles for use at work. These are defined as any plant which is designed to be used by persons at work, and any article intended as a component in plant. Plant is broadly defined as any machinery, equipment or appliance. The general duties created by section 6 apply to designers, manufacturers, importers and suppliers.
Designers and manufacturers are required to ensure that products are safe and do not create risks to health when used at work. This duty is limited by what is reasonably practicable, meaning that it would be open for the company to argue that it was not reasonably practicable for it to have done any more than it did to ensure the safety of the product in the event of a criminal prosecution. The implication is that any additional steps to lower the level of risk would be disproportionate given engineering possibilities and cost.
In order to discharge this central duty, manufacturers and designers must carry out product testing, or arrange to have this carried out. Any research necessary to identify safety risks in a product should also be conducted, although there is no expectation that designers or manufacturers should repeat research carried out previously by others in the supply chain so long as it remains reasonable to rely on its conclusions.
Where these duties are breached, offences are committed and criminal proceedings may follow. In the event of conviction, offenders may face an unlimited fine .
Recent legislation and guidelines reflect a belief in some quarters that the penalties for breaches of health and safety law have been inadequate in holding businesses to account and reflect an appetite for more stringent sanctions.
It is possible for a breach to be caught by both section 6 HSWA and by the 2008 Supply of Machinery (Safety) Regulations, which are discussed in more detail below. There is nothing in the 2008 regulations preventing a simultaneous prosecution under HSWA in these circumstances.
Further machinery safety requirements
The 2008 Supply of Machinery (Safety) Regulations apply to manufacturers and manufacturers' authorised representatives, and further develop the safety requirements for machinery. They prevent manufacturers from placing machinery on the market which is not 'safe'.
Machinery is broadly defined by the regulations as including assemblies, devices, components, equipment and chains and ropes for lifting purposes.
Safety is achieved if the machinery does not result in injury when properly installed and maintained and used for its intended or reasonably foreseeable purposes.
Equipment must satisfy the applicable essential health and safety requirements. This means that a risk assessment must be carried out to determine intended use and any reasonably foreseeable misuse. It must also identify any hazards that might arise from use; estimate risk on the basis of probability of a hazard materialising and the consequences of that; and apply protective measures to eliminate or minimise the risk.
Manufacturers must ensure that a technical file is completed to demonstrate a product's safety conformity. The technical file should include the specification, test results, certificates and drawings. It must also provide instructions for safe use. A declaration of conformity with EU safety requirements should be drawn up and CE marking affixed visibly, legibly and indelibly. CE marked machinery will be presumed to comply with the regulations.
The supply obligations require the manufacturer to carry out its own testing to satisfy itself that the equipment is capable of being assembled and put into service safely.
Supply of machinery which is unsafe is an offence which may lead on conviction to an unlimited fine.
A 'due diligence' defence is available, which allows the manufacturer to try to demonstrate that it has taken all reasonable steps and exercised all due diligence to avoid the lack of safety. The manufacturer has the burden of proving that the defence is made out, and will have to be able to put material before the court showing that the product has evolved with safety in mind.
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