| Introduction: | | | | Out of 75 breaches prosecuted by HSE in Primary |
| This article sets out some of the background some | | | | Schools 1997 - 2003 for which records are available in |
| and examples of prosecutions and litigation against UK | | | | HSE's Database, none nominated the Headteacher as |
| schools. | | | | the defendant. In all of them an LEA or other Employer |
| Whilst Scottish Law and its' Legal System differs from | | | | Contractor was the defendant. The picture for the |
| that in England and Wales the writ of the enforcing | | | | make up of breaches is given below. |
| and regulating body the Health and Safety | | | | This was the picture up to 2003 but this picture has |
| Executive(HSE) runs across the border and matters | | | | changed and there have been at least two actions |
| are decided in the Criminal Courts. | | | | against Heads. For a Head teacher with a criminal |
| Litigation takes place in the Civil Courts and, in the case | | | | conviction, options become limited. Even if they go for |
| of Health and Safety usually revolves around aspects | | | | a new job, Disclosure means that the conviction will |
| of the LEA. Owner, school and teachers' duty of care | | | | show on the record. So it is more and more important |
| to children. Almost all of these cases are civil actions | | | | that any Head can prove they are effectively |
| taken by parents on behalf of the child for damages | | | | managing safety. |
| for injuries subsequent to accidents. | | | | This is precisely why we at Swan Education produced |
| Prosecutions: | | | | the Head teacher's Safety Management Toolkit. |
| The Health and Safety Commission is the actual | | | | HSC/HSE says exactly what they mean and are |
| agency of which HSE is the executive branch have | | | | transparent. They also produce masses of clearly |
| published an Enforcement Policy which sets out very | | | | written information free. |
| clearly the parameters for, and circumstances in, which | | | | References are given to a large selection of these |
| the HSE should take action to enforce the Health and | | | | which are relevant in the Toolkit "Useful Links". |
| Safety Law and Regulations. | | | | We said earlier that no one has ever been prosecuted |
| Enforcement of H&S law in the past targeted | | | | for following good practice. You may not have the |
| "Directors" and "Company Secretaries" and clearly this | | | | formal documentation but if you have taken care that |
| had a business and commercial bias. | | | | you have records this always helps. |
| The current HSC Enforcement Policy appears to be | | | | Reasonably Practicable Safety |
| targeting enforcement action against managers as well | | | | Your school must be safe "so far as is reasonably |
| as Directors and now seems to be focused on both | | | | practicable" This simply means that you cannot work |
| the public and private sectors equally. This is also | | | | miracles and that safety has to be judged against |
| clarified in the Guidance to the Management of Health | | | | what is achievable. However, lack of money is not an |
| and Safety at Work Regulations which talks about | | | | adequate excuse if a Risk Assessment shows that |
| "organisations" being schools, colleges, voluntary bodies, | | | | something needs to be done. |
| councils etc.as well as companies. Personal liability to | | | | Reasonably practicable does mean that if the costs of |
| prosecutions under the safety law has been extended | | | | protecting completely against a particular risk is too |
| to person who exercise a similar role to directors and | | | | expensive measured against possible outcomes or not |
| company secretaries. This would certainly include | | | | possible, then you have a defence. However, all of this |
| Heads as the CEO of their schools but could also be | | | | is a judgement and must be measured against good |
| interpreted to mean Directors/Assistant Directors, or | | | | practice. |
| those persons in the school employer's organization | | | | Unilateral decisions about what is or is not reasonably |
| directing and organising the H&S function. | | | | practicable should be guarded against. Take advice or |
| In short any person or any organisation can be liable to | | | | at least research the matter and remember to record |
| prosecution under H&S laws and regulations for a | | | | any findings. |
| range of offences. | | | | You can aim for perfection over a measured time |
| Staff, or others can be liable for putting the health and | | | | scale. It all depends on the base that you are starting |
| safety of others at risk by acting negligently or | | | | from. HSE generally aims to encourage and advise. |
| interfering with safety equipment. | | | | They generally prosecute only in extreme situations. |
| Others can be liable for advising or conniving to | | | | Litigation |
| promote unsafe acts. | | | | A good Safety Management System protects you |
| However,the main area where a cold chill runs down | | | | from Litigation and also ensures any HSE is a very |
| the spine for teachers and schools is the potential for | | | | remote possibility. |
| a child to be killed and a manslaughter charge to be | | | | The courts are far more frequently used nowadays |
| made. | | | | but even if you are involved in an action if you have |
| Three points here are worth considering: | | | | taken the prior precaution of having a documented |
| 1. All the manslaughter charges so far made have | | | | system the chances of success of any claimant are |
| been on the basis of gross negligence. | | | | much reduced. |
| 2. HSE does not bring this charge it has a protocol with | | | | Litigation in the courts has demonstrated that teachers |
| the police where both of them run TWO investigations | | | | and the school/employer cannot be held responsible |
| side by side and the police hand a completed file to | | | | for every accident in school hours, or at any time that |
| the DPP or the Procurator in Scotland. In England and | | | | the children are in the control of schools e.g. during |
| Wales it is the DPP who makes any charge of | | | | educational visits. |
| manslaughter and gross negligence is acknowledged | | | | The courts accept that some accidents happen no |
| by lawyers to be difficult to prove. However teachers | | | | matter how much care is taken or how well planning |
| have been jailed for manslaughter and last year a | | | | and supervision is carried out. |
| Head teacher was fined for offences against Safety | | | | Where an accident happens in such cases, the |
| Laws. | | | | teacher/school cannot be held liable. |
| 3. An old lawyer's adage adopted by H&S | | | | Good Practice is a defence and the Headteacher's |
| professionals is that no one has ever been prosecuted | | | | Safety Toolkit provides you with proof of your good |
| for following good practice. | | | | practice and guidance on what is acceptable. |
| Good Practice | | | | Some important points flowing from the following |
| Follow good practice and you will be secure. | | | | cases which can give a good general guide to the |
| Almost all the manslaughter charges made against | | | | headteacher are: |
| teachers have been involved with offsite visits. I | | | | - Is an accident "foreseeable" or not? |
| estimate about 1-2,000,0000 school visits have been | | | | - Is the risk very low and are the costs of mitigating |
| made over the same period that there have been | | | | the risk reasonable and proportionate? |
| about 6 prosecutions for manslaughter. | | | | - In "horseplay" there is consent and it needs |
| The most recent one was made against a teacher | | | | recklessness or a high degree of carelessness to |
| who was leading a visit in Cumbria where a 10 year | | | | breach the duty of care. |
| old was killed in a "plunge pooling" incident and the | | | | - Does the school have systems in place to reduce |
| leader was charged, found guilty and received a | | | | risk and is it following good or accepted practice? |
| sentence of one year in jail. | | | | - Was the activity leading to the accident "play" or |
| HSE actions are much more likely to be for breaches | | | | something else. |
| of the law and regulations. | | | | Areas most frequently addressed by the court during |
| Educational Visits carry with them a serious direct risk | | | | litigation include: |
| to staff of prosecution if they have been negligent. | | | | - Checks on staff competence and training |
| Even if no one is physically harmed, and thus there is | | | | - Assessment of what is generally accepted as good |
| no "death or harm by gross negligence" criminal | | | | practice |
| charges to be faced, but if there could have been ,the | | | | - Cross checking that suitable preparations and |
| HSE can take action against individuals under H&S law. | | | | precautions been put in place. The following are a few |
| This has already happened with one Head teacher in | | | | important court cases regarding good practice and |
| Scotland. | | | | duty of care in H&S matters which may, by example |
| Good Practice for Visits has been clearly spelled out in | | | | illuminate some of the matters decided in the courts. |
| publications by the DfES and the Scottish Executive. If | | | | Court Cases: |
| you go to the HSE's new website at you can have | | | | 2003 Simonds v Isle of Wight LEA |
| access to the full scope of good practice as regards | | | | A five year old returning to school from lunch at home |
| visits. | | | | went to play unsupervised on swings in the school |
| Primary Schools and breaches of the H&S law. | | | | grounds and broke his arm. |
| The actual numbers of prosecutions from 1999 -2003 | | | | The LEA/school won and the judge held that : |
| are actually very small only about 25 in total are | | | | - there was no "causative event" for the accident. |
| recorded as relating to Primary Schools on the HSE | | | | - the child was playing alone and that the school had |
| Database. | | | | an adequate way of managing the swings. |
| The following is a breakdown of what these | | | | - no playground could be free of hazard and it was as |
| prosecutions were for: | | | | unreasonable for the school to lock the swings as it |
| Breach Against Number 1999 -2004 | | | | was to rope off trees in a playing field. |
| HASAWA 8 | | | | - since the mother had not delivered the child back into |
| Electricity Regs 3 | | | | the care of the school there was no breach of duty |
| Manual Handling Regs 2 | | | | on the part of the school. |
| Management HSW Regs 5 | | | | 1997 Wilson V the Governors of the Sacred Heart RC |
| Construction Design Regs 3 | | | | Primary School |
| Work Equipment 3 | | | | A child going home at end of school day was struck in |
| Other 3 | | | | the eye by another child's coat . |
| So you can see that the main features of | | | | The Governors won and the judge held that: |
| prosecutions is for offences under the Act itself and | | | | - Whilst the school supervised at break and lunchtimes |
| for breaches of the Management of Health and | | | | it was not commo practice for children to be tightly |
| Safety at Work Regulations. | | | | supervised at end of day. |
| An important aspect is that many of these breaches | | | | - The accident could have happened just as easily |
| involved contracts, so it is clear that your control of | | | | outside the school gates |
| these needs to be secure. | | | | - The school had not breached it's duty of care or |
| If you are visited by an inspector they will not generally | | | | acted negligently. |
| prosecute immediately. | | | | 1998 Mullin v Richards |
| Though the Health and Safety Commission(HSC) of | | | | Two children had a "swordfight" with plastic rulers. One |
| which HSE is the executive branch, say that they do | | | | of the rulers broke entering a pupil's eye and causing |
| use prosecution as an important lever to help drive | | | | permanent damage. |
| their policy targets forward. | | | | The claim for damages was dismissed on the basis |
| Inspectors are much more likely to give advice and | | | | that: |
| information or in the case of breaches to issue | | | | - There was insufficient evidence to prove that the |
| improvement or prohibition orders | | | | accident was foreseeable in what had been no more |
| Enforcement | | | | than a childish game. |