Legal spotlight - December 22

THE RECENT sentencing of a nursery manager for health and safety failures which led to the tragic death of a toddler underline the need not only for employers to ensure they have in place robust compliance policies which meet all relevant risks but also for those in positions of responsibility with the employer to ensure they are fully able, and committed, to deliver on those policies and procedures. Failure in either can be catastrophic, not only in terms reputational and financial damage but more importantly in terms of life limiting and changing consequences for all concerned.

Miranda Anderson was the manager of a child care facility in Edinburgh. In 2019, a toddler in its care choked to death. An investigation found that between May 2019 and 9 July 2019 the employer, Bright Horizons Family Solutions Ltd, failed to provide employees at the nursery with suitable instruction and supervision to adequately control the risk of choking during mealtimes. The investigation also found a number of other occasions between in the same period when staff were involved with other tasks and therefore not watching the children eat.

The 1974 Health and Safety at Work etc Act provides that employers must ensure, insofar as reasonably practicable, the health and safety of its employees and others who may be affected by its work. Following the investigation, Bright Horizons Family Solutions Limited was charged with having failed to take such steps, and in January 2022, pled guilty to the charges. Thereafter the company was fined £800,000.

However, the 1974 Act also provides that where a failure by a company is shown to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of that company, or a person who was purporting to act in any such capacity, they as well as the company, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Ms Anderson was also charged under the 1974 Act; reports state that the charge against her was that the death was attributable to neglect on Ms Anderson’s part in her capacity as the nursery manager, and that she failed to monitor staff appropriately.

Following a trial, at which evidence was heard of staffing shortages and difficulties, Ms Anderson was convicted and fined £2,000. At the sentencing, her counsel spoke of the devastation felt by Ms Anderson at the death and that she would have to live with that for the rest of her life.

The case underlines the obligations not only on employers but also on those in positions of responsibility with them. Directors, managers and other officers must take note, the corporate shield cannot be deployed to protect against personal negligence or inaction. Such personnel have obligations too; they must ensure that suitable and robust policies and procedures are in place, regularly reviewed and meet the particular risks of the business. If they are not able, or willing, to do so they should step down or at the very least speak out. The consequences could be tragic for all concerned.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit  www.pinsentmasons.com