Improving industry guidance and managing regulatory action

Recently Chris Craggs MCFT Chairman had the opportunity to speak with Barbour EHS, on first hand experience with a Health and Safety prosecution, he guided them through the incident, the court process, and the broader challenges of improving industry guidance and managing regulatory action. Chris was joined by Paul Verrico, Global Head of the Environmental, Health and Safety team at Eversheds Sutherland, whose own research explores the dangers of retribution in the face of human error.

Read Chris's thoughts following the seminar:

Thankyou to all those who have commented favourably on the insights afforded by this webinar – including those who didn’t attend but commented anyway. Happy to share a few more observations, all my own:

(to those who didn’t listen in, this webinar discussed legal points – answered by Phil Crosbie – and personal experience – answered by me, relating to a multi-defendant prosecution brought under the UK Health & Safety at Work Act (HASAW) at Southwark Crown Court in April 2023, following the tragic fatality of a foodservice technician working on an appliance in a hospital in December 2017. MCFT, as the installer of the appliance, was one of the defendants.)

Applied Learnings

Landmark Definition of Scope and Remit of a Foodservice Equipment Technician

One of the few implemented learning-actions from this tragedy, against both apathy from regulatory bodies and even resistance from an industry association (on the grounds it might “cause confusion and risk undermining the regulations”), was the creation of a Code of Practice which, for the first time, sets out the remit and boundaries of the work of FoodService Equipment (FSE) technicians. Honoured to contribute, alongside fellow defendants, to the small but landmark work by ceda https://share.google/fpfqRJ3SvpYE8tSog - special thanks for Peter Kay for pulling this together and getting it live. 

We now have a framework set out which can serve as the point of reference for customers, equipment manufacturers, contractors and, most of all, service companies and technicians.

(webinar attendees heard that the role and boundaries of competence of foodservice equipment technicians had not previously been set out and, specifically, the fact that most are not “qualified electricians” – a phrase which has a specific definition https://electrical.theiet.org/wiring-matters/years/2017/67-september-2017/electrical-qualifications/. There was no inference that MCFT’s technician was not trained, simply that he was not an “electrician”.)

If this might Code be now deemed Approved (an ACoP) by the regulators, that would endorse its value in a court of law. (Alternatively, dissent and an explanation would also be useful.)

Non-applied Learnings:

1. Secondary Safety Devices

As mentioned in the call, the progress we'd really like is the mandatory requirement for secondary protection; I continue to find difficult to understand the official response of the body charged with regulation of electrical installations in the UK that safety provision is adequately covered by good “workmanship” – it’s a clear misunderstanding of the purpose of secondary protection : if something has gone wrong (as inevitably must happen) with the installation, the operation, the maintenance, the environment in which this appliance is located, then, rather than death or severe injury, minimal harm is done (There has, apparently, been no recorded fatality from a circuit protected by RCD.) 

To mix soapboxes, the Netherlands (no, we don’t have the same rules and regulations across the EU) have had mandatory protection for “wet areas” since the 1970s. We have mandatory RCD protection in our homes. How someone can argue that the “war zone” of a commercial kitchen would not be safer with secondary protection is beyond me.

As noted in the call, MCFT require secondary protection before all new installations.

2. Equipment Instructions (and see Machinery Directive below)

The Machinery Directive, prior to 2016, stated that manufacturers’ instructions “must be followed”, since 2016 only require they be “taken account of”. Setting aside the clear inference that the previous requirement was inappropriate, Webinar attendees heard:

1. A requirement that the appliance be installed by a “qualified electrician”; this was sloppy and imprecise phrasing, the manufacturer and the signatory to the Declaration of Conformity (the award-winning individual is still in the industry) would have absolutely known that 95% of FSE installations are carried out by FSE technicians, not by “qualified electricians” – I assume they implied a competent technician (although even that was not previously defined).
2. A clearly late addition to the manual to require installation of an RCD – when, as the declaration signatory would have known, this is not within the scope of FSE technicians. 

We continue to see nonsensical translations in equipment instructions, for example requiring adherence to German codes (when contacted, the Original Equipment Manufacturers were not interested in “reprinting leaflets”, never mind all the legacy installations still at risk – I hope nothing goes wrong but will have a field day if it does.)

As noted, MCFT’s solution is to 

1. Clearly communicate the services requirements to be provided by the customer and require signed agreement to provide same before any order is accepted.
2. During installation, tick each line in the manual – or cross, with explanation – and, where not within FSE techs remit, make clear that this is not included – and then take a documentary photograph of manual as a record.
3. Callout when key information not provided at time of sale (see Machinery Directive below).

3. HSE process

I accept that the HSE operates under financial constraints but there is patently not a mandatory requirement to learn lessons and try and prevent recurrence – potential tragedies which could be avoided.

Black Box Thinking: what were the root causes of this incident, how might similar be prevented or mitigated?

My perception is that, expediently, deeper investigation disappears with a/ obvious transgressions – bang to rights on one count - and b/ guilty pleas.

1. Machinery – design, instructions – no investigation, no follow up.
2. Service technicians – defined scope, credible training and accreditation.
3. Customers – awareness of responsibility to monitor contracts (see PUWER below).

4. The Machinery Directive requires

1. Manufacturers of machinery design out hazards.
2. To the extent there is residual risk, provide in-appliance mitigation (e.g. fit RCD within appliance, not request an installer provide the safety net).
3. If risks remain, clear signposting in manuals and on actual appliance (warning stickers).
4. This information (e.g. need for RCD, “must be installed by qualified electrician”) to be communicated at point of sale, not when box opened by installer on site. (In this case, the purchaser might have appointed an electrician to fit the RCD or sought an alternative solution, unnecessary additional time and expense.)

Why did this manufacturer specify requirement for RCD?

1. The court heard that no other Waste Disposal Unit (WDU) manufacturers required RCD protection – in fact, this same manufacturer did not require RCD protection for any of their other WDU’s. 
2. Instructions required the WDU not to be exposed to hot water or detergent (potential damage to seal) – in a washing-up sink?
3. As heard on the webinar, when confronted, a proper evaluation prompted a very expensive, world-wide recall – clear confirmation that there was something intrinsically wrong with the design and manufacture of this unit which could not be retrospectively addressed.

It’s clear that there were known design vulnerabilities, recognised when the Declaration of Conformity was signed. (For those interested, I’d be happy to share details off-line on the exact design weaknesses.)

Further Observations

Inverse Burden

Paul commented on the unique Inverse Burden of Proof of the HASAW – defendants have to prove they did everything which was reasonably practicable in order to be found not-guilty.

This slam-dunk – there is ALWAYS something more which could have been done - has taken away some focus from other legislation – not least the Provision and Use of Work Equipment Regulations 1998 (PUWER). This requires all work equipment to be maintained by suitably qualified personnel at appropriate intervals. In our everyday experience, this is largely ignored: 

1. No enforcement (in foodservice, it could readily come under EHO remit).
2. As the result of the ease of HASAW cases, very few PUWER prosecutions (one judgement reported this year around a 2023 fall from an airport pallet lifter).

Monitoring Contractors

As mentioned during the webinar – but largely ignored since the court case – the hospital was found guilty of breaches under the HASAW and a significant factor was the absence of any contractor monitoring process. It was accepted that there had been a suitable initial assessment on selection but the argument that, because this was a specialist field of maintenance, the owners could not be expected to monitor contractors was found lacking. 

Its clear that a risk-based (evaluate cadence and depth based on trade and risks) audit process is a minimum requirement. This is not something we experience, our customers spot-checking our work, - and we would that they did.

Court proceedings 

During our preparation, Paul asked me how I felt about our co-defendants and I was able to answer that, whilst not collaborating, there was no animosity or resentment between us. Perhaps because, in this case, one party had pled guilty, we all felt that the matter should have stopped there. Initiates might be surprised to know there’s also a tacit agreement that fellow defendants don’t go after each other – doing the prosecution’s work for them. 

Overall

I confess that, for many years, I had the unsubstantiated view that justice would prevail and that truth and lessons would out from a formal court process. Extremely naïve.

1. It’s a human process – beset with frailties or excellence as any other field – and down to the characters and the performance on the day. (Paul mentioned the Prosecution Barrister, a pre-eminent serious criminal case barrister – evidenced in the aggressive approach to witnesses – not for the faint-hearted.)
2. It’s expedient – whether the prosecution or the defendant’s – no one wants it any more complicated than necessary. And the UK court system is creaking – facilities, workload, manpower.
3. There is no brief to discover and address the root cause – it’s simply not on anyone’s agenda (or budget).

I’d be intrigued to know whether the examining magistrate legal system might have evinced more and led to more applied improvements.

Finally

Inquest and Civil Claim

Paul briefly mentioned the Inquest – back in 2019 – no effort to apportion blame, simply to ascertain cause of death – and yet, in the absence of a thorough review, full legal investigation, initial findings are made: where the Manufacturer eventually pleaded guilty, MCFT were blamed by the Coroner for failing to fit an RCD.

The inquest, already 2 years after the fatality, will influence the outcome of the Civil Claim – and apportionment of any financial settlement between defendants – this feels anachronistic.

Expert Witnesses and Barristers

Paul mentioned the role of expert witnesses and their impartiality – I commented on the fact that it’s probably not unusual not to have access to expert witnesses who are deeply knowledgeable about a niche industry – further compounded by having three co-defendants – and the process extending over considerable time. There was a meeting of the witnesses – to identify the matters on which they agreed – which were many – whilst still leaving lots of areas for robust debate. (As noted, commissioned by the legal team, their contact with the defendant is supposed to be at one remove – difficult when trying to brief on the nuances of a new industry…) 

Another aspect which struck me as less than optimal was the convention that the defendant chooses their barrister. It may be that seasoned defendants, who have run the gamut of chambers, have their preferences, even for particular cases. To the novice, this seem arcane – and when I asked if I might speak with short-listed candidates before deciding, this was “unusual”. I am happy that, in no small part due to Paul’s short-list, we ended up with a first-class, very thorough team but it’s another example of the human frailty in a system which is, in every other respect, absolute.