Health and safety at work - Casual workers - Compensation - Contracts of employment
R (on the application of Health and Safety Executive) v Shah Nawaz Pola: CA (Crim Div) (Lord Justice Moses, Judge Hedley, Judge Russell, Recorder of Preston): 7 April 2009
The appellant (P) appealed against his conviction and sentence for offences under section 33(1)(a) of the Health and Safety at Work etc Act 1974 in failing to discharge a duty pursuant to section 2(1), and under section 33(1)(c) in contravention of the Work at Height Regulations 2005.
P had taken charge of the building of an extension to a house. A number of unqualified foreign nationals were paid relatively small daily sums to work at the site. P provided their working materials and sometimes brought their lunch and provided transport to pick them up. One of the workers fell from a raised platform and suffered severe brain injuries leaving him with permanent disabilities. P claimed that the workers did not fall within the scope of the 1974 act, as they were not employees pursuant to section 53. In summing up, the judge identified evidence of control while the workers were on site and ruled that the jury would be entitled to conclude that the relationship of employer and employee existed. P was convicted, and a compensation order was made against him under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000. P submitted that: (1) when summing up, the judge merely considered the issue of control and erroneously failed to consider whether there was any evidence that when the workers did turn up for work they were under any obligation to remain for any period of time. He argued that the judge failed to clearly identify the issues on which the jury were required to reach conclusions; (2) on the basis of the information available, the judge should not have made the compensation order. He contended that the information was partial and inadequate and that the complexities raised by the instant case took it outside the ambit of those cases for which the 2000 act was designed.
Held: (1) The judge had failed to explicitly direct his attention to the essential issue of whether the workers that did turn up for work on any particular day were under an obligation to remain at work for the day they were paid. However, it was clear that he had failed to do so because of the way the defence case had been canvassed before him. P had contended that there was insufficient mutuality of obligation between himself and the workers, and had referred to evidence relevant only to the question whether there was an overarching obligation to turn up to work. Such evidence did not deal with the question relevant to the instant case, namely whether the workers were under a contract of employment during the periods when they were at work. In those circumstances it was not surprising that the judge had made no specific reference to the relevant question. In any event, it was clear that each worker who turned up for work or had been brought to work in transport provided by P would not regard himself as free to quit the site during the day. The obvious inference of turning up for work would be that the worker expected to work during that day and to be paid for that work at the end of it. In addition, it would be odd if P bothered to provide transport and lunch for the workers if they felt free to work for a short time and then leave before the end of the working day. Accordingly, there was evidence on which a jury could reasonably conclude that once a worker had turned up at the beginning of the day, he was under an obligation to remain. In addition, although the judge had failed to clearly explain to the jury the relevant issues on which it had to reach conclusions, it would have been clear from the submissions and the summing up that they had to be sure that there was a contract of employment with the workers. Finally, as it was clear that the workers were required to remain at work for the whole day, it was unnecessary for the judge to draw the jury’s attention to the need for evidence to prove it.
(2) The judge had been entitled to and was right to make the compensation order. There was a clear causal link between P’s conviction and the injury in question, and the judge had available to him sufficient evidence of the gravity of the injury. In addition, the judge had considered that he could have regard to the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases and had satisfied himself that the victim could not benefit from an insurance policy and was unlikely to have an effective civil remedy in damages. P had the means to satisfy the order, and the order was just and proper in the context of P’s proven culpability, R v Inwood (Roland Joseph)  60 Cr App R 70 CA (Crim Div) considered.
R Smith QC, P Greaney (instructed by Kamrans) for the appellant; S Jackson QC, I Wright (instructed by Addleshaw Goddard) for the respondent.