Greenfeeds Limited prosecution – lessons to be learnt

In December 2016, worker Nathan Walker was instructed by managers at Greenfeeds Limited in Leicester to clean a slurry tanker containing semi-liquid pig feed by entering the tank and using a pressure washer to clear the residue. On entering the tank, Mr Walker was overcome by the fumes and quickly became unconscious. His colleague Gavin Rawson attempted to assist him but also became unconscious due to the carbon dioxide inside the tanker. Both workers drowned and were very sadly pronounced dead at the scene.

This tragic case highlights not just the human cost of failing to prioritise safety at work, but also the serious consequences for the organisations and individuals found to be at fault. Those convicted as a result of this incident following lengthy court proceedings included not only the organisation concerned but also two directors and one employee. 

• Greenfeeds Limited was found guilty of corporate manslaughter, on the basis that the two deaths were caused by gross failings in the management of the organisation, including a failure to respond to concerns raised by staff about the dangerous practice of entering the slurry tankers. The organisation was fined £2 million.
  
• Greenfeeds Limited was also found guilty of an offence contrary to section 2 of the Health and Safety at Work Act 1974 (HSWA 1974), having failed to take all reasonably practicable steps to ensure the health, safety and welfare of its employees.
  
• One of the directors, Gilian Leivers, was found guilty on a personal basis of gross negligence manslaughter. The jury accepted evidence that her personal knowledge and encouragement of the practices adopted meant that her actions amounted to a gross breach of her duty of care to both men and this was a direct cause of their deaths. She was sentenced to thirteen years in prison as a result.
  
• Gillian Leivers and her husband Ian Leivers, who was also a director of the company, were also found guilty under section 2 HSWA 1974, as a result of the personal liability established under section 37 HSWA 1974. The jury found that the health and safety offence committed by Greenfeeds Limited had occurred as a result of their personal connivance, consent or neglect. Ian Leivers received a custodial sentence of twenty months.
  
• Transport manager Stewart Brown was handed a twelve-month suspended sentence for breaching section 7(a) of the HSWA 1974, having failed to take reasonable care for the health and safety of Nathan Walker and Gavin Rawson through his actions and omissions as an employee.

Offences
There are a number of elements that make up the offence of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007, namely:

• the defendant is a qualifying organisation (e.g. a government department, a corporation, police force, partnership, trade union or employer’s association);
• the organisation owed a relevant duty of care to the deceased (here, a duty owed by an employer to its employees);
• there was a gross breach (meaning where the conduct falls far below what is reasonably expected in the circumstances) by that organisation and the management or organisation by senior management was a substantial element of that breach; and
• the gross breach of the organisation’s duty caused or contributed to a death.

The common law offence of gross negligence manslaughter allows individuals to be prosecuted for causing or contributing to a death. There must be a duty of care owed by the defendant to the deceased and a gross breach of that duty which must be considered a substantial cause of the death. In R v Singh [1999] Crim LR 582 it was outlined that, ‘the circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death’.

Section 2 of the HSWA 1974 places a general duty on employers to ensure, so as far as is reasonably practicable, the health, safety and welfare of all their employees at work. This includes the provision and maintenance of safe equipment, machinery and systems of work and the provision of information, instruction, training and supervision.

Section 7 of the HSWA 1974 outlines the general duties of all employees at work irrespective of the obligations on the employer. Employees must take reasonable care for the health and safety of themselves and others who may be affected by their actions and omissions at work. This includes a duty to co-operate with their employer.

Failure to discharge the duties listed in sections 2 to 7 are offences under section 33 of the HSWA 1974. The maximum penalty for these offences in the magistrates’ court is an unlimited fine or up to six months imprisonment or both. In the Crown Court, the maximum penalty is an unlimited fine or imprisonment not exceeding two years or both.

Section 37 HSWA 1974 also makes clear that where a health and safety offence is committed by a body corporate, any director, manager, secretary or other similar officer will be guilty of that offence, if it was committed with the consent, connivance or neglect on the part of that individual.

The responsibilities of all
It is vital that directors, senior managers and employees across all sectors understand their legal duties and responsibilities for the health, safety and wellbeing of others. The investigation of Greenfeeds Limited uncovered numerous failings including the absence of safe methods of working and a lack of safety equipment, relevant staff training and adequate risk assessments. The company also did not have a named health and safety officer. The Health and Safety Executive (HSE) Principal Inspector stated:

“This incident could have been easily prevented by those in control by assessing the risks and putting appropriate control measures in place.  It should serve as a reminder of the importance of an effective health and safety management system and the devastating consequences where these are not implemented and monitored.”

It is of note that Stewart Brown was also prosecuted but acquitted of two offences of gross negligence manslaughter, reflecting the very serious view taken of his contribution by the prosecution. This perhaps explains the decision to prosecute an individual employee despite the HSE’s guidance that, ‘where the employer appears primarily responsible for the circumstances giving rise to potential prosecution, action should normally be taken against the employer alone. However, where the employer has taken all reasonably practicable steps to ensure compliance then action against the employee should be considered’.

Employers must be alive to the fact that although they may have good governance and adequate health and safety procedures and systems in place, should they fail to monitor their employee’s compliance with these systems in practice and take appropriate action where necessary, they will still be liable for prosecution.

While it remains the case that it is far easier to bring a corporate manslaughter prosecution against smaller organisations, where directors are directly involved in day-to-day operations, it is essential that organisations of all sizes have effective governance arrangements in place to ensure the safety of employees and all those affected by their operations. While the need to avoid tragic cases such as this should be motivation enough, directors, managers and employees all need to understand their own potential liability should they fail in their personal responsibilities for safety.

For more information

If you would like to find out more on this topic, please contact our regulatory team at regulatory.team@anthonycollins.com.

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