On 6 February, Sophee Redhead, a 25-year-old former nursery worker, was cleared at Leeds Crown Court of the manslaughter (by gross negligence) of a three-year-old child at the York College Nursery on 17 September 2012. At the time of the incident, which involved the child's neck being caught in a rope on an outdoor slide, Sophee was supervising in the outdoor play area, but was consoling another young child who had fallen over and hurt himself.
As with all workplace fatalities, the matter was first and foremost investigated by the police, who were assisted by the relevant health and safety agency, which in this case was the Health and Safety Executive (a local authority's environmental health department may also investigate such incidents).
Sophee was requested to 'voluntarily' attend a police station (clearly in the knowledge she would otherwise be arrested), where she was interviewed 'under caution' as a criminal suspect, no different from a suspected shoplifter or murderer.
Despite a full explanation to the police in which Sophee stated that she was simply doing what her job required of her, which included consoling children who had hurt themselves, and that she had had no involvement in the design, selection, risk assessment or maintenance of the playground equipment, she was nonetheless charged and required to stand trial for offences of Gross Negligence Manslaughter and offences related to the Health and Safety at Work etc Act 1974 (HSWA) - i.e. the employee's duty to take reasonable care for the health and safety of themselves and others who may be affected by their acts or omissions.
While the Gross Negligence Manslaughter offence attracts a maximum term of life imprisonment, typically, for workplace-related incidents, sentences are between four and seven years.
The Section 7 HSWA offence has a maximum term of two years' imprisonment.
Investigation and trial
For much of the 18 months Sophee was subject to the investigation and prosecution, she remained on bail. She was a young woman of previous good character, being paid a moderate salary as a nursery worker.
Despite the support from friends and family, the stigma associated with an allegation of harm to a child cannot be underestimated - Sophee had to endure it for a year and a half, her own nightmare only ending with the unanimous 'not guilty' verdicts of the jury after a three-week trial.
The fact that York College was convicted of a Section 3 HSWA offence by the same jury, and subsequently fined £175,000 and ordered to pay £45,000 in costs, indicates where the jury believed culpability or blame lay; however, not for first time - and, sadly, it inevitably won't be the last - the prosecution saw fit to prosecute an individual as well as the corporate entity, when it is clear in law (both under the HSWA and European law) that the primary duty holder is the employer, not the employee.
Is it just individual employees who are prosecuted?
While the Section 7 HSWA offence relates to allegations against employees, owners of businesses can face similar prosecutions under Section 37 of the HSWA where the incident is alleged to be attributable to their 'consent, connivance or neglect' - a maximum of two years' imprisonment of the owners being the penalty for this offence.
Owners and employees alike are liable to prosecution for the Gross Negligence Manslaughter offence.
Prevention is better than cure, but ...
Clearly, tragic incidents of this nature simply serve to encourage all businesses to redouble their efforts in ensuring compliance with health and safety legislation.
Nevertheless, in the event of a tragic incident, the need to retain expert legal advice from the outset is imperative, as investigations by the police and Health and Safety Executive for the uninitiated and inexperienced can be fraught with danger - particularly decent people's willingness to say what they believe investigators wish to hear, rather than what actually may have happened.
While all businesses will carry Employers Liability and Public Liability insurance which typically has some form of legal defence cover, it must be remembered that the choice of solicitor is yours and not the insurer's - and the requirement to select the best solicitor when you or your employees face such serious allegations is essential.
Mark Thompson and Damien Morrison were the solicitors who defended Sophee Redhead and may be contacted at Morrison & Associates on (01904) 666888