Section 40 is not your friend

I have blogged on this issue before, but too many employers gloss over it. Section 40 is not your friend, and you need to know why.

Section 40 of the Health and Safety at Work Act 1974 (HSWA) places the burden of proof on an accused in offences consisting of a failure to comply with a duty or requirement to do something “so far as is practicable, or so far as reasonably practicable, or to use the best practicable means to do something”.  The Act provides that the accused must prove that it was not practicable, or not reasonably practicable to do more than was done, or that there was no better practicable means than that used to satisfy the duty or requirement.

The validity of Section 40 has been challenged in the Court of Appeal, and it has survived that challenge. There are several reasons for that, but one of the most interesting (in my opinion) is this:

the reverse burden of proof takes into account the fact that duty holders under the Act have chosen to engage and be in charge of a commercial activity or work which is subject to regulatory controls.  It is therefore justifiable to ask the duty holder to show that it was not reasonably practicable for him to have done more than he had in fact done to avoid or prevent a risk

as supported by the practical view:

the facts relied upon by the defence should not be difficult to prove as they are within the knowledge of the defendant. More particularly, in complex cases it may well only be the defendant that has the relevant expertise to assume this burden and therefore enforcement in these types of cases might become impossible if the defendant had only an evidential burden