Lack of machine guarding leads to fatality and huge fines

An employee of a packaging solutions manufacturer died after being trapped in the moving parts of an unguarded machine. The UK’s Health and Safety Executive (HSE) led the investigation into this fatal incident, which occurred in May 2020 at the company’s Derbyshire premises.

The employee, 46-year-old Paul Whalley, was able to enter the opening of a plastic conversion machine. This contained several unguarded mechanisms, where he became trapped. Emergency services were brought in, responding to the incident by cutting conveyor belts and rollers. Sadly, this wasn’t enough to save the man’s life, who passed away at the scene from crush asphyxia.

A condemning conclusion reached by HSE

The HSE’s investigation concluded that Reflex Flexible Packaging Ltd had not carried out a suitable and sufficient risk assessment for the machine’s operation. At a hearing in Derby Crown Court last month, the company was fined £277,500 and ordered to pay £20,000 costs.

“This tragic incident could have been easily prevented had a suitable and sufficient risk assessment taken place and the actions identified implemented,” remarked HSE inspector Lee Greatorex. “The accident is made worse by the fact that the company’s own internal health and safety department had identified a lack of risk assessments eighteen months before the accident, but no follow-up action was taken to remedy this failing.”

“This wholly avoidable incident was caused by the failure of Reflex Flexible Packaging Ltd to guard the dangerous parts of the machine Mr Whalley was operating. It was obvious that these moving parts were not guarded and presented a clear risk of injury. Had the company fitted suitable guarding, this fatality would not have occurred.”

Findings disputed by company CEO

Ian Kendall, the co-founder and CEO of the parent company Reflex Group, has taken issue with the HSE’s findings, as reported by print industry website PrintWeek.

“Obviously this was a tragic incident and my thoughts are with everyone who was affected,” said Kendall. “I think it’s important to point out that the machine was guarded and it had the manufacturer’s guarding on it. Not one of these machines installed anywhere else in the UK or worldwide has any additional guarding, and in terms of all the machinery we run we would deem this a very low risk machine. It’s small and it just runs slowly.”

“It is also pertinent that despite issuing the site with an improvement notice relating to the adoption of stop locks (lockable power switches) the HSE didn’t issue notices to put extra guarding on the remaining Woodbank machines at the site.”

“Our barrister told us that there is in no other jurisdiction that Reflex Group currently operates in, and probably in the world, where we would be prosecuted for what happened. Just in the UK. In the UK the Court of Appeal has determined that ‘the acts of employees are irrelevant’. Therefore, responsibility inevitably falls on the employer.”

In his statement, Ian Kendall has focused on the manufacturer’s guarding being in place on the machine. However, under PUWER, the actual responsibility for appropriate machine guarding falls on the employer, not the manufacturer. We’ll return to this point later; it’s an important factor as to why the company was prosecuted.

How PUWER adherence would have prevented this fatality

While failure to conduct risk assessments was noted by the HSE and is required under the Management of Health and Safety at Work Regulations 1999, PUWER provides specific requirements for the work equipment. From reading the HSE report, it seems two underlying breaches that would have existed in the UK’s Provision and Use of Work Equipment Regulations (PUWER):

• Regulation 6: Failings to carry out a PUWER assessment. This section stipulates that a thorough inspection of work equipment must be carried out by a competent person.
• Regulation 11: This part of the legislation requires employers to put in safeguards where practicable to stop the movement of any dangerous parts of workplace machinery before any person can reach dangerous parts.

 

In addition to PUWER legislation, the British Standard European Norm (BS EN) has a role to play here. While the BS EN standards are not a legal requirement, they can be used to show compliance with PUWER and several of them could have been applied to prevent this tragedy:

• BS EN 14120: Requirements for the design and construction of guarding
• BS EN 13857: Safety distances to prevent access to hazards.
• BS EN 13855: Positioning of safeguards considering stopping times.

 

Risk assessing this equipment before completing the purchase or before first use, using our UKCA/CE Audit or PUWER assessment service would have highlighted the lack of guarding under Regulation 11 of PUWER and advised on guarding which meets the relevant BS EN standards. The appropriate guarding solution depends on the frequency of access and should comply with the BS EN standards mentioned above, as well as others.

When it comes to the frequency of access, the standards would recommend fixed guards if access were needed less than once a week. These should be secured to the level where they can only be removed with tools and under an appropriate lockout/tagout (LOTO) procedure.

If access was required more frequently, then we’d recommend movable guards with interlocking. This would satisfy the BS EN 14120 standard, and we’d recommend guard positioning and safety distances as set out in BS EN 13857.

However, this advice alone may not prevent access to danger zones before the equipment is in a safe state if the stopping time and safeguarding distances are not adequate. This is why other methods should be considered, such as solenoid-locked interlocking or stopping performance improvements as detailed in BS EN 13855.

Employer responsibilities

Although this prosecution was under the Health and Safety at Work Act s2(1), the equipment clearly did not meet the essential safety requirements for guarding. This is a major point as to why a prosecution was brought against Reflex Flexible Packaging Ltd.

These safety requirements are mandated by the Machinery Directive (2006/42/EC) or Supply of Machinery (Safety) Regulations 2008 and embedded into PUWER via regulation 10. Therefore, using a defence that the guarding was as the manufacturer provided is inadequate. While the manufacturer is required to guard it correctly, these regulations place a mandate on the company using the equipment to ensure it conforms at all times with the appropriate guarding requirements.

We would also have caught this at the point of supply; the UKCA/CE auditing service we offer would have satisfied PUWER’s regulation 10, ensuring it conforms with any essential requirements relating to the design and construction of work equipment performed at the manufacturer’s premises before taking delivery.

It’s of vital importance to check equipment at the point of purchase to ensure the manufacturer has met the minimum requirements of all applicable UK regulations. With an eye on the long term, a positive audit means you can use and maintain such machinery in a safe manner.