The right to work dangerously
28 January 1997
15 March 2013
20 November 2013
25 July 2013
25 February 2013
15 January 2013
David Harrel, senior partner with SJ Berwin & Co, would welcome the opportunity to go into a gorilla compound and mingle with the apes. He has some reservations about doing the same thing with tigers but, with the right sort of supervision, says he would be prepared to enter the tigers' den as well.
Given the legal battle he has recently masterminded and the landmark victory it has resulted in, some might say Harrel has a taste for living dangerously.
Harrel was the solicitor instructed by gaming club and zoo owner John Aspinall in his unique legal battle over the rights of keepers at his two zoos in Kent to be allowed to go into compounds with the wild animals.
The case ended in a major triumph for Aspinall, Harrel and the other members of his legal team, John Taylor QC and Robert Fookes. They won a High Court ruling from Mr Justice Turner that Canterbury City Council cannot, as it had attempted, ban keepers from entering the compounds at Howletts and Port Lympne Zoos as part of their work in "bonding" with the animals.
The subject matter of the action was unique. The judge upheld an earlier industrial tribunal decision that the council ban was unlawful.
Although at face value the dispute was about the rights of keepers to go into cages with wild animals, Harrel says the decisions, which the council has now indicated it will not appeal against, have wide-ranging general implications over the implementation of safety at work laws. They have revealed an degree of flexibility in the application of the provisions of the Health and Safety at Work Act 1974, which the council had purported to be using when it imposed the ban.
Mr Justice Turner made it clear that he was in no doubt that the Act was not there to outlaw certain work activities purely because they could be classed as being dangerous, but to ensure that whatever activities an employer was engaged in should be carried out in the safest way possible.
In other words the ruling has made it clear that a local authority would be exceeding its powers if, as Canterbury attempted to do, it ordered employers to cease a practice which, although inherently dangerous, the employers considered a vital part of their business. The council's duty is to ensure not that the activity is stopped, but that it is conducted in as safe a way as possible.
In this case the council had taken the view that it was possible for tigers to be looked after without keepers going into the cages with them.
However, in taking that view they were overlooking the wider aims of Aspinall and his team, whose object is not simply to keep tigers but to foster a bonding between the animals and their keepers which is considered vital if at some stage in the future they were to be put back into the wild.
"You have to look at what a business is trying to achieve," says Harrel. "It would not be sufficient, for instance, to say that deep-sea diving is inherently dangerous and should therefore be banned.
"If there is a risk then it has to be justified in the context of the task that those responsible are trying to achieve. Take, for instance, the case of those engaged in repairing high-voltage overhead cables or repairing dangerous machinery, where the only way the repairs can be carried out entails removing guards."
Harrel believes that the judgment in this respect has considerably clarified the approach local authorities should take over the implementation of the 1974 Act.