Bereaved sister of electrocuted workman takes case to Ombudsman

Martin Shipton

The sister of a workman who was electrocuted while repairing a malfunctioning lamppost says she will go to the Ombudsman after the head of Health and Safety Executive admitted the body had made a crucial error in the handling of the case but said it could do no more.

Anthony Thomas, 42, from Neath, was working on the Heads of the Valleys road near Merthyr Tydfil in September 2016 when he was killed.

It took until 2025 for his family to learn that no prosecution would take place in connection with his death.

In a complaint to the HSE, Mr Thomas’s sister, Karen Thomas, stated: “The conclusion of South Wales Police’s and the HSE’s joint criminal investigation, and the HSE’s subsequent criminal investigations, have taken an unacceptable period of nine years to conclude, by which time our parents have sadly died.

“During the initial joint investigation the HSE failed to ensure that all relevant statements and evidence was secured to ensure that a full consideration of all the facts would be available, as and when, the HSE was given primacy to investigate.

“As I understand it, the HSE did not object to SWP’s decision to close the investigation without providing the Crown Prosecution Service [CPS] with a full file of evidence to consider a charging decision. If it is the HSE’s position that they were unaware of this, it is my opinion, based on it being a joint investigation, that they should have been fully aware of all the facts, evidence and conclusions.

“I see no point in having joint criminal investigations if the HSE is not aware of the full facts. This also appears contrary to the agreed ‘Memorandum of Understanding’ between the police, CPS and HSE.”

Memorandum of Understanding

In his ruling on Ms Thomas’s complaint, Michael Bone, Director of the HSE’s Inspection Division, said: “A Memorandum of Understanding document between SWP and HSE was produced specifically for the joint investigation into the work-related death of Anthony. This was based on the framework of the Work-Related Death Protocol and was signed at the start of the investigation by senior representatives of both organisations.

“Both parties agreed to carry out a joint and parallel investigation into manslaughter and health and safety offences, considering both individual and organisational failures. As part of this agreement, lines of enquiry would be taken forward either jointly where applicable, or independently by the identified authority following relevant senior agreement. HSE would assist in identifying relevant corporate material/documentation.

“Despite this signed agreement, our records show that SWP requested HSE not to pursue separate lines of enquiry relating to potential corporate failings until primacy was handed over, and that HSE followed this instruction. Under such circumstances, it would be expected that HSE would inform the Police that this course of action could prejudice any subsequent legal proceedings under health and safety legislation.

“Having examined all the relevant paperwork I can find no record of HSE informing SWP of this and no explanation of why this was not done. I therefore agree that we should have escalated our concerns regarding the potential impact of this on our investigation to a senior level within SWP. On this occasion, we appear to have fallen short of the standards expected of us and I sincerely apologise for this omission.”

Accountable

Ms Thomas escalated her complaint to the third and final tier within the HSE, arguing that someone within the organisation should be accountable for the error.

Rejecting this further complaint, HSE chief executive Sarah Albon stated: “Having carefully reviewed the correspondence in this matter, I can fully understand why it is that you feel that HSE could, and should, have done more to fully investigate this tragic accident at an earlier stage of the process. In particular I have read Mr Bone’s response and his explanations relating to HSE’s investigative approach, which I find to be comprehensive.

“Having undertaken this review, I acknowledge that HSE followed an instruction, from the Police, that may have been detrimental to or certainly brought challenges to our subsequent lines of enquiry and evidence gathering and I agree, in this instance, the Police should have been challenged on this stance. Therefore, I agree with Mr Bone, who upheld this element of your complaint and extend my own apologies for this omission, on the part of HSE and investigation colleagues.

“At this point however, there is unfortunately nothing that can be done to address this omission. Once HSE assumed primacy the team did consider what steps could be taken to gather additional, admissible, evidence. Unfortunately, owing to the passage of time it was no longer practicable to gather some of the further evidence.

“Whilst a review of the case did result in additional evidence being gathered from a HSE Specialist Inspector, when all of the evidence in the case was reviewed by a lawyer from HSE’s Legal Services Division, it was concluded that there was insufficient evidence to give rise to a realistic prospect of conviction. I understand that this decision has been separately explained to you by the reviewing lawyer.

“The decision that was taken by the reviewing lawyer has subsequently been reviewed by a Deputy Director in HSE’s Legal Service’s Division. Whilst additional offences were considered, it was concluded that due to the issues with regard to the availability and admissibility of evidence, particularly in relation to the Council’s systems of work, there was insufficient evidence to commence a prosecution, and it was not practicable to gather further evidence due to the passage of time. I am disappointed that this was the case and on behalf of HSE apologise that no further steps could be taken.

“I have spoken with colleagues here at HSE and I am satisfied that we have reviewed our handling of these matters, and I am also content that we have improved processes, particularly as regards working with South Wales Police. As such, I am now satisfied that HSE has responded to all matters raised within your complaint and no further action will be taken.”

Formal complaint

Ms Thomas said she has now asked her MP, Carolyn Thomas, to make a formal complaint to the Parliamentary Ombudsman about the “unacceptable and accepted failures of the HSE and the fact that there has been no accountability regarding these failures.

“This is contrary to the Labour government’s Public Office (Accountability) Bill, which is also known as Hillsborough Law”.