Summary: The Council followed the correct process to investigate health and safety in the workplace, following an incident in a child’s nursery.

The complaint

1. The complainant, who I will call Mrs B, says the Council failed to conduct an in-depth health and safety investigation of an incident at her child’s nursery. The Council is holding one member of staff accountable rather than the nursery and or the manager. Mrs B says there was another member of staff in the room, so the individual is not solely responsible for not following allergy procedures. The manager was present just before the incident occurred and Mrs B believes could have taken action to prevent the incident. The manager was aware staff were not following allergy procedures, but only said “do it next time”.
2. Mrs B says the Council passed the case between several workers, lost evidence, failed to get a statement from the child’s Grandmother and misled them during interview as to the likely outcome of the investigation. Mrs B says she was told both the individual and the nursery would be guilty, or nobody would, but the outcome was that only the individual was guilty. Mrs B says communication with the Council was poor, and it has not answered her questions.
3. Mrs B says the Council’s actions have prolonged her anxiety about the incident, she had time and trouble chasing the Council for responses and information, she feels let down and has lost trust in the Council. Mrs B would like the case re-investigated.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

6. I considered:
• Information provided by Mrs B, including in a telephone conversation.
• Information from the Council in response to my enquiries.
• The Council’s ‘Corporate Enforcement Policy’
• The Health and Safety Executive’s ‘Enforcement Management Model’
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

8. The responsibility for enforcing health and safety in the workplace is shared between several regulators. Generally, the enforcement activity for most workplaces is split between the Health and Safety Executive and local councils. The local council’s workplace health and safety enforcement is done by environmental health officers.
9. Mrs B reported an incident that took place in her child’s nursery. The nursery gave her child milk, which he is allergic to. This triggered the Council to investigate the health and safety in the nursery. The Council’s officers have powers to require answers to questions and the power to enter premises.
10. The Council interviewed relevant owners and staff from the nursery, and interviewed Mr & Mrs B, the child’s parents. The Council watched CCTV footage of the incident and looked at the nursery’s relevant health and safety policies.
11. Mrs B queries why the Council did not interview the child’s Grandmother as she was the one who dropped him off that morning. The Council explains as the Grandmother was not present at the time of the incident it did not consider she could provide relevant witness testimony, so it was not necessary to interview her.
12. The Council’s enforcement policy says “The prosecution of offenders will be used judiciously but, without hesitation, against those businesses or individuals where the law is broken and the health, safety, well-being or amenity of the public, employees and consumers are subject to serious risk. Legal advice will be taken to ensure that only those cases presenting a realistic prospect of conviction will be pursued. The Council will have due regard to the availability of any defences and to any explanation, apology or other issue referred to by the suspect by way of mitigation.”
13. The ‘Enforcement Management Model’ says “When considering the prosecution of employees, inspectors should also take account of the role that the individual employees played in the commission of the offence, and any relevant actions by their employer. Directors or managers may only be prosecuted if the body has committed an offence. Prosecutors must then be able to prove the offence was committed through the consent, connivance or neglect of the director or manager in question.”
14. The Council concluded the nursery had good health and safety policies and had trained all staff in the correct procedures regarding the Health and Safety Act and allergen training. One member of staff admitted they failed to follow those policies and procedures. As soon as the nursery was aware of the incident it followed the guidelines and ensured the child received medical attention and called the parents. The Council found no negligence by the nursery, it had appropriate policies and procedures in place and had trained its staff accordingly. There was no offence committed by the nursery.
15. The individual member of staff admitted under caution she did not follow the nursery’s procedures. The fault lay with a mistake by the individual. The Council decided to issue the individual with a formal caution. In line with the Council’s policy the investigating officer took legal advice and put an enforcement review of the case to their service leader to agree this action.
16. Mrs B argues it was not solely the individual at fault as there was another member of staff in the room and the manager was present just before the incident occurred. The Council says the other member of staff in the room had other responsibilities requiring their attention, the individual cautioned was solely responsible for providing the children’s snack that day. The manager and owner did enter the room before the incident, but this was to look at the new decoration and their focus was not what was happening with the children’s snack.
17. The Council acknowledges the owner glanced over to the snack table, but says she is not involved in the day to day care of the children so would not recognise the child had an allergy. The Council’s view was that anyone with a passing interest would assume the individual member of staff was correctly setting up the snack time. The Council has not commented on Mrs B’s allegation that the manager was aware the procedure was not being followed and said, “do it next time”. A witness statement says the manager entered the room and saw the individual had not put a tablecloth on the table, which is part of the procedure, and told her to apply a tablecloth next time.
18. Mrs B says when the Council interviewed her and her husband, the officers asked if they were happy to continue. Mr and Mrs B said they would not be happy to continue if the outcome would be the individual staff member would be blamed and the nursery would be ‘let off’. Mrs B says the officers said there were two possible outcomes, either both the individual and the nursery would be guilty, or neither would be. The officers deny saying this and there are no notes available of the interview.
19. During the investigation, the Council got Mrs B’s signed consent to access her son’s medical records. Mrs B says the Council then lost it as she was asked to provide it again. The Council explains the document was never lost and was held securely with all other evidence. An officer overlooked the document when looking for it because it was stuck between other papers so did ask Mrs B to resend, but then confirmed they had found it.
20. Mrs B says the communication from the Council was poor, and she often had to chase for information. The Council says its role is to investigate if an offence has been committed. The Council is a neutral party and there is no requirement to regularly update the parents or the nursery or any other party during the investigation. The Council aims to update people at key stages. The Council says it had contact with Mrs B as necessary for the investigation, and at the conclusion. The Council accepts there was some unavoidable delay due to officer illness.
21. Following the Council’s conclusion, Mrs B contacted it with some comments and queries. Mrs B raised the issue about the manager and other staff member in the room not enforcing the policies. The Council replied by saying it felt unable to provide a factual response and wished to make no further comment.

Was there fault causing injustice?

22. The Ombudsman cannot decide what enforcement action is necessary and appropriate. This is a matter of professional judgement and a decision the Council must make. My investigation focusses on the way the Council made its decision.
23. The Council has explained the reason it did not find the nursery at fault. The Council reached this decision having interviewed relevant people, watched CCTV footage, looked at the nursery’s policies and procedures, and considered relevant law and guidance. I find no fault in how the Council reached its decision, even though Mrs B disagrees with it.
24. The Council has explained the reason for not interviewing the child’s grandmother. This is a professional decision the Council was entitled to make, and it has given clear reasons. It is not fault, even though Mrs B disagrees.
25. Mrs B believes the manager could have prevented the incident. While the manager perhaps should have told the staff member to apply the tablecloth, rather than saying ‘do it next time’ I find it more likely than not this would not have prevented the incident. It is the colour coded placemats which identify the children with allergies. When the manager was in the room it seems the staff member still had these in her hands. The manager would have trusted the staff member to then follow the procedure that is in place. The Council considered this when reaching its decision there was no neglect by the nursery.
26. Mrs B says the Council misled her at interview regarding the likely outcome of the investigation. In the absence of evidence in support, I am unable to say there was fault by the Council.
27. Mrs B says the Council mislaid evidence. I understand the request to provide information again caused Mrs B concern. The Council has given a reasonable explanation of what happened; I do not find fault in the Council’s process.
28. The relevant policies for enforcement investigation do not set out any timescales, or service standards for contacting the involved parties. It was understandably a distressing time for Mrs B, and she wanted to understand what was happening, but the Council had no duty to keep her informed throughout the investigation. The Council promptly told Mrs B the conclusion once it reached its decision.
29. If the Council had responded to Mrs B’s query during the complaints process about the manager and other staff member in the room, then her complaint to the Ombudsman might have been avoided. The Council could have given the explanation at that point that it has now given to the Ombudsman. The Council’s response frustrated Mrs B and lost some of her trust in the process. The Council should ensure to give full and reasoned responses to complaints.
30. However, as I have found no fault in the Council’s enforcement process, I do not find this minor fault in the complaint process is significant enough to warrant an overall finding of fault.

Back to top

Final decision

31. I have completed my investigation on the basis there is no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman