BHSEA Legal Update 10 June 2019 Louise Mansfield Associate
For today • Legal refresher • Legal update – Personal Liability and Gross Negligence Manslaughter – Brexit! – The health agenda – Prohibition Notices – FFI – RIDDOR – Sentencing and case digest
HSE Statistics • HSE will undertake a targeted programme of approximately 20,000 proactive inspections in 2018/19 • 11,522 notices issued (2017-2018) • 517 prosecutions, 493 convicted in 2017/18 (583 in 2016/17, 696 in 2015/16) • Convictions between 93-95% of cases for past five years • £72.6million in fines (2017-2018)
Illness and Injury • 144 workers killed at work 2017-2018 • 555,000 estimated non fatal injuries • £15bn annual cost of work related injury and ill health (£3bn born by employers) • 30.7m working days lost 2017-18 – work related ill health • Practical impact on a business
Legal refresher
Corporate H&S Duties Duty to “ensure” the health safety and welfare of Section 3 employees Duty to “ensure” the health Section 2 and safety of non-employees Duty to non - employees “So far as is reasonably Duty to practicable” employees
Individuals H&S Duties – 1974 HSWA Duty to take reasonable care of self and others affected Section 7 by work ( s.7 ) Section 37 Where an offence… has been committed with the consent , Duty of connivance , or…attributable to employees any neglect on the part of any director, manager… or a person who purports to Liability of act in that capacity, he/she as well as the directors and senior managers company shall be guilty of that offence ( s.37 )
Other Key legislation • Construction (Design & Management) Regulations 2015 • Work at Height Regulations 2005 • Lifting Operations and Lifting Equipment Regulations (LOLER) 1998 • Control of Asbestos Regulations 2012 • Management of Health and Safety at Work Regulations 1999 • Provision & Use of Work Equipment 1998 • Corporate Manslaughter & Corporate Homicide Act 2007 • Gross negligence manslaughter for individuals
Civil law • PI claims • Compensation • But Insurance available • Claims by other parties / contractual claims – e.g. for delay, reputational damage, financial impact etc.
Corporate Manslaughter and Corporate Homicide Act • An organisation is guilty of corporate manslaughter if the way in which its activities are managed or organised, (a)Causes a person’s death, and (b)Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. BUT • An organisation is only guilty, if the way its activities are managed or organised by its SENIOR MANAGEMENT is a substantial element of the breach
Personal Prosecutions / Gross Negligence Manslaughter
Personal Prosecutions • Increased enthusiasm for personal prosecution = increased risk for directors = increased importance in the boardroom • No sign of an increase in pursuing employees themselves. • Rise in prosecution of directors in recent years: – In 2017, 40 directors were successfully prosecuted and six were convicted of corporate manslaughter on a personal basis – Of 46 convicted, seven faced fine at average of £8,022 – Where custodial sentence imposed, 17 directors had a suspended prison sentence – 17 received an immediate custodial sentence for an average of 21 months – In 2015/16 – 46 prosecuted, with 34 of those 46 found guilty (~73% - lower than usual!) • BUT – reality is that these remain mostly in small(er) organisations
Gross Negligence Manslaughter • Elements of offence: – Duty of Care – Gross Breach – Causation – gross breach was a significant cause of death • New sentencing guidelines – December 2018 • Applies to anyone sentenced on or after that date, regardless of the date of the offence. • Offence range of 1 to 18 years in prison. • Apply to all manslaughter cases • Effect is likely to be an increase in the length of custodial sentences imposed in gross negligence manslaughter cases – the guidelines on fines certainly increased those!
Gross Negligence Manslaughter
Gross Negligence Manslaughter New guidelines:
Best practice for executive directors The main expectations imposed on senior execs are: • Scrutinise i.e. the conscience of the Board; • Ensure the processes to support the Board in managing its significant health and safety risks are in place and are robust • to ensure awareness of the risks faced by the business and to provide visible leadership on safety • to ensure that appropriate systems are in place and regularly reviewed and that adequate resources are available • to delegate, empower and hold accountable • to check compliance with the systems developed by the Company to manage risk • review safety performance at least once a year. • It is NOT about micromanaging 16
Brexit!
Brexit • Government remains committed to negotiated outcome. • ‘No deal’ notices published (with HSE input) so businesses can make informed plans and preparations. • Topics include: – Trading goods and product safety – Workplace rights – Regulating chemicals • Watch this space …
The health agenda
HSE agenda • Continuing emphasis on occupational health by HSE • 17 June 2019 – HSE latest construction health inspection initiative – focus on health • Continuing enforcement action resulting in substantial fines • Amount of work required in responding to HSE contact now much higher • Vibration, noise, dust, wood, asbestos, silica, COSHH, manual handling, stress • 1.4million work-related ill health cases in 2017/18 • 26.8million working days lost due to work-related ill health in 2017/18 • 13,000 deaths each year estimated to be linked to past exposure at work, primarily to chemicals or dust
Nordam Europe Limited • Maintains & repairs aircraft components • 100 employees exposed over 22 years • 30 employees exposed to risk of serious harm • Tools included orbital sanders, rivet guns, grinders and drills • Absence of suitable assessment • Should have introduced additional controls • Absence of health surveillance • £400k, costs of £39K
Vibration – common issues Problems with health surveillance The RA – the regulations are very prescriptive Failure to identify the risk at all Allegations always involve multiple employees over a long period of time But – the condition is not straightforward and diagnosis is not a precise science. Is it actually reportable?
Remember Occupational health is not the same as “wellbeing”
Key takeaway • The HSE are promoting the occupational health agenda • They mean it • A continuing emphasis in enforcement and during inspections • The industry is doing a lot of work around mental health
Prohibition notices, FFI and RIDDOR
Prohibition Notices – Chevron The Facts? • 23 April 2013 - HSE took the view that stairways and gratings leading to helipad weakened by corrosion • Prohibition Notice served - Chevron ordered to stop using the stairways • Some of the metalwork was removed for testing by Chevron and those tests confirmed that the metalwork met the relevant British Standard and was not unsafe Challenge? • Chevron appealed against the Notice • Employment Tribunal cancelled the Notice • HSE appealed – but cancellation affirmed • Conflicting E&W judgment : - Rotary Yorkshire v Hague [2014] EWHC 2126 (Admin): “… only evidence available or which could reasonably have been available to the HSE Inspector could be taken into account when deciding an appeal ” • HSE sought leave to appeal to the Supreme Court
Prohibition Notices – Chevron cont… Decision? • Supreme Court upheld the previous decisions • Ruled that later evidence can be taken into account when determining an Enforcement Notice appeal • Lady Black said that: “When the inspector serves the Notice, section 22 makes clear that what matters is that he is of the opinion that the activities in question involve a risk of serious personal injury. If he is of that opinion, the Notice comes into existence. However … when it comes to an appeal, the focus shifts. The appeal is not against the inspector’s opinion, but against the Notice itself …. The Inspector’s opinion about the risk, and the reasons why he formed it and served the Notice, could be relevant … but I can see no good reason for confining the Tribunal’s consideration to the material that was, or should have been, available to the inspector."
Fee For Intervention • Now £154 p/h (from 6 April 2019) • More reason to consider disputing a Notification of Contravention? • OCS Group UK Ltd - Judicial Review re dispute process. • Settled with consultation for a new scheme – A FFI will still be charged – If a duty holder wishes to query it MUST be raised within 21-days (review undertaken by PI) – If upheld, a dispute can be raised now to a panel INDEPENDENT of HSE; • Disclosure of evidence and reasoning to duty holder • Notification of panel to duty holder • New process - in force from 1 September 2017!
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