[PPT] - BREATHING NEW LIFE INTO LAW www.howespercival.com Birmingham PowerPoint Presentation

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www.howespercival.com

BREATHING NEW LIFE INTO LAW

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www.howespercival.com

Birmingham Health Safety and Environment Association

Health and Safety Law Update Alan Millband

11 June 2018

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Health and Safety Law Update

Today’s presentation
We’ll be taking a look at
Some of the last 12 months activity in health and safety law
Several interesting cases on sentencing
A particularly important case regarding enforcement notices
The latest in ISO
What’s happening on the health and safety consultation front
Classic cars
Drones

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Health and Safety Law Update

The Definitive Sentencing Guideline
The first sentencing guideline for health and safety cases
Applicable since 1st February 2016
Takes court through series of steps to determine sentence
Culpability and harm risked are the principal factors
Turnover is the key driver in the fine for organisations
Table provide ranges and starting points
https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-
ffences-definitive-guideline-FINAL-web.pdf

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Health and Safety Law Update

The Definitive Sentencing Guideline – a few thoughts:
Many prosecutors contend for high culpability category
Demonstrable increase in fine levels
Impact unintentionally severe in low harm categories?
No simple linear approach to “very large” organisations
Greater scope for disagreement over key elements of offending

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Health and Safety Law Update

ATE Truck and Trailer Limited (April 2018)
What happened
Defendant’s only failing was in not having a suitable and sufficient risk

assessment

Parties agreed culpability low; HSE arguing likelihood of harm was

medium, defendant arguing it was low

Judge found high culpability and high likelihood of harm and fined ATE

£475,000

Court of Appeal reduced fine to £200,000
As a matter of principle judge can disagree with parties but must be

careful and justified in doing so

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Health and Safety Law Update

Excavation and Contracting (UK) Limited (April 2018)
What happened
The case centred on forgery of critical health and safety documents
Company fined £13,000; David Lloyd – suspended prison sentence and

community order; Lee Cooper – community order

Matt Greenly (HSE):
“Creating forged documents will not be tolerated by HSE and we will not hesitate to take appropriate

enforcement action against those that fall below the required standards”

A couple of thoughts
Greater Manchester Magistrates’ Court case
Jail

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Health and Safety Law Update

Tata Steel UK Limited (June 2017)
What happened
Appeal against fines imposed for two separate offences
For one offence Court of Appeal held judge wrong regarding likelihood of

harm: “The period of operation of the machine without incident is persuasive

authority against the finding of a high likelihood”

But didn’t disagree judge right to move up a harm category (rather than

adopt a “mechanistic” approach) when fining a very large company.

Since fined £1.4 million (plus £140,000 costs) for a work-related fatality in

which it failed to enforce its own health and safety procedures despite two previous similar incidents

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Health and Safety Law Update

Whirlpool UK Appliances Limited (November 2017)
What happened
Low culpability case
Judge at Crown Court at Bristol imposed fine of £700,000
Company turnover £700 million but had made significant losses recently
Fine “manifestly excessive” – reduced to £300,000
Important to take full account of financial circumstances of offender
Tacit acceptance that moving up categories and ranges for very large
rganisations is a reasonable approach

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Health and Safety Law Update

Chevron North Sea Limited (February 2018)
What happened
Supreme Court decision
Case involved an appeal against a Prohibition Notice
Two issues for a Tribunal on appeals of this kind:
Reasonableness of Inspector’s opinion
The risk (of serious personal injury) that existed at the time the Notice was

served

Historical position – appeal cannot introduce what wasn’t available to

the inspector at the time – overturned.

Some thoughts on the significance of the decision

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Health and Safety Law Update

ISO 45001 (Occupational Health and Safety Management

Systems – Requirements)

Up and running from March 2018
Supersedes ISO 18001
Principal differences:
Engagement of workers
Promoting positive health and safety culture
Increased focus on risk management
Question: Is accreditation crucial, desirable, or simply “vanity press”?

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Health and Safety Law Update

The Personal Protective Equipment (Enforcement)

Regulations 2018

Effective from 21st April 2018
Its impact is on manufacturers and suppliers etc rather than users
Hearing protection moved from Category II to Category III
PPE must have declaration of conformity (or link to where to find it)
Certificate must be valid for 5 years
Importers/distributors of non-EU PPE take on duties of manufacturers
Bespoke PPE now covered
12 month time limit (from knowledge of prosecutor)

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Health and Safety Law Update

Consultations

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Health and Safety Law Update

Consultations

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Health and Safety Law Update

MOT tests for classic cars
From May 2018, 293,000 cars in Britain will be exempt from having an

MOT test.

Cars over 40 years old won’t have to take the annual road safety test.
1.5 per cent of cars in Britain will not have an MOT certificate, but will be

road legal.

The Department for Transport defended the decision from suggestions it

was an unsafe move, by saying owners of older cars usually keep them in the good condition and don’t use them regularly enough for an MOT test to be necessary.

Discuss ……

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Health and Safety Law Update

Drones
Drones and health and safety - what are the key issues?

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Health and Safety Law Update

Drones
Drones and health and safety - what are the key issues?
Under Health and Safety at Work etc Act sections 2(1) and 3(1)

employers are under a duty to ensure health and safety at work

It is a duty qualified by “reasonable practicability”
This involves assessing risk and evaluating the cost (time, resource,

money) to manage it

Many work-related tasks have risks that may be reduced or eliminated

through the use of drones……

….and they’re comparatively cheap

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Health and Safety Law Update

Any questions?

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SEMINAR SPEAKER

Alan Millband – Partner, Regulatory and Health & Safety Team

Health and Safety Law Update Alan heads up Howes Percival’s Regulatory and Health and Safety Team. He has specialised in health and safety law since 1988 during which time he has advised, assisted and represented many clients, from individuals and small businesses to nationals and multi-nationals; and across a wide variety of sectors. Alan and the Team engage in proactive health and safety matters, advising on law and compliance; and in reactive matters, including challenges to and appeals in respect of enforcement action, and defending prosecutions. Howes Percival is a Legal 500 Top Tier firm for health and safety. alan.millband@howespercival.com 0116 247 3521 T 07920 799703 M