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Birmingham Health Safety and Environment Association Health and Safety Law Update Alan Millband 11 June 2018 www.howespercival.com
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 3
Health and Safety Law Update • The Definitive Sentencing Guideline • The first sentencing guideline for health and safety cases • Applicable since 1 st 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- offences-definitive-guideline-FINAL-web.pdf 4
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 5
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 6
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 7
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 8
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 organisations is a reasonable approach 9
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 10
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”? 11
Health and Safety Law Update • The Personal Protective Equipment (Enforcement) Regulations 2018 • Effective from 21 st 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) 12
Health and Safety Law Update • Consultations 13
Health and Safety Law Update • Consultations 14
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 …… 15
Health and Safety Law Update • Drones • Drones and health and safety - what are the key issues? 16
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 17
Health and Safety Law Update • Any questions? 18
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 19
Birmingham Health Safety and Environment Association Health and Safety Law Update Alan Millband 11 June 2018 www.howespercival.com
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