Health and Safety Law Developments Workplace Transport, Moving it safely 3 June 2015 Richard Voke Ashfords Solicitors – r.voke@ashfords.co.uk Seminar Title | Date 1
Relevant Legislation/Guidance • Corporate Manslaughter and Corporate Homicide Act 2007 • Health and Safety at Work Act 1974 • Workplace (Health, Safety and Welfare) Regulations 1992 • Provision and Use of Work Equipment Regulations 1998 (PUWER) • Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) • Sentencing Council Guidelines - [consultation ended February 2015] • A guide to workplace transport safety - HSG136 (3rd edition) Published 2014 Seminar Title | Date 2
Cases • R v DHL 2012 - IP run over by own HGV because there was no safe system of work for coupling/uncoupling tractor and trailer units (s2 - £65K) • R v H & M Distribution Limited 2012 - whilst working in the yard at H & M Distribution Ltd, Sandy, Beds (s2 - £150k) • R v H E Payne Transport Limited 2012 - Closing back doors to vehicle crushed by vehicle reversing into him, in their capacity as site owner – (s3 - £100k) • R v West Midlands Travel Limited 2011 - Employee in the process of manoeuvring West Midlands double decker bus, with a colleague became crushed between a moving bus and a parked bus - fatal (s2, Management regs - £150k) Seminar Title | Date 3
Section 2 HSWA – Duties to Employees “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees ” R v Gateway Foodmarkets [1997] R v HTM Ltd [2008] R v Chargot [2008] Seminar Title | Date 4
Section 3 HSWA – Duties to Non-Employees “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety” R v James Porter [2008] HSE v Norwest Holst Ltd, 2007 Crown Court Seminar Title | Date 5
Burden and Standard of Proof • Burden - Prosecution must prove guilt • Standard - “ beyond reasonable doubt ” – Jury/Magistrates must be satisfied of guilt so that they are sure before convicting • EXCEPTION – “Reasonably Practicable” • Section 40 – Reversal of the burden of proof Davies v Health and Safety Executive [2002] CA • Edwards v National Coal Board 1949 Seminar Title | Date 6
Over-cautious or Over- zealous? • HSE prosecution success rate – 82% 80% success shows the correct balance between caution and zeal – Judith Hackitt • LA prosecution success rate – 94% • Environment Agency – 99% Levels of risk or levels of proficiency? Seminar Title | Date 7
Corporate Manslaughter & Corporate Homicide Act 2007 Clause 1(1) Organisation guilty if the way in which its activities are managed or organised • Causes a persons death and • Amounts to a gross breach of a relevant duty of care Clause 1(3) Organisation guilty of an offence if the way in which its activities are managed or organised by its senior management is a substantial element of the breach Seminar Title | Date 8
Jury to consider whether ‘gross’ breach • ‘gross’ breach if conduct falls far below what can be reasonably be expected of the organisation in the circumstances • Jury must consider whether organisation failed to comply with H&S legislation, and if so: – How serious was the failure – How much risk of death it posed. Seminar Title | Date 9
Key components – ‘ Gross ’ • Jury may consider whether evidence showed: – Organisation’s attitudes, policies, systems, practices (safety culture) encouraged failures or tolerated them – Have regard to health and safety guidance • This will not preclude the jury considering other evidence regarded as ‘relevant’ Seminar Title | Date 10
Key components - ‘senior management ’ • ‘Senior management’– persons who play significant roles in: – Making decisions about how the whole or a substantial part of the activities are managed or organised (Strategic - MDs, FDs or in LAs = corporate management team), or – The actual managing or organising of the whole or substantial part of those activities (Operations, Regional managers) Seminar Title | Date 11
Corporate Manslaughter Prosecutions • R v Cotswold Geotechnical (Holdings) Ltd ( Feb 2011) Fined £385,000 in equal instalments over 10 years • R v JMV Farms Ltd (Northern Ireland) (May 2012)Fined £187,500 payable in 6 months • R v Lion Steel Equipment Ltd (July 2012) Fined £480,000 over 3 years Seminar Title | Date 12
• R v Peter Mawson Ltd [2015] – • 42 year old employee fell through a skylight from a 7m height while working on a rooftop and later died in hospital. • Company pleaded guilty • Fines - £200,000 for Corporate Manslaughter offence, £30,000 under S.2 HSWA. Costs – £31,500 • Owner of the firm sentenced to 8 months prison sentence, suspended for 2 years, 200 hours community service, a publicity order to be posted on the website for a set period and a half-page statement in the local newspaper. Seminar Title | Date 13
Acquittals • PS & JE Ward Ltd [2014] – Death of employee from electric shock - Acquittal of Corporate Manslaughter Charge. - Convicted under S. 2 (1) HSWA • R v MNS Mining Ltd [2014] – Death of four miners after flooding of a mine they were working on - Acquittal of Corporate Manslaughter Charge. - Mine manager charged with 4 counts of gross negligence manslaughter Seminar Title | Date 14
Health and Safety Offences Guideline Seminar Title | Date 15
What offences does the consultation focus on? The Sentencing Council is consulting on the draft guidelines for sentencing the following (not on the legislation that establishes these offences): • Health and Safety Offences • Food Safety Offences • Hygiene Offences • Corporate Manslaughter Seminar Title | Date 16
Background • In 2010 the SGC “Definitive Guideline” was introduced. Although not mandating any tariff, the guideline indicated that the appropriate fine for : fatal health and safety offences - ‘will seldom be less than £100,000’; and corporate manslaughter - ‘will seldom be less than £500,000 and may be measured in millions of pounds’ Seminar Title | Date 17
Health and Safety and Food Safety Offences • There is very little specific guidance presently - usually have to extract applicable principles from sentencing in cases ( R v F Howe and Son [1999]) • Inconsistencies exist - lack of familiarity with such cases • Fines criticised as too low relative to the harm caused, the culpability of the offender and on occasions, to the means of the offender • Impact of Sellafield and Network Rail Seminar Title | Date 18
Impact of Proposed Guidelines • The proposed guidelines a departure from acceptance that health and safety cases arise out of a limitless range and variety of circumstances and seriousness • This departure is in line with the recently published Sentencing of Environmental Offences • They reflect a desire to help ensure greater consistency BUT • The main concern will be that the level of fines will be tied in to the corporate turnover resulting in significant increases, particularly for those involving large organisations. Seminar Title | Date 19
Overarching aims S164 of CJA 2003 – fines should reflect seriousness of offence, financial circumstances Council believes • that fine should reflect extent fallen below required standard • remove economic gain • real economic impact • Bring home to management and shareholders need to comply Studies suggested that there was inconsistencies in achievement of the above aims in existing ‘non - tariff’ regime. Seminar Title | Date 20
Categories of organisations Large – Turnover or equivalent: £50 million and over Medium – Turnover or equivalent: £10 million and £50 million Small – Turnover or equivalent: between £2 million and £10 million Micro – Turnover or equivalent: not more than £2 million Charities Where a fine falls on public or charitable bodies, the fine should normally be substantially reduced. Seminar Title | Date 21
Approach to Guidelines for health and safety offences Organisations : • Step one : Determining the offence category - Culpability - Harm: 1) Risk of harm created. 2) significant number exposed/ significant cause of actual harm • Step two : Starting point and category range – financial information (turnover will be starting point), then consider aggravating and mitigating factors • Step three : Check whether the proposed fine based on turnover is proportionate to the means of the offender (this provides some flexibility) • Step four : Consider other factors that may warrant adjustment of the proposed fine. (e.g. innocent third parties) court should adjust to avoid any unjustified wider consequences (e.g. losses of jobs). • Step five to nine : standard steps including reduction for early guilty plea. Seminar Title | Date 22
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