Health and Safety Law Developments Workplace Transport, Moving it - - PowerPoint PPT Presentation

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Health and Safety Law Developments

Workplace Transport, Moving it safely 3 June 2015

Richard Voke Ashfords Solicitors – r.voke@ashfords.co.uk

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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

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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)

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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]

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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

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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

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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?

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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

• f the breach

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Jury to consider whether ‘gross’ breach

• ‘gross’ breach if conduct falls far below what

can be reasonably be expected of the

• rganisation 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.

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Key components – ‘Gross’

• Jury may consider whether evidence showed:

– Organisation’s attitudes, policies, systems, practices (safety culture) encouraged failures

• r tolerated them

– Have regard to health and safety guidance

• This will not preclude the jury considering other

evidence regarded as ‘relevant’

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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

• r in LAs = corporate management team), or

– The actual managing or organising of the whole or substantial part of those activities (Operations, Regional managers)

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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

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• 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

• rder to be posted on the website for a set period and a half-page

statement in the local newspaper.

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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

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Health and Safety Offences Guideline

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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

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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’

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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
• f the offender and on occasions, to the means of the offender
• Impact of Sellafield and Network Rail

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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.

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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.

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Categories of

• rganisations

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.

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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.

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Approach to Guidelines for health and safety offenses

Individuals:

• Step one: Determining the offense 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 and the .

Court will identify a starting point and range then consider aggravating and mitigating factors

• Step three: Review any financial element of sentence (review quantifiable

economic benefit)

• Step four to nine: standard steps including reduction for early guilty plea.

Obviously custodial sentence possible as well as fine!

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Step 1: Culpability categories

• Organisations
• Very high – deliberate breach / flagrant disregard.
• High – offender fell far short of standard e.g. ignoring concerns

raised by employees / allowing breaches to subsist over long period

• f time. Systematic failings.
• Medium – fell short of the appropriate standard.
• Low - did not fall far short of appropriate standard e.g. significant

efforts made to address risk although they were inadequate / no prior warning.

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Step 1: Harm – 2 stages

First – risk of harm created by the offence: 1.The seriousness of the harm risked by the offenders breach (level A, B or C). 2.The likelihood of that harm arising (High, Medium, Remote). Second:

• Exposed a significant number of people to the risk of

harm. AND

• Whether the offence was a significant cause of actual

harm (more than minimal, negligible, trivial contribution). Victims actions highly unlikely to be looked at

Seminar Title | Date 26 Seriousness of harm risked Likelihood

• f harm

Level A:  Death  Physical / Mental impairment resulting in life dependency  Health condition resulting in significantly reduced life expectancy Level B:  Physical / Mental impairment not amounting to level A.  A progressive, permanent or irreversible condition Level C:  All other cases not falling within level A / B High Harm category 1 Harm category 2 Harm category 3 Medium Harm category 2 Harm category 3 Harm category 4 Remote Harm category 3 Harm category 4 Harm category 4 (start towards bottom of range)

Step 1: Harm

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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.

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Step 2: Large companies over £50m

• High culpability
• Medium culpability

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Step 2: Category Range

• Micro - turnover up to £2m: £50 (low culpability

cat 4 - £450,000 very high culpability cat 1)

• Small - between £2m and £10m: £100 -

£1,600,000

• Medium – between £10m and £50m: £1,000 -

£4,000,000

• Large - £50m and over: £3,000 - £10,000,000

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Step 2: Individual Ranges - Custodial

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Step 2: Aggravating and mitigating factors for individuals and organisations – Movement within range

• Factors increasing seriousness – previous

convictions, cost cutting, obstructions of justice, poor record, falsification of documents / licenses, deliberate failure to obtain / comply with licenses

• Factors reducing seriousness or reflecting personal

mitigation – no previous, steps taken to remedy, cooperation, good record, acceptance of responsibility

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Steps 3 - 9:

• Step 3: Proposed fine based on turnover is

proportionate to the means of the offender – court to ‘step back’ and adjust e.g. profit margins, economic benefit, put out of business.

• Step 4: Other factors that may warrant adjustment of the

proposed fine – public or charitable bodies e.g. impact

• n employment, customers and local economy (but not

shareholders or directors).

• Step 5: Consider any factors which indicate a reduction

for assistance to the prosecution – e.g. assistance given to the prosecutor.

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Steps 3 – 9:

• Step 6: Reduction for guilty pleas
• Step 7: Compensation and ancillary
• rders – corporate manslaughter,

includes publicity, remediation

• Step 8: Totality principle
• Step 9: Reasons

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Corporate Manslaughter

• Medium – turnover £10m to £50m
• Small – £2m to £10m

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UK companies abroad – Health and Safety

• Corporate Manslaughter and Corporate Homicide Act 2007 - jurisdiction

require that the actual death in UK territory, or territorial waters, or on a UK registered ship or aircraft or offshore installation

• HSAWA - HSAWA is limited to UK territory and territorial waters, along with

UK registered ships and aircrafts and offshore installations, and apparently has no application outside those areas – for example, in relation to sending employees overseas to work in potentially hazardous locations.

• BUT…..

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UK companies abroad – Health and Safety

• The HSAWA imposes general duties to ensure that personnel are

not exposed to risk of harm, and consequently, if the decision to send personnel into a clearly dangerous situation outside the UK was made by a company within the UK, then there may be a breach

• f those general duties at that point in time.
• More likely would be the scenario where the decision to send

someone overseas was made in the UK, which should have been supported by a suitable and sufficient risk assessment of risks and hazards, as supported by the Management of Health and Safety at Work Act 1999. (Regulation 3 imposes a requirement on all employers to carry out suitable and sufficient risk assessments of all potentially hazardous activities.)

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HSE Offering

37

Ashfords’ Regulatory Services

• Health, safety, environmental, fire, trading standards, security
• ‘Inside view’ from former HSE, Environmental Health, Trading

Standards, Security Services and Fire Safety Officers.

• Ability to achieve significant cost savings, bolster the brand and

improve efficiencies.

• Expert benchmarking.
• Primary Authority partnering and Assured Advice - criminal and civil

reassurance of compliance.

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Questions

Richard Voke (Partner) Business Risk and Regulation Ashfords Solicitors Tel: 01173218098 Mob: 07967327282 r.voke@ashfords.co.uk