Kizzy Augustin, Russell Cooke LLP 8 April 2019 Agenda Brexit and - - PowerPoint PPT Presentation

London Health & Safety Group

Legal Update 2019

Kizzy Augustin, Russell Cooke LLP 8 April 2019

Agenda

• Brexit and H&S – who cares?
• Where are we with the 2016 Sentencing Guidelines?
• 3 years on……sector focused prosecutions
• Other changes in H&S for 2019?
• Food allergens – info for food safety businesses
• Mental Health & Wellbeing – should physical and

mental health be treated the same?

• H&S and Social Media?
• RIDDOR Changes

Brexit and H&S?

• Brex-hausted much?
• Summary of current status – DEAL or NO-DEAL?
• HSE’s position:
• Obligations and duties to protect the health and

safety of people will not change

• Minor amends made to regulations to remove EU

references – legal requirements stay the same

• Approach to regulation is to preserve UK’s high

standards in H&S / protect people & environment

Legislation that may be affected……

• Regulation of chemicals (in the event of ‘no deal’):
• Biocides, CLP, PIC, PPP, REACH
• Explosives
• Equipment and machinery
• Generally UK will establish a stand alone chemicals/

explosives regime.

• The role of standards in the regulatory framework for

manufactured goods will not change when we leave the EU.

• The current EU ‘harmonised standards’ will be carried

across as UK ‘designated standards’ to maintain a single standards model between the UK and the EU.

Corporate H&S Duties

Duty to “ensure” the health safety and welfare of employees Duty to “ensure” the health and safety of non-employees Duty of person who has, to any extent, control of premises to ensure premises, access and egress from premises and any plant or substance is safe and without risks to health “So far as is reasonably practicable”

Section 2 Duty to employees Duty to non- employees Section 3 Section 4 Duty of controller of premises

Individual H&S Duties

Duty to take reasonable care

• f self and others affected

by work (s.7) Where an offence… has been committed with the consent, connivance, or…attributable to any neglect on the part of any director, manager… or a person who purports to act in that capacity, he/she as well as the company shall be guilty of that offence (s.37)

Duty of employees Section 7 Section 37 Liability of directors and senior managers

Where are we with the Sentencing Guidelines

2016?

• Definitive guidelines

implemented since 1 Feb 2016

• Impact of the guidelines over

the last 3 years?

• Proposed changes

Impact Assessment of the Guidelines

• Fines increased for large (anticipated) and small (not

anticipated) organisations

HSE Impact Assessment cont…

• Individuals – unanticipated increase in higher fines and short term change of use in

some disposal types

• What about food safety and corporate manslaughter?
• Food Safety & Hygiene offences: less pronounced increase in fines
• CM offences – increase in fines, but low volume of prosecutions…..

Culpability

• Level of culpability extremely important

Categories of harm

• Establish Harm category from Matrix

Starting Point / Range of Fines

Large Organisations

Range of Fines cont…..

Medium Organisations

Corporate Manslaughter

Top 5 Fines – so far!!

Company Fine Fatal/Non- fatal

Merlin Attractions £5million Non-fatal but significant injuries Tesco Stores Ltd £5million Non-fatal and no injuries Network Rail £4million Fatal ConocoPhillips £3 million Non- fatal – no injuries Cristal Pigment UK Limited £3 million Fatal (*Pre Guidelines) Network Rail, Hatfield and Ladbroke Grove disasters All c. £3 million Multiple fatalities, “very high culpability”

Capstone Building Limited (March 2019)

• Building firm fined after death of employee following

wall collapse

• Bricklayer employed by Capstone working on

construction site – struck by falling masonry after a retaining wall failed while being back filled with concrete

• Failure to appropriately manage work on site / failure to

ensure health and safety of employees and non- employees

• Breach of sections 2 and 3 HSWA – NG plea
• Found G after a trial - £900,000 fine and £60k costs

Karro Foods Limited (March 2019)

• Two workers from food manufacturing company

suffered injuries after falling 4m through rooflight

• 13 April 2016: workers investigating a roof leak - both

stood on the same rooflight and fell through

• Injuries – one suffered fractured ribs, punctured lung

and contusions to right thigh; other suffered fractured skull and injuries to right leg and ear (balance issues)

• HSE concluded rooflights not visible because of dirt and

moss build-up / employees not informed about location

• G plea to section 2 HSWA breach – fined £1.8m and

£8k costs

M&D’s Theme Park (March 2019)

• June 2016 - Motherwell theme park ride derailed at

40mph, injuring 9 people (including 7 children)

• 5 gondolas plunged 30ft to the ground
• Breaches of HSWA – failed to ensure rollercoaster was

maintained, in efficient working order and good repair

• Business owned by 2 brothers for over 50 years
• G plea – owner mentioned co-operation with authorities,

daily safety checks and annual independent inspections (safety inspector had passed the ride as ‘safe’ 16 days before)

• Fined £65k (credit for G plea)
• Scots vs English courts/compare to Merlin Entertainments

Oxleas NHS Foundation Trust (Dec 2018)

• Patient of secure forensic unit gained access to kitchen

and stabbed 2 healthcare workers / obtained lighter and started a fire

• HSE found that the Trust had failed to assess the risks /

failed to take straightforward preventative steps:

• No specific risk assessments (high risk patients)
• No proper training in search techniques
• Previous incidents / patient’s own history
• G plea to 2 breaches of HSWA – fined £300k and £28k

costs

Harvey’s Chicken & Pizza (April 2018)

• Owner / Manager of takeaway alleged to have

committed 12 food hygiene offences, including:

• Poor cleanliness
• Poor maintenance of premises
• Sale of unfit and rotten food (meat and poultry)
• EHO’s from Fylde Council worked with Mr Ahmed to

improve conditions, but had to issue Hygiene Emergency Prohibition Notice to protect public health

• G plea – given 6 month custodial sentence

NPS London Limited (Feb 2019)

• Clarity on sentencing linked organisation in H&S case:
• NPS London – “small organisation”, but is a JV

company partly owned by NPS parent co (“large

• rganisation”)
• July 2017: fined £370k for breach of section 3 HSWA
• C of A – should be classed as ‘small’ – relevant

turnover is that of offending organisation

• But…perfectly proper to have regard to wider finances
• f a linked organisation. Low profitability of NPS

London not of itself a reason to reduce fine

• Full credit for G plea – fine reduced to £50k

Squibb Group Limited (Feb 2019)

• Tried to overturn conviction – failed, but succeeded in

reducing ‘manifestly excessive’ fine

• Originally found G of section 2 but not section 3 breach
• Squibb suggested both employees and non employees

should be treated the same

• C of A – could conclude risk of harm is greater for

employees, but sentence should be reduced:

• High culpability but likelihood of harm should accord with

assessment of expert (low likelihood)

• Fine reduced from £400k to £190k
• Importance of proper assessment of likelihood of harm in

relation to risk / expert evidence can be helpful

Proposed changes – enhanced explanations

• Proposal for judges and magistrates to consider additional

contextual information when weighing up aggravating and mitigating factors

• Reflect current best practice
• Most significant for aggravating factors – cost cutting at the

expense of safety (increase seriousness, indicate higher level of culpability)

• E.g. failing to disclose matters to an authority, failure to obtain

relevant licence or permission

• Most significant for mitigating factors – high level of cooperation

with investigation beyond the expected

• E.g. self-reporting
• Consultation closes on 23 May 2019

What does it all mean?

• Significant increase in fines for large and small organisations / ‘focus on

‘sector’ or ‘industry’

• More individuals are likely to receive custodial sentences
• Likely that ‘offending organisation’s’ turnover will be taken into account
• What’s important?
• Culture, Leadership from the top - Board level briefings & training
• Incident Response Protocol – RIDDOR, Internal Investigation,

response to FFI, response to section 20 interviews, interviews under caution, Enforcement Notices – post incident “legal” protective measures

• The extent to which failures were systemic v. isolated
• Safety management systems in place, robust and properly invested

in

• Role played by senior management and directors (pre and post-

incident)

Other changes in H&S for 2019?

Food allergens – Pret a Manger

• Pret a Manger – 15 year old went into cardiac arrest on

a flight after buying sandwich at Heathrow Airport in 2016

• Contained sesame – one of 14 allergens that

consumers must be informed about as an ingredient

• Current requirements: Food Regulations 2014 – allows

freshly handmade, non pre-packaged food not to be individually labelled

• At the time of incident, Pret had signs in fridge / at tills

telling consumers with allergies to speak to manager

• Will now list all ingredients (including allergens) on

freshly made products and pre-packaged products

Mental Wellbeing: Physical vs Mental

• Focus on physical health / physical injury – what about
• ccupational health / risk?
• Karl Simons (Thames Water): “we all have mental

health…the same way we all have physical health”

• HSE’s updated first aid guidance – companies to

consider ways to manage mental ill health

• MHFA called for changes to H&S legislation to put

mental and physical first aid on equal footing

• H&S Sentencing Guidelines – all about ‘risk’

H&S and Social Media – duty of care?

• Molly Russell – death of 14 year old, whose father is

convinced she was driven to suicide in Nov 2017 by material on Pinterest and Instagram

• Papyrus (charity working to prevent suicide) – talking

to families who believe social media has part to play

• Self regulation: most tech firms will deny harmful

content – if proved, they promise to remove it as a platform for the content, not publisher.

• Proposal to consider imposing a legally enforceable

duty of care on internet ‘giants’ – distressing material to be reported to independent regulator.

RIDDOR 2013 review

• HSE carried out post implementation review of RIDDOR
• Emphasis on work related health as well as safety – list
• f reportable occupational diseases to be expanded
• RIDDOR 2013 requires employers and others in control
• f work premises to report and keep records in respect
• f certain work related accidents:
• 2013 modifications made list of reportable incidents

simpler and shorter

• Review: some occupational diseases no longer needed

to be reported – recommendation to expand list for

• ccupational incidents / narrow list for non-workers

Questions?

Contact details

Kizzy Augustin, Partner T: +44 (0) 20 3826 7302 kizzy.augustin@russell-cooke.co.uk