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 Section 2 employees Duty to “ensure” the health Section 4 and safety of non-employees Duty to employees Duty of person who has , to any extent, control of premises to ensure premises, access and Section 3 Duty of egress from premises and any controller of plant or substance is safe and premises without risks to health “So far as is reasonably Duty to practicable” non - employees

Individual H&S Duties Duty to take reasonable care of self and others affected Section 7 by work ( s.7 ) Section 37 Where an offence… has been committed with the consent , Duty of connivance , or…attributable to employees any neglect on the part of any director, manager… or a person who purports to Liability of directors and act in that capacity, he/she as well as the senior managers company shall be guilty of that offence ( s.37 )

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, All c. £3 million Multiple fatalities, “very high Hatfield and Ladbroke Grove disasters 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 organisation” )  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  of 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?