Health and Safety Woodfines’ Autumn Transport

Conference Cranfield

What to do when the Inspector calls!

Claire Fraser Barrister

36 Group 4 Field Court, London, WC1R 5EF T +44 (0)20 7421 8007 F +44 (0)20 7421 8035 www.36group.co.uk 28th November 2019

• The content of the slides are a selection of headings to consider, in the area of Health and Safety with references to law and regulation.

• The purpose is to give no more than a general overview, and provide the back drop to addressing some examples from recent cases.

• Specific issues will always need specific advice!

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Legislation

Health and Safety At Work etc Act 1974

Section 2 (1) General duties of employers to their 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”

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• Health and Safety At Work etc. Act 1974

Non-exhaustive list of matters to which that duty extends :

2(2)(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

2(2)(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

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• Health and Safety At Work etc. Act 1974

2(2)(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;

2(2)(d) so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;

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• Health and Safety At Work etc. Act 1974

2(2)(e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.

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• Health and Safety At Work etc. Act 1974

2(2)(3) Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees.

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• Health and Safety At Work etc. Act 1974

Section 3 - General duties of employers and self-employed to persons other than their employees

3(1) 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.

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• Health and Safety At Work etc. Act 1974

Section 3 - General duties of employers and self-employed to persons other than their employees

…

3(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

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• Health and Safety At Work etc. Act 1974

3(3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.

• Method statement

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• Health and Safety At Work etc. Act 1974

• 4.— General duties of persons concerned with premises to persons, other than

their employees,

• (1) This section has effect for imposing on persons duties in relation to those who—

• (a) are not their employees; but

• (b) use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there, and applies to premises so made available and other non-domestic premises used in connection with them….

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• Health and Safety At Work etc. Act 1974

• 4.— General duties of persons concerned with premises to persons, other than

their employees,

• … 4(2) It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.

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• Health and Safety At Work etc. Act 1974

7. General duties of employees at work.

It shall be the duty of every employee while at work—

(a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and

(b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.

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• Health and Safety At Work etc. Act 1974

Regulations

S 15 Health and safety regulations.

• Power for the Secretary of State to make Health and Safety regulations.

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Regulations

• Health and Safety (Enforcing Authority) Regulations 1989/1903

• Workplace (Health, Safety and Welfare) Regulations 1992/3004

• Management of Health and Safety at Work Regulations 1999/3242

• Control of Substances Hazardous to Health Regulations 2002/2677

• Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013/1471 -- RIDDOR

• Construction (Design and Management) Regulations 2015 (S.I. 2015/51)

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• Manual Handling Operations Regulations 1992/2793

• Provision and Use of Work Equipment Regulations 1998/2306

• Health and Safety (Display Screen Equipment) Regulations 1992/2792

• Personal Protective Equipment at Work Regulations 1992/2966

• Work at Height Regulations 2005/735

• Control of Noise at Work Regulations 2005/1643

• Control of Vibration at Work Regulations 2005/1093

• Control of Asbestos Regulations 2012/632

• Control of Major Accident Hazards Regulations 2015/483

• etc

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• HSE issue guidance documents

• Some specific to an industry

• Some of general application

Guidance:

http://www.hse.gov.uk/guidance/index.htm

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Types of reportable incidents : • If someone has died or has been injured because of a work-related

accident this may have to be reported. • Not all accidents need to be reported, other than for certain gas incidents,

a RIDDOR report is required only when: • the accident is work-related • it results in an injury of a type which is reportable • Consider reporting to your insurer

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Types of reportable injury

• The death of any person

• All deaths to workers and non-workers, with the exception of suicides, must be reported if they arise from a work-related accident, including an act of physical violence to a worker.

• Specified injuries to workers (List last updated 2013)

• Specified injuries are (regulation 4):

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• fractures, other than to fingers, thumbs and toes

• amputations

• any injury likely to lead to permanent loss of sight or reduction in sight

• any crush injury to the head or torso causing damage to the brain or internal organs

• serious burns (including scalding) which: • covers more than 10% of the body • causes significant damage to the eyes, respiratory system or other vital organs

• any scalping requiring hospital treatment

• any loss of consciousness caused by head injury or asphyxia

• any other injury arising from working in an enclosed space which: • leads to hypothermia or heat-induced illness • requires resuscitation or admittance to hospital for more than 24 hours

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Over-seven-day incapacitation of a worker

• Accidents must be reported where they result in an employee or self-employed person being away from work, or unable to perform their normal work duties, for more than seven consecutive days as the result of their injury.

• This seven day period does not include the day of the accident, but does include weekends and rest days. The report must be made within 15 days of the accident.

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Over-three-day incapacitation

• Accidents must be recorded, but not reported where they result in a worker being incapacitated for more than three consecutive days.

• If you are an employer, who must keep an accident book under the Social Security (Claims and Payments) Regulations 1979, that record will be enough.

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• Non fatal accidents to non-workers (e.g. members of the public)

• Accidents to members of the public or others who are not at work must be reported if they result in an injury and the person is taken directly from the scene of the accident to hospital for treatment to that injury. Examinations and diagnostic tests do not constitute ‘treatment’ in such circumstances.

• There is no need to report incidents where people are taken to hospital purely as a precaution when no injury is apparent.

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Occupational diseases

• Employers and self-employed people must report diagnoses of certain occupational diseases, where these are likely to have been caused or made worse by their work: These diseases include (regulations 8 and 9):

• carpal tunnel syndrome; severe cramp of the hand or forearm;

• hand-arm vibration syndrome; tendonitis or tenosynovitis of the hand or forearm;

• occupational asthma; occupational dermatitis;

• any occupational cancer;

• any disease attributed to an occupational exposure to a biological agent.

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Dangerous occurrences

• Dangerous occurrences are certain, specified near-miss events. Not all such events require reporting. There are 27 categories of dangerous occurrences that are relevant to most workplaces, for example:

• the collapse, overturning or failure of load-bearing parts of lifts and lifting equipment;

• plant or equipment coming into contact with overhead power lines;

• the accidental release of any substance which could cause injury to any person.

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HSE Inspector

• A person may alert the HSE or Local Authority to something they are concerned about, without there being any reported accident or injury. This may be someone at a delivery/collection point loading bay or delivery/ collection to a site

• Case example : items being thrown down from a building into a skip during building work just by a railway platform. (R –v- Bashir; R –v- Malik (Contractors) Ltd

• An accident may be reported

• Case example : person injured falling from a loading bay, or ladder; gas oven ignition misfired and kitchen worker left with singed hair; person hit by reversing vehicle.

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Inspector will want to see

• Accident records/report book

• Policies

• Will look around for evidence of general compliance with safe system of work - Case example R –v- McMurray : RTA Investigation ->HSE -> HMRC.

• Risk Assessments and Method statements of contractors /sub-contractors

• May investigate further, taking photographs, statements from witnesses etc.

• Co-operation

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Action by Inspector:

• Notice(s) of Contravention,

• Prohibition Notice(s), and Improvement Notice(s)

• Prohibition Notices • May stop all or part of the business operating

• Will be lifted upon compliance, rectification of contravention

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Further action by Inspector: leading to

Criminal Prosecution

• Health and Safety at Work Act s.33 • For risk of injury, even if no injury occurred • For cases in which injury did occur, relying on the obvious failure to manage

the risk • For cases in which death occurred

• Manslaughter (Gross Negligence)

• Corporate Manslaughter

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Gross negligence Manslaughter • A owed a duty of care to B;

• A breached that duty of care;

• It was reasonably foreseeable that A’s breach of his/her duty of care gave rise to a serious and obvious risk of death;

• A’s breach of her duty caused the death of B because it was a significant contributory factor; and

• Having regard to the risk of death, A’s conduct was so bad in all the circumstances as to amount to a criminal omission.

See: R –v- Honey Rose [2017] EWCA Crim 1168;

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Penalties:

Sentencing Guidelines:

Sentencing Council Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guidelines

Apply to any case sentenced after 1st February 2016

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Organisations (Health and Safety Offences)

• Maximum whether tried on Indictment or Summarily • Unlimited Fine

• Range £50 fine - £10 million fine (Court can exceed this range)

• Two core elements : Culpability and Harm

• Turnover £50m+, £10-£50m, £2-£10m, and under £2m

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Culpability

Very High: Deliberate breach/flagrant disregard of the law

High: Offender fell far short of the appropriate standard; for example, by:

• failing to put in place measures that are recognised standards in the industry•

• ignoring concerns raised by employees or others•

• failing to make appropriate changes following prior incident(s) exposing risks to health and safety•

• allowing breaches to subsist over a long period of time•

• Serious and/or systemic failure within the organisation to address risks to health and safety

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Culpability

Medium: Offender fell short of the appropriate standard in a manner that falls between descriptions in ‘high’ and ‘low’ culpability categories

• Systems were in place but these were not sufficiently adhered to or implemented

Low: Offender did not fall far short of the appropriate standard; for example, because:

• significant efforts were made to address the risk although they were inadequate on this occasion•

• there was no warning/circumstance indicating a risk to health and safety•

• Failings were minor and occurred as an isolated incident

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Harm:– Seriousness of harm risked, measured against High Medium or Low likelihood of harm - with 4 Harm Categories

Level A: death, lifelong dependency, significant reduction to life expectancy

Level B: injury causing substantial long term effect, physical or mental, progressive permanent or irreversible condition

Level C: not A or B

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• Next, the court must consider if the following factors apply. These two factors should be considered in the round in assigning the final harm category.

• i) Whether the offence exposed a number of workers or members of the public to the risk of harm. The greater the number of people, the greater the risk of harm.

• ii) Whether the offence was a significant cause of actual harm. Consider whether the offender’s breach was a significant cause of actual harm and the extent to which other factors contributed to the harm caused. Actions of victims are unlikely to be considered contributory events for sentencing purposes. Offenders are required to protect workers or others who may be neglectful of their own safety in a way which is reasonably foreseeable

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Factors increasing sentence

Statutory aggravating factor: Previous convictions,

Other aggravating factors include:

• Cost-cutting at the expense of safety

• Deliberate concealment of illegal nature of activity

• Breach of any court order

• Obstruction of justice

• Poor health and safety record

• Falsification of documentation or licences

• Deliberate failure to obtain or comply with relevant licences in order to avoid scrutiny by authorities

• Targeting vulnerable victims

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Factors reducing seriousness or reflecting mitigation

• No previous convictions or no relevant/recent convictions

• Evidence of steps taken voluntarily to remedy problem

• High level of co-operation with the investigation, beyond that which will always be expected

• Good health and safety record

• Effective health and safety procedures in place

• Self-reporting, co-operation and acceptance of responsibility

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Ancillary orders

Remediation

• Under section 42(1) of the Health and Safety at Work Act 1974, the court may impose a remedial order in addition to or instead of imposing any punishment on the offender.

• An offender ought by the time of sentencing to have remedied any specific failings involved in the offence and if it has not, will be deprived of significant mitigation.

• The cost of compliance with such an order should not ordinarily be taken into account in fixing the fine; the order requires only what should already have been done.

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Ancillary orders (cont’d)

Forfeiture

• Where the offence involves the acquisition or possession of an explosive article or substance, section 42(4) enables the court to order forfeiture of the explosive.

Compensation

• Where the offence has resulted in loss or damage, the court must consider whether to make a compensation order. The assessment of compensation in cases involving death or serious injury will usually be complex and will ordinarily be covered by insurance. In the great majority of cases the court should conclude that compensation should be dealt with in the civil court, and should say that no order is made for that reason.

• If compensation is awarded, its is a priority over a fine, and over prosecution costs

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Individual

Health and Safety offences

Maximum:

• when tried on indictment: unlimited fine and/or 2 years’ custody

• when tried summarily: unlimited fine and/or 6 months’ custody

Offence range: Conditional discharge – 2 years’ custody

Manslaughter (Gross Negligence) Life imprisonment

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Individual Culpability (Health and Safety Offences Guidelines)

• Very high: Where the offender intentionally breached, or flagrantly disregarded, the law

• High: Actual foresight of, or wilful blindness to, risk of offending but risk nevertheless taken

• Medium: Offence committed through act or omission which a person exercising reasonable care would not commit

• Low: Offence committed with little fault, for example, because:

• significant efforts were made to address the risk although they were inadequate on this occasion•

• there was no warning/circumstance indicating a risk to health and safety•

• failings were minor and occurred as an isolated incident

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Individual

Mitigation:

• In addition to those for an organisation

…

• Good character and/or exemplary conduct

• Inappropriate degree of trust or responsibility

• Mental disorder or learning disability, where linked to the commission of the offence

• Serious medical conditions requiring urgent, intensive or long term treatment

• Age and/or lack of maturity where it affects the responsibility of the offender

• Sole or primary carer for dependent relatives

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Individual

Gross Negligence Manslaughter

R –v- Oughton [2011] 1 Cr. App. R. (S.) 62; [ 2 Defendants - imprisonment 13 months and 3 years for Count 1 GNM, respectively ; O alone Count 2 : 5 years 3 months for death by dangerous driving]

Sentencing Council Guidelines 1st November 2018

• https://www.sentencingcouncil.org.uk/offences/crown-court/item/gross-negligence-manslaughter/

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Corporate Manslaughter

• Maximum: unlimited fine

• Offence range: £180,000 fine – £20 million fine

A company can be prosecuted and sentenced after going into liquidation, and failing to attend the trial

R –v- Sterecycle (UK) Ltd - Crown Court at Sheffield (Mr Justice Jay)

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End

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