The Importance of Health and Safety: Ensuring Employee Wellbeing and Avoiding Legal Consequences

Health and Safety 30 November 2018 Julie Gowland Senior Associate

Why bother with health and safety? Healthy employees are less likely to have accidents. Recent study (gov.uk) suggests improvement in wellbeing will result in: • improved workplace performance • increased profitability and productivity • improved quality of output services. Employees should go home as they arrived.

Why bother with health and safety? Good organisations manage all aspects of their operation equally well. The law Costs of investigation / litigation (not just financial). The dangers of prosecution. Fines / publicity.

Health and Safety Law: the basics

The law Employer holds the duty: Health and Safety at Work etc. Act 1974 (HSWA) • S2(1) Duty to ensure as far as is reasonably practical the health, safety and welfare of employees. • S3(1) Same duties towards non-employees. Individuals are responsible too. • S7 Individual duties of employees. • S37 Duties of Directors, Managers; consent, connivance or neglect. Regulations: • S7 Individual duties of employees.

Corporate manslaughter Organisation is guilty of an offence if the way senior management organises or manages their activities: • causes a person’s death • amounts to a gross breach of duty of care; i.e. so as to be considered criminal. Corporate manslaughter is about the business, but…

Gross negligence manslaughter Death as a result of a grossly negligent (though otherwise lawful) act or omission on the part of an individual, i.e. so bad as to be considered criminal. Maximum sentence is life imprisonment.

Sentencing guidelines Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline • Introduced in February 2016 • Set clear guidelines for Judges to sentence health and safety cases • Net effect - dramatically increase sentences

Previously… The only guidelines for health and safety offences were for corporate manslaughter. Courts naturally took a very wide approach. In health and safety, often the focus was the outcome of the accident, i.e. what was the injury? The courts, when considering the financial status of a company, in our experience had less regard for turnover and more regard for profit.

Now… Courts should follow the guidelines so their focus will naturally be narrower. Consideration of risk as opposed to outcome, i.e. what was the risk that existed (whether it eventuated or not)? Guidelines use turnover to establish starting point for sentence. Much more detailed consideration of financial status of company.

Health and safety – organisations Courts determine: • culpability • risk of harm • size of organisation (turnover).

Factors affecting fine Aggravating features Mitigating features Totality Proportionality Impact of fine; on organisation and others; e.g. employees Profit and other financial matters: • Accounts are vital • May need assistance from accountant

Health and safety – individuals Culpability and harm; very similar to organisations. Increased possibility of custodial sentences.

Corporate manslaughter The guidelines are much clearer for corporate manslaughter: • No determination of harm. • Culpability: ‘serious’ and ‘more serious’. The proposed fines are significant and much larger than so far imposed under old guidelines.

Impact Sentencing hearings will take longer and it may be necessary to challenge evidence; Expert evidence may be required to determine correct sentencing categories; and Responses to accidents or regulatory investigations need to be comprehensive and focused on mitigating the most serious sentencing categories. Higher fines Increased legal and remediation costs. Higher insurance premiums?

General position Prosecutions against directors are generally more frequent. But, these tend to be directors of smaller businesses who have a ‘hands on’ role and are generally in fatal cases. Need to have actively done something - encouraged bad practice or neglected to do something that directly led to the incident/risk. Examples – disallowing a capital spend on necessary PPE, condoning unsafe practices to meet production targets, turning a blind eye to maintenance short cuts. Potential example – continually failing to action findings of health and safety committee meetings? Check what your paperwork says – make sure you do it!

Personal impact Major incident (fatality) police would have primacy. Could be arrested; in some cases they arrest now and ask questions later. Interview under caution at police station. Held in custody. Could be released on bail. Long process from arrest to decision making.

Examples of cases we have handled Recycling business – client is only ‘hands on’ Director Fatal accident – operative caught in rotating part. Director faces gross negligence manslaughter and Director and company face health and safety offences. HSE relying upon report of external H&S Consultant, RAs and procedures the company had in place. Risk of prison sentence / disqualified from being a Director.

Examples of cases we have handled Construction company Fatal accident – two workers crushed by a wall. Director interviewed under caution for gross negligence manslaughter and section 37. Had to wait over a year for a decision – no action taken. Huge personal impact.

The law requires you to do all that is… …‘reasonably practicable’. Not defined in law. HSE/Industry guidance is a good place to start.

Defending a claim Risk Assessments If more than five employees, this must be recorded: • What can harm people, who might be harmed and how • Show a proper check was made Evaluate the risks • Significant risks have been assessed Take appropriate controls • Sensible and reasonable Review it and update it

Defending a claim Method Statements Describe in a logical sequence how a job should be carried out safely Includes all identified risks in the RA and measures needed to control those risks Not required by law

Policies and procedures RAMS undertaken by competent person Do not need an external consultant Involve your workers No one size fits all Make sure it is relevant e.g. granny in forklift!!!

Implementation BUT… policies and procedures are not worth anything if not implemented. Through normal management chains Part of appraisal system Monitoring of behaviour Plan, do, check, act.

Plan, do, check, act Plan – determine the type of health and safety policy you wish to adopt and plan for its successful implementation, e.g. identify which manager will be responsible for health and safety and how their success in this task will be measured. Do – identify your risk profile. What are the risks in your workplace and where does the significant harm occur? Organise the delivery of your policy and communicate it to all staff. Check – measure any accidents / incidents and near misses. Assess the performance of your health and safety managers and walk around the workplace physically checking what is being done in practice. Do – react to what you have learnt to improve systems and incentivise staff.

Benefits Successful businesses that manage all aspects of their operation equally well: are more profitable tend to survive are nice to work for and with.

Birketts’ safety mantra Aim is three fold: Say what you do. Do what you say. Have the paperwork to prove it.

Practical steps for improvement Monitoring of health and safety – walk around checks, review minutes of health and safety meetings and audits Supervision Accountability Be proactive – produce an ‘action plan’ for improvement and monitor it

Our specialist areas “ Health and safety Regulatory Transport regulatory Environmental Trading Standards Financial crime Private criminal defence Motoring offences Food law Premises licensing Coroner’s inquests White collar investigations Birketts LLP has “an excellent team, professional but with personality, detailed but with clear advice and little jargon”. Legal 500 [UK 2019] Another sees the firm as “on a par with some of the Silver Circle London firms”. Legal 500 [UK 2019] “

Safety specialists Our team of former HSE Inspectors offers practical and realistic expert advice and assistance. They have a unique knowledge of how the regulator works and what it looks for, which adds real value to the service we provide to your business. They provide emergency response to incidents, as well as day to day practical assistance, and have the support of our team of specialist Solicitors and Barristers where needed. Services offered include: accident investigation health and safety audits and health checks expert advice and assistance health and safety training expert witness services. “ “The response times were always excellent; their approach supportive and timely; their knowledge and business acumen is extremely thorough”. Legal 500 [UK 2019]

Corporate Criminal Defence Julie Gowland Senior Associate Corporate Criminal Defence E: julie-gowland@birketts.co.uk T: 01603 756413 M: 07827 747070

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The Importance of Health and Safety: Ensuring Employee Wellbeing and Avoiding Legal Consequences