Key Risks in Health & Safety - UK
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1 University of Sussex Senior Management Group New challenges in Health and Safety law and how to stay out of jail Presented by Kizzy Augustin, Pinsent Masons LLP 1 March 2013
2 Overview Key new risks in Health and Safety Individual H&S Duties / imprisonment for individuals Corporate Manslaughter and Corporate Homicide Act 2007 Sentencing guidelines for fatalities Recession Cost Recovery (HSE FFI and Defence Costs Orders University H&S Duties Case Law update Fire Safety How to avoid criminal liability top tips
3 Key New Risks in H&S
4 Individual H&S duties (1) Duty to take reasonable care of self and others affected by work (s.7) Individuals Section 7 Section 37 Where an offence has been committed with the consent, connivance, or is 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 Liability of directors and senior managers
5 Individual H&S duties (2) Consent - have knowledge and endorse/direct it Connivance have knowledge and ignore it Neglect should have been aware (even if they are not) and taken action
6 Individual H&S duties (3) Fines / penalties Section 7-5,000 Section 37 Magistrates 20,000 Crown unlimited (typically 50k to 100k) Imprisonment up to 2 years (or community service!) Disqualification for up to 15 years (typically 5 years)
7 Corporate Manslaughter where are we now? (1) Corporate Manslaughter and Corporate Homicide Act 2007 what is it? Introduced new manslaughter offence for organisations No directing mind hurdle No new offence for individuals Only if accident in the UK Penalty unlimited fine, remedial or publicity orders In force since 6 April 2008
8 Corporate Manslaughter (2) Prosecution must prove the way in which activities managed or organised: Caused a person s death; Amounts to a gross breach of a relevant duty of care owed to the deceased; and Senior management s role in the breach was a substantial element in the breach Penalties unlimited fine (multi-million); remedial order; and / or publicity order
9 Corporate Manslaughter(3) Roles & responsibilities scrutinised against policies/procedures/industry guidance Cotswold Geotechnical Holdings - first company to be convicted under the Act (fine was 385k) death of geologist after trench collapse JMW Farms Limited - fined 187k + 13,000 costs in May 2012 following death of a farm worker Lion Steel Ltd Employee fell through fragile roof panel, company and three directors prosecuted for manslaughter. Highest fine so far ( 480k + 84k costs) PS & JE Ward Ltd - Horticultural supplier based in Norfolk charged with corporate manslaughter following electrocution of employee at a nursery. MNS Mining Ltd - owner of a colliery where four miners died has been charged with corporate manslaughter case adjourned till 25 Feb 2013 for pleas. Prince s Sporting Club Ltd young girl fell from a banana boat and died after being hit by the boat towing it. Company charged with corporate manslaughter and s.3 HSWA (director also charged in individual capacity) 56 open corporate manslaughter investigations
10 Corporate Manslaughter (4) - lessons learnt? CM is a very serious offence met with very high fines Larger companies should expect multi-million pound fines Important for directors/senior managers to ensure: safety management systems are robust they understand their own health & safety obligations and set clear priorities for H&S comply with HSE / industry specific guidance
11 Sentencing Guidelines Sentencing Guidelines for Fatalities Fines (Corporate Manslaughter) The appropriate fine will seldom be less than 500,000 and may be measured in millions of pounds Fines (HSWA involving death) The appropriate fine will seldom be less than 100,000 and may be measured in hundreds of thousands of pounds or more
12 Health & Safety (Offences) Act 2008 Came into force January 2009 Imprisonment for up to 2 years for mainstream H&S offences
13 The Recession Pressure on finances could that impact on safety budget? Staff cuts impact on safety critical roles and site managers responsibilities? Pressure on contractors/service providers Impact upon fine if cost cutting at the expense of safety
14 HSE Enforcement Costs Recovery Fees for intervention (FFI) - what does it mean? Definition of material breach What does it cost? Time period to pay Appeal process independence? Problems / issues? Implications of inspector behaviour?
15 Costs Recovery (2) Loss of Defence Costs Orders From October 2012: Companies no longer able to recover legal costs if acquitted in the criminal courts Acquitted individuals right to recover costs either removed or significantly reduced Incentive for clients to defend a prosecution?
16 University Health and Safety duties (specifically for academic / non-executive members at the University)
17 Roles and Responsibilities Council manages the University s corporate risks Vice Chancellor executive oversight of H&S Registrar / Secretary overseeing H&S management Director of H&S advising the University on H&S Heads of Schools responsible for the H&S of staff, students and visitors / complying with legislation Supervisors / line managers key role in delivering good H&S performance Employees & students legal responsibility for their own safety and for others / must co-operate with all University measures provided for H&S
18 Off Campus Responsibilities University retains overall responsibility for H&S of its staff and students Responsibility may be shared with third parties Insurance policies should cover off-campus activities Must have: Safe system of work Risk assessments / arrangements for practical work Suitable venues / providers (competence?) Work placements?
19 Work Related Stress Policies Stress inability to cope with demands placed upon them (applies to all levels of the University) Legal position Work related stress is not RIDDOR reportable HSE Management Standards not a legal requirement but.. Management of Work Related Stress Policy & Work Related Stress Guidance - University documents Implications of work related stress? Cases?
20 Case Law
21 Risk and Reasonable Foreseeability Risk? Section 2 & 3 HSWA duties same level of response Relevance of an accident - Evidence of risk, not necessarily an offence Foreseeability: The accident (no) The risk in question (yes) The risk of any injury (yes)
22 Case Law Health & Safety HSWA cases examples of significant fines Apollo / Keepmoat (s.3 HSWA) - Company fined following carbon monoxide poisoning (Dec 2012) UK Power Networks (s.2 HSWA) - Company hit with 420,000 bill after explosion death (Jan 2013) Applied Fusion Ltd (s.2 HSWA) Firm fined 1 for banksman fatality (Feb 2013) Cheshire Gates (gross neg manslaughter) - Director charged over electric-gate child death (Feb 2013)
23 Fire Safety
24 Fire Significant Fines R v New Look Retailers Limited Court of Appeal June 2010 Upheld fine of 400k severe but not disproportionate No death/injuries No causation but failed to manage risks Chumleigh Lodge Hotel: Fire After LFB s visit serious concerns: defective fire doors, blocked escape routes and absence of smoke alarms Six charges under the RRO 2005 total fine of 260k Courts imposing significant fines under RRO 2005
25 Fire - Article 5 (3) duty holders Christopher Morris - January 2011 Prosecution of fire alarm engineer (first of its kind) Former fire fighter failed to maintain fire alarm system in care home and failed to inform home owners of systems deficiencies 5,000 fine plus costs of 6,000 O Rourke September offences of failing to make suitable and sufficient risk assessment O Rourke purported to carry out fire risk assessments on both properties cut and paste job G plea 8 months imprisonment on each count (concurrent) Owner also sentenced to 8 months imprisonment
26 How to avoid criminal liability
27 Top tips to reduce exposure to liability (1) Key Questions: The Culture Test Attitude: What do the staff think & what would they say to an inspector? How seriously does the organisation take H&S? Systems & Accepted Practices: Do systems reflect what happens on the ground? Is implementation the same in Lands End and John O Groats? Selection and supervision of contractors: What about specialist accredited contractors? Asbestos? Fire Safety? Plumbers / GasSafe?
28 Top tips to reduce exposure to liability (2) IoD Guidance Leading Health and Safety at Work Leadership Actions for Directors and Board Members (INDG 417) Guidance published in October 07 An agenda for the effective leadership of health and safety Applies to all directors, officers and their equivalents
29 Top tips to reduce exposure to liability (3) Responding to Incidents Is there a duty to investigate accidents? MHSWR 1999 Privilege reports do not have to be disclosed to Police, HSE, Coroner or PI claimants Understanding powers of HSE (voluntary / compulsory / PACE interviews)
30 ANY QUESTIONS?
31 Kizzy Augustin, Associate, Pinsent Masons LLP Combining the experience, resources and international reach of McGrigors and Pinsent Masons Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) authorised and regulated by the Solicitors Regulation Authority, and by the appropriate regulatory body in the other jurisdictions in which it operates. The word partner, used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm of equivalent standing. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP s registered office: 30 Crown Place, London EC2A 4ES, United Kingdom. We use Pinsent Masons to refer to Pinsent Masons LLP and affiliated entities that practise under the name Pinsent Masons or a name that incorporates those words. Reference to Pinsent Masons is to Pinsent Masons LLP and/or one or more of those affiliated entities as the context requires. Pinsent Masons LLP 2013 For a full list of our locations around the globe please visit our websites:
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