Regulatory Outlook | Health and Safety | July 2017

Current issues

Fines soar in first year of sentencing guidelines

Fines for breaches have tripled since the introduction of new sentencing guidelines on 1 February 2015.19 companies received fines of a million pounds or more in 2016 compared to four in 2015 and none at this level in 2014. Seven-figure fines are no longer limited to cases involving serious injury or death. For more information see this joint report prepared by IOSH and Osborne Clarke.

HSE Fee for Intervention scheme

The Health and Safety Executive has finally responded to concerns from health and safety duty-holders that Fee for Intervention challenges should not be determined by the HSE itself. The concerns were raised in the initial consultation and its triennial review in 2014, as a result of a judicial review brought by OCS Group. A consultation has been issued, proposing that disputes will be heard by a lawyer and an entirely independent panel. It is understood that the proposal is to introduce a new scheme by 1 September 2017.

Privilege and accident investigation reports

Companies have long carried out full and open investigations into accidents in the belief that their findings would be covered by legal professional privilege and, therefore, protected from disclosure to the regulator (the HSE and/or the police). Companies will now need to be more cautious following a landmark legal professional privilege case brought in May 2017. Mrs Justice Andrews ruled that the commencement of a criminal investigation does not mean that there is ‘reasonable contemplation of litigation’. Andrews J also ruled that only documents created with the ‘dominant purpose’ of conducting a defence to litigation/a prosecution, rather than avoiding the prosecution, or indeed fact-finding, will be protected. The judgment is likely to be appealed but organisations should take great care when drafting witness statements and investigation reports as this case increases the risk that they may end up being disclosable to the regulator.

Mental health moves up the agenda within the HSE and organisations

Health and well-being has historically been an area that is under-enforced by the HSE, but this looks likely to change following the first Stress Summit held by the HSE in March 2017. During the summit, the legal duty on employers to manage the health and well-being of staff was reiterated, and the HSE published a new stress tool. This follows the Prime Minister’s commissioning of an initiative to create a new mental health partnership with employers. Organisations are also increasingly interested in strategies to minimise mental health risks, especially given latest figures by bodies such as Mind and Business in the Community that show the substantial losses suffered by businesses due to mental health issues among staff.

In focus: Personal liability

All employees are under a general duty while at work to take reasonable care for the health and safety of themselves and of others who may be affected by their acts or omissions at work, and to co-operate with their employer so far as is necessary to enable it to comply with its own health and safety duties (section 7 Health and Safety at Work, etc. Act 1974.

For a successful prosecution of a director/senior officer, a breach of health and safety law by an organisation must have been ‘committed with the consent or connivance of, or to have been attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate’. The test is broad and covers not only where a director/senior officer actively consents or ‘turns a blind eye’ to the matters that lead to breach, but also where the director/senior officer was unaware but should have made reasonable enquiries of the matters that led to breach.

Individuals can also face prosecution under the common law offence of gross negligence manslaughter, although this will apply only in the most serious cases, where there is evidence that they grossly breached a duty of care that caused or significantly contributed to a death.

Have there been any notable fines or custodial sentences for individuals?

A construction boss was sentenced on 5 May 2017 to twelve months’ imprisonment for gross negligence manslaughter following the death of a lawyer crushed by a stack of large window frames that collapsed on her as she walked past a building site in London. The site manager was found guilty and sentenced to six months’ imprisonment, suspended for two years.

Is this a current area of focus for regulators or prosecuting authorities?

Yes. In 2015-2016, it was reported that 46 company directors and senior managers were prosecuted under health and safety law, compared to an annual average of 24 in the previous five years. The new sentencing guidelines increase the likelihood of a director going to prison, not only where breaches are intentional but also where there is a flagrant disregard or a ‘blind-eye’ mentality shown by directors.

What can individuals do to protect themselves?

Directors and senior officers can minimise the risk of prosecution by ensuring that the company does not breach its duties under health and safety law. In practice, this can be effectively done by following HSE guidance documents ‘Leading Health and Safety at Work’ and ‘Managing Health and Safety at Work’. These documents provide advice on how directors and those in senior management positions can implement an effective health and safety system and governance regime to ensure that appropriate procedures are in place to minimise risk and that a robust reporting structure is implemented to alert those at a senior level to any required action.

Evidence to show that this has been properly considered and implemented will be a good defence should an individual director be prosecuted alongside (or instead of) the company. Companies should also check their Directors and Officers insurance to ensure adequate cover for legal expenses in the event of a prosecution against an individual director or senior officer.

Dates for the diary

2 June 2017 – HSE consultation on proposals to make the dispute process under the FFI Scheme entirely independent closed.

Summer 2017 – HSE expected to issue a discussion document with the intention of simplifying the regulations on hazardous substances, lead, and dangerous substances and explosive atmospheres.

1 September 2017 – Likely date for introduction of new HSE disputes process under the FFI scheme.

Late 2017/early 2018 – Publication of the delayed international standard on occupational health and safety management systems (ISO 45001).