A cavalier attitude to safety can lead to porridge. Increased emphasis on individuals in H&S enforcement. Sean Elson Partner, Pinsent Masons

Transcription

1 A cavalier attitude to safety can lead to porridge Increased emphasis on individuals in H&S enforcement Sean Elson Partner, Pinsent Masons

2 Pinsent Masons LLP H&S team For those not aware of our team Specialists in risk management advisory work and safety enforcement work Not personal injury lawyers A multi-disciplinary team that includes; Leading Name status lawyers, non-lawyer Chartered IOSH safety practitioners/higher rights advocates etc. Tier One Legal 500 in each of the offices in England, Glasgow and Belfast Cross border capability with specialists also in Scotland and Northern Ireland

3 For today The context increased focus and activity on health and safety enforcement A refresher on the legal framework The Definitive Sentencing Guidelines Proposed Guideline for gross negligence manslaughter Recent cases and examples Areas of risk for individuals & corporate support

4 The context taking the temperature

5 Sentencing corporate offenders Definitive Guideline for sentencing H&S offences has undoubtedly raised the stakes Anecdotally a greater appetite to account for failings by individuals as well Careful examination by judges of executive pay and exceptional items Duty holders increasingly get that multi-million fines can accrue from seemingly innocuous events

6 Mind the gap Pre Guidelines Post Guidelines Health and Safety Offences (fatalities) A health and safety offence which resulted in death recommended a fine starting point of 100,000. A medium sized organisation (turnover between million) could see the starting point as high as 4 million depending on the level of culpability. For large companies ( 50m+) the guidelines indicate a top level fine of 10 million. Corporate Manslaughter Fine starting point of 500,000; highest fine to date 700,000. A medium size organisation would see a fine starting point of 3 million with a possibility of fines up to 7.5 million. A large organisation faces potential fines of up to 20 million. Health and Safety Offences (non-fatal) For companies small and large alike fines in the tens of thousands. Potential fines in the hundreds of thousands even for smaller companies and in the millions for larger corporates

7 Statistics There have been substantial increases in the number and severity of fines for incidents that caused little or no harm to workers, evidencing a risk based approach to sentencing. Total income from the highest 20 fines in 2016 was higher than the total fine income for the 660 prosecutions successfully brought by the HSE in its reporting year of 2015/ /15 raised 19 million in fines compared to 38.3 million raised in fines in 2015/2016, representing an increase in fines by a factor of two despite a reduction in successful convictions. Average fine rose from 69,500 to 211, fines of million+ since new guidelines in 18 months; more than the amount (42 years)

8 Impact of sentencing guidelines Huge increase in fines seen in the last year Fines over 1m now the norm for large companies sentenced on the basis of risk Fines Total: Feb Feb 2016 = 30.3m Fines total: Feb Feb 2017 = 54m

9 And corporate manslaughter To October cases brought 25 convictions 16 on GP and 9 after trial 6 acquittals

10 Individual H&S liability A refresher

11 Individuals H&S duties HSWA 1974 Duty to take reasonable care of self and others affected by work and to co-operate with employer (s.7) Section 7 Where an offence has been committed with the consent, connivance, or 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 Section 37 Liability of directors and senior managers

12 What might that mean? 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 NB. These can include failures of process as well as physical failings

13 Sent. Guidelines for individuals

14 Analysis No new duties on individuals Consequences are worse if convicted now custody threshold is lower than before: consider, facts are normally emotive involving death or very serious injuries and sentencing must be seen in that context NB: Maximum sentence for H&S offences is 2 years imprisonment Individuals may be disqualified as a director (and are)

15 Analysis In the past 10 years: 264 individuals have received immediate or suspended prison sentences for H&S offences 69 individuals have received prison sentences for manslaughter relating to H&S at work However, the number of prison sentences per year has been rapidly increasing since 2010

16 Analysis And there have already been 30 for 2017/2018

17 Coming soon

18 Manslaughter by Gross Negligence New Sentencing Guidelines proposed Consultation phase closed10 October Estimate by the HSLA that individual sentences increase from average of 5 years to 8 years Not only applicable to H&S cases Aggravating features in the new guideline: Length of time breach has persisted Knowledge of breach Likely to be present in many H&S cases if prosecuted Potentially disproportionately higher fines impact

19 Manslaughter by Gross Negligence Elements of offence: Duty of Care Gross Breach Causation gross breach was a significant cause of death

20 Step One- Offence Category Culpability and Harm: Harm will always be death Culpability split out into: A- Very High B- High C- Medium D- Low

21 Step Two- Starting Point and Range Aggravating Features Include: Previous convictions Others put at risk of harm Actions taken after the event Blame wrongly placed on other Mitigating Features Include: Good character Remorse

22 Sentence starting points Culpability A B C D Starting point 12 years custody Starting point 8 years custody Starting point 4 years custody Starting point 2 years custody Category range years custody Category range 6 12 years custody Category range 3 7 years custody Category range 1 4 years custody

23 Gross negligence in practice Amanda Telfer fatality

24 Amanda Telfer fatality, London August 2012, unsecured windows on pavement each weigh half-tonne, together 655 kg A lawyer walking past in Hanover Square when unglazed windows fell on her Pronounced dead on the scene Windows left leaning against a wall after being delivered the day before the site was ready for installation Frames were seen to move in the wind prompting concern that they might fall into the busy St. Another member of the public had almost been hit in a near miss just days before

25 The proceedings Site Supervisor Kelvin Adsett (IS Europe Limited)- found guilty after trial of gross negligence manslaughter and health and safety breaches West Green Construction Ltd site manager convicted of H&S offence s.7 IS Europe dormant convicted of 2. H&S offences described by judge as the alter ego of Adsett. Limited assets

26 Outcomes Kelvin Adsett 12 months imprisonment Lakin-Hall 6 months suspended for 2 years

27 What was said CPS If Kelvin Adsett, Damian Lakin Hall and IS Europe had complied with their legal responsibilities, Amanda Telfer would not have died. They were delivering and storing large, very heavy window frames and should have known that, unsecured, they presented a serious danger to the public on what was a windy day Prosecution QC There were a series of obvious and in many cases straightforward steps that could have been taken to avoid that risk ranging from cancellation, delay, refusal of delivery on the one hand to the storage, the use of straps and barriers.

28 Sentencing individuals Recent case studies

29 Hot off the press 31 October 2017 Master Construction (Skips) Limited PG to corporate manslaughter and fined 255K MD Jagbir Singh PG to s.37 offence relating to s.2 HSWA, disqualified as a director for eight years and received 12 months imprisonment suspended for 2 years and 300 hours of community service Employee had fallen into a waste sorting machine (when sorting debris?) with no guards or emergency stops. The company had failed to heed earlier warnings including a letter from a H&S consultant

30 Evans & Sons Limited Employee injured when the MD (!) operating machinery stacking girders dropped one on his arm Amputation to left arm and right hand Failed to use appropriate machinery & MD was personally involved in its selection and the method for the task Company PG to s.2(1) HSWA and Regulation 4(3) of PUWER fined 150k Evans s.37 GP x2 in relation to s.2 and Regulation 4 10 months, suspended for 2 years and 200 hours Community service

31 Boundary Scaffolding Ltd PG to s.2 HSWA - 80K Company director PG 6 months suspended for 12 months Worker erecting scaffolding when structure came into contact with overhead power lines Resulted in amputation to arms and feet HSE say scaffolding should not have been erected too close and failed to ensure a safe system of work was in pace

32 C Smith Roofing H&S risk managers at North Yorkshire County Council could see the project from their office window and had concerns Contracted to carry out some roof repairs to a guest house roof with scaffolding erected along the full length of the building Due to a conservatory the company erected only a partial scaffolding at the rear. Two thirds of rear roof edge unprotected 2 operatives at risk of falling 7m Chris Smith PG to WAH 8 months suspended for 2 years

33 Fresco Environmental Limited Employee processing waste carpet when a bale fell on him. Later died from his injuries Bales poorly stacked and no proper controls e.g. no exclusion zones around the stacks MD failed to ensure a safe system of work was in place Company PG s.2(1) HSWA fined 70K MD PG s.37 basis in respect of s.2 6 months suspended 12 months and 100 hours community service

34 In-House Design & Build Workers and members of the public raised concerns HSE visit 2 project sites where it was PC and identified failings Enforcement notices served but still failed to address risks including unsafe WAH, unstable excavations & inadequate plan, manage and monitor arrangements Later in 2015 similar concerns at second site and very poor welfare arrangements Company PG Reg 13 CDM fined 100K Project manager PG Reg 13 fined 15k

35 Relationship to corporate manslaughter Martinisation (London) Limited Two workers died after fall from height in 2014 Lifting operation performed without supervision, training, method statement or risk assessment Advice from lifting company ignored Turnover: 9.7m ( small organisation) Pre-tax profit: 2,400

36 Martinisation outcomes Martinisation (London) Limited 19 May 2017: found guilty following a trial of two counts of Corporate Manslaughter and H&S offences. Director Martin Gutaj also found guilty of H&S offences. Sentence: 1.2m fine (CM) plus 650,000 (H&S) and costs 71,923. Director also sentenced to 14 months imprisonment and disqualified from being a director. Company already in liquidation.

37 Analysis Demonstrably an increase in the number of individuals is this a trend? They remain largely arising out of small companies where there is an obvious link to be drawn between the incident and an individual failure Lower level individuals are also prosecuted e.g. scaffold inspectors, site managers and gas engineers Outcomes are being influenced by the Definitive Guideline as they relate to individuals Still waiting for a prosecution of individual within a very large organisation

38 Areas of risk Failures by individuals at an operational level are an obvious risk construction managers, medical or social care staff etc. Failures in high risk activities management of asbestos, falls from height, traffic management etc. Process failures these can amount to a breach of duty in their own right Awareness of previous failures and failing to act or deciding not to address issues: consider the application of hindsight

39 Areas for review? Internal structures do they match the reality? SMS documents is the language appropriate? Insurance arrangements D&O coverage: scope and limits Incident response supporting individuals in real time Robust methodology for closing out actions? Training appropriate to senior management roles to discharge obligations

40 Questions? Sean Elson, Partner Pinsent Masons LLP E: T: M: