Health and Safety Law Developments Workplace Transport, Moving it safely 3 June 2015 Richard Voke Ashfords Solicitors r.voke@ashfords.co.uk Seminar Title Date 1
Relevant Legislation/Guidance Corporate Manslaughter and Corporate Homicide Act 2007 Health and Safety at Work Act 1974 Workplace (Health, Safety and Welfare) Regulations 1992 Provision and Use of Work Equipment Regulations 1998 (PUWER) Lifting Operations and Lifting Equipment Regulations 1998 (LOLER) Sentencing Council Guidelines - [consultation ended February 2015] A guide to workplace transport safety - HSG136 (3rd edition) Published 2014 Seminar Title Date 2
Cases R v DHL 2012 - IP run over by own HGV because there was no safe system of work for coupling/uncoupling tractor and trailer units (s2-65k) R v H & M Distribution Limited 2012 - whilst working in the yard at H & M Distribution Ltd, Sandy, Beds (s2-150k) R v H E Payne Transport Limited 2012 - Closing back doors to vehicle crushed by vehicle reversing into him, in their capacity as site owner (s3-100k) R v West Midlands Travel Limited 2011 - Employee in the process of manoeuvring West Midlands double decker bus, with a colleague became crushed between a moving bus and a parked bus - fatal (s2, Management regs - 150k) Seminar Title Date 3
Section 2 HSWA Duties to 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 R v Gateway Foodmarkets [1997] R v HTM Ltd [2008] R v Chargot [2008] Seminar Title Date 4
Section 3 HSWA Duties to Non-Employees 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 R v James Porter [2008] HSE v Norwest Holst Ltd, 2007 Crown Court Seminar Title Date 5
Burden and Standard of Proof Burden - Prosecution must prove guilt Standard - beyond reasonable doubt Jury/Magistrates must be satisfied of guilt so that they are sure before convicting EXCEPTION Reasonably Practicable Section 40 Reversal of the burden of proof Davies v Health and Safety Executive [2002] CA Edwards v National Coal Board 1949 Seminar Title Date 6
Over-cautious or Overzealous? HSE prosecution success rate 82% 80% success shows the correct balance between caution and zeal Judith Hackitt LA prosecution success rate 94% Environment Agency 99% Levels of risk or levels of proficiency? Seminar Title Date 7
Corporate Manslaughter & Corporate Homicide Act 2007 Clause 1(1) Organisation guilty if the way in which its activities are managed or organised Causes a persons death and Amounts to a gross breach of a relevant duty of care Clause 1(3) Organisation guilty of an offence if the way in which its activities are managed or organised by its senior management is a substantial element of the breach Seminar Title Date 8
Jury to consider whether gross breach gross breach if conduct falls far below what can be reasonably be expected of the organisation in the circumstances Jury must consider whether organisation failed to comply with H&S legislation, and if so: How serious was the failure How much risk of death it posed. Seminar Title Date 9
Key components Gross Jury may consider whether evidence showed: Organisation s attitudes, policies, systems, practices (safety culture) encouraged failures or tolerated them Have regard to health and safety guidance This will not preclude the jury considering other evidence regarded as relevant Seminar Title Date 10
Key components - senior management Senior management persons who play significant roles in: Making decisions about how the whole or a substantial part of the activities are managed or organised (Strategic - MDs, FDs or in LAs = corporate management team), or The actual managing or organising of the whole or substantial part of those activities (Operations, Regional managers) Seminar Title Date 11
Corporate Manslaughter Prosecutions R v Cotswold Geotechnical (Holdings) Ltd ( Feb 2011) Fined 385,000 in equal instalments over 10 years R v JMV Farms Ltd (Northern Ireland) (May 2012)Fined 187,500 payable in 6 months R v Lion Steel Equipment Ltd (July 2012) Fined 480,000 over 3 years Seminar Title Date 12
R v Peter Mawson Ltd [2015] 42 year old employee fell through a skylight from a 7m height while working on a rooftop and later died in hospital. Company pleaded guilty Fines - 200,000 for Corporate Manslaughter offence, 30,000 under S.2 HSWA. Costs 31,500 Owner of the firm sentenced to 8 months prison sentence, suspended for 2 years, 200 hours community service, a publicity order to be posted on the website for a set period and a half-page statement in the local newspaper. Seminar Title Date 13
Acquittals PS & JE Ward Ltd [2014] Death of employee from electric shock - Acquittal of Corporate Manslaughter Charge. - Convicted under S. 2 (1) HSWA R v MNS Mining Ltd [2014] Death of four miners after flooding of a mine they were working on - Acquittal of Corporate Manslaughter Charge. - Mine manager charged with 4 counts of gross negligence manslaughter Seminar Title Date 14
Health and Safety Offences Guideline Seminar Title Date 15
What offences does the consultation focus on? The Sentencing Council is consulting on the draft guidelines for sentencing the following (not on the legislation that establishes these offences): Health and Safety Offences Food Safety Offences Hygiene Offences Corporate Manslaughter Seminar Title Date 16
Background In 2010 the SGC Definitive Guideline was introduced. Although not mandating any tariff, the guideline indicated that the appropriate fine for : fatal health and safety offences - will seldom be less than 100,000 ; and corporate manslaughter - will seldom be less than 500,000 and may be measured in millions of pounds Seminar Title Date 17
Health and Safety and Food Safety Offences There is very little specific guidance presently - usually have to extract applicable principles from sentencing in cases (R v F Howe and Son [1999]) Inconsistencies exist - lack of familiarity with such cases Fines criticised as too low relative to the harm caused, the culpability of the offender and on occasions, to the means of the offender Impact of Sellafield and Network Rail Seminar Title Date 18
Impact of Proposed Guidelines The proposed guidelines a departure from acceptance that health and safety cases arise out of a limitless range and variety of circumstances and seriousness This departure is in line with the recently published Sentencing of Environmental Offences They reflect a desire to help ensure greater consistency BUT The main concern will be that the level of fines will be tied in to the corporate turnover resulting in significant increases, particularly for those involving large organisations. Seminar Title Date 19
Overarching aims S164 of CJA 2003 fines should reflect seriousness of offence, financial circumstances Council believes that fine should reflect extent fallen below required standard remove economic gain real economic impact Bring home to management and shareholders need to comply Studies suggested that there was inconsistencies in achievement of the above aims in existing non-tariff regime. Seminar Title Date 20
Categories of organisations Large Turnover or equivalent: 50 million and over Medium Turnover or equivalent: 10 million and 50 million Small Turnover or equivalent: between 2 million and 10 million Micro Turnover or equivalent: not more than 2 million Charities Where a fine falls on public or charitable bodies, the fine should normally be substantially reduced. Seminar Title Date 21
Approach to Guidelines for health and safety offences Organisations: Step one: Determining the offence category - Culpability - Harm: 1) Risk of harm created. 2) significant number exposed/ significant cause of actual harm Step two: Starting point and category range financial information (turnover will be starting point), then consider aggravating and mitigating factors Step three: Check whether the proposed fine based on turnover is proportionate to the means of the offender (this provides some flexibility) Step four: Consider other factors that may warrant adjustment of the proposed fine. (e.g. innocent third parties) court should adjust to avoid any unjustified wider consequences (e.g. losses of jobs). Step five to nine: standard steps including reduction for early guilty plea. Seminar Title Date 22
Approach to Guidelines for health and safety offenses Individuals: Step one: Determining the offense category - Culpability - Harm: 1) Risk of harm created. 2) significant number exposed/ significant cause of actual harm Step two: Starting point and category range financial information and the. Court will identify a starting point and range then consider aggravating and mitigating factors Step three: Review any financial element of sentence (review quantifiable economic benefit) Step four to nine: standard steps including reduction for early guilty plea. Obviously custodial sentence possible as well as fine! Seminar Title Date 23
Step 1: Culpability categories - Organisations Very high deliberate breach / flagrant disregard. High offender fell far short of standard e.g. ignoring concerns raised by employees / allowing breaches to subsist over long period of time. Systematic failings. Medium fell short of the appropriate standard. Low - did not fall far short of appropriate standard e.g. significant efforts made to address risk although they were inadequate / no prior warning. Seminar Title Date 24
Step 1: Harm 2 stages First risk of harm created by the offence: 1.The seriousness of the harm risked by the offenders breach (level A, B or C). 2.The likelihood of that harm arising (High, Medium, Remote). Second: Exposed a significant number of people to the risk of harm. AND Whether the offence was a significant cause of actual harm (more than minimal, negligible, trivial contribution). Victims actions highly unlikely to be looked at Seminar Title Date 25
Step 1: Harm Seriousness of harm risked Level A: Death Physical / Mental impairment resulting in life dependency Health condition resulting in significantly reduced life expectancy Level B: Physical / Mental impairment not amounting to level A. A progressive, permanent or irreversible condition Level C: All other cases not falling within level A / B Likelihood of harm High Harm category 1 Harm category 2 Harm category 3 Medium Harm category 2 Harm category 3 Harm category 4 Remote Harm category 3 Harm category 4 Harm category 4 (start towards bottom of range) Seminar Title Date 26
Approach to Guidelines for health and safety offences Organisations: Step one: Determining the offence category - Culpability - Harm: 1) Risk of harm created. 2) significant number exposed/ significant cause of actual harm Step two: Starting point and category range financial information (turnover will be starting point), then consider aggravating and mitigating factors Step three: Check whether the proposed fine based on turnover is proportionate to the means of the offender (this provides some flexibility) Step four: Consider other factors that may warrant adjustment of the proposed fine. (e.g. innocent third parties) court should adjust to avoid any unjustified wider consequences (e.g. losses of jobs). Step five to nine: standard steps including reduction for early guilty plea. Seminar Title Date 27
Step 2: Large companies over 50m High culpability Medium culpability Seminar Title Date 28
Step 2: Category Range Micro - turnover up to 2m: 50 (low culpability cat 4-450,000 very high culpability cat 1) Small - between 2m and 10m: 100-1,600,000 Medium between 10m and 50m: 1,000-4,000,000 Large - 50m and over: 3,000-10,000,000 Seminar Title Date 29
Step 2: Individual Ranges - Custodial Seminar Title Date 30
Step 2: Aggravating and mitigating factors for individuals and organisations Movement within range Factors increasing seriousness previous convictions, cost cutting, obstructions of justice, poor record, falsification of documents / licenses, deliberate failure to obtain / comply with licenses Factors reducing seriousness or reflecting personal mitigation no previous, steps taken to remedy, cooperation, good record, acceptance of responsibility Seminar Title Date 31
Steps 3-9: Step 3: Proposed fine based on turnover is proportionate to the means of the offender court to step back and adjust e.g. profit margins, economic benefit, put out of business. Step 4: Other factors that may warrant adjustment of the proposed fine public or charitable bodies e.g. impact on employment, customers and local economy (but not shareholders or directors). Step 5: Consider any factors which indicate a reduction for assistance to the prosecution e.g. assistance given to the prosecutor. Seminar Title Date 32
Steps 3 9: Step 6: Reduction for guilty pleas Step 7: Compensation and ancillary orders corporate manslaughter, includes publicity, remediation Step 8: Totality principle Step 9: Reasons Seminar Title Date 33
Corporate Manslaughter Medium turnover 10m to 50m Small 2m to 10m Seminar Title Date 34
UK companies abroad Health and Safety Corporate Manslaughter and Corporate Homicide Act 2007 - jurisdiction require that the actual death in UK territory, or territorial waters, or on a UK registered ship or aircraft or offshore installation HSAWA - HSAWA is limited to UK territory and territorial waters, along with UK registered ships and aircrafts and offshore installations, and apparently has no application outside those areas for example, in relation to sending employees overseas to work in potentially hazardous locations. BUT.. Seminar Title Date 35
UK companies abroad Health and Safety The HSAWA imposes general duties to ensure that personnel are not exposed to risk of harm, and consequently, if the decision to send personnel into a clearly dangerous situation outside the UK was made by a company within the UK, then there may be a breach of those general duties at that point in time. More likely would be the scenario where the decision to send someone overseas was made in the UK, which should have been supported by a suitable and sufficient risk assessment of risks and hazards, as supported by the Management of Health and Safety at Work Act 1999. (Regulation 3 imposes a requirement on all employers to carry out suitable and sufficient risk assessments of all potentially hazardous activities.) Seminar Title Date 36
Ashfords Regulatory Services Health, safety, environmental, fire, trading standards, security Inside view from former HSE, Environmental Health, Trading Standards, Security Services and Fire Safety Officers. Ability to achieve significant cost savings, bolster the brand and improve efficiencies. Expert benchmarking. Primary Authority partnering and Assured Advice - criminal and civil reassurance of compliance. Seminar HSE Offering Title Date 37
Questions Richard Voke (Partner) Business Risk and Regulation Ashfords Solicitors Tel: 01173218098 Mob: 07967327282 r.voke@ashfords.co.uk Seminar Title Date 38