Health & Safety Law Employers duties and liabilities Jonathan Cripwell, Partner

Overview Criminal Core duties / risk management / risk assessment Accident investigation – practical issues for employers Enforcement options Co extensive legal duties Criminal Civil

Core duties on Employer Common law duty to take reasonable steps to avoid foreseeable risks to employees Provide safe place of work Provide safe systems of work Provide safe plant and equipment Provide competent staff

Core duties on Employers Health and Safety legislation Statutory duties imposed upon employers through primary legislation Health and Safety at Work Act 1974 Secondary legislation through Regulations Management of Health and Safety at Work Regulations 1999

Risk management Why is it necessary? To comply with core duties To control health and safety risks in your business and help prevent accidents and ill health Integral part of the business and its success

Risk management What is it? Process of assessing risks that arise in the workplace Putting in place sensible measures to control identified risk Implementation, monitoring and review of those measures

Risk Assessment Identify the hazards Decide who might be harmed and how Evaluate the risks and decide on precautions Record your findings and implement them Review your risk assessment

Risk Assessment Engage all employees in the process - from management to shop floor Check that what you say you do happens in practice Ensure employees have the right training Ensure plant and equipment is properly used and maintained Is there evidence of compliance with Health & Safety law

Accident Investigation Criminal liability Sanction is punishment for breach of the criminal law Civil liability - law of negligence / statutory duties. Sanction is compensatory - damages for injury/loss

Accident Investigation The Enforcement Authorities (criminal liability) Health & Safety Executive Local Authority Crown Prosecution Service

Accident Investigation Powers of Inspectors Enter premises Direct work areas to be undisturbed during investigation Examine and investigate as necessary Require production of documents Disable dangerous plant

Accident Investigation Require persons to provide information/ answer questions S9 Criminal Justice Act (voluntary witness statement) S 20 H&SWA (compelled witness statement) Interview under PACE (suspects)

Accident Investigation Pitfalls in practice Interviews under caution (suspect - senior management) RIDDOR forms Disclosure to HSE of potentially privileged documents Must be in a position to demonstrate evidence of safety management systems/policies/risk assessments/training records

Enforcement options No formal action Simple Caution Improvement Notice Prohibition Notice Prosecute

Criminal Liability – who gets charged? Health & safety offences can be committed by a company, its directors and managers personally Prosecution of individuals – consideration is given to the management chain and to fix criminal liability upon those who are in the position of authority and who have the power to decided corporate policy and strategy.

Criminal Liability – Statutory framework Health and Safety at Work Act 1974 S2 - Duty of every employer to ensure ,so far as is reasonably practicable, the health, safety and welfare at work of all his employees S3 – Duty of every employer to conduct undertaking to ensure, so far as is reasonably practicable that persons not in his employment are not exposed to risks to their health or safety (subcontractors/public)

Criminal liability – Statutory framework Health and Safety at Work Act 1974 S37 – Offences by bodies corporate Imposes personal liability where an offence by a company is committed with the consent and connivance of, or to have been attributable to neglect on the part of any director, manager, secretary or other similar officer he as well as the company shall be guilty of that offence

Criminal liability – Statutory framework Test for neglect – whether or not the Defendant ought to have been aware that a particular practice occurred – not whether or not he actually knew. Consent and connivance - imply both knowledge and a decision made on such knowledge – (turning a blind eye)

Criminal liability – Statutory framework Breach of specific Health & Safety Regulations; Management of Health and Safety at work Regulations 1999 Provision and Use of Work Equipment Regulations 1998 CDM Regulations 2007 Work at Height Regulations 2005

Sentencing Fines should reflect the gravity of the offence and the means of the Defendant In assessing the gravity of the breach consider how far short of the appropriate standard the Defendant fell

Sentencing Aggravating factors Safety compromised for profit Failure to respond to warnings Whether death or serious injury has occurred

Sentencing Mitigating factors Prompt admission of responsibility Co operation with enforcement authority Steps to remedy deficiencies No previous convictions

Sentencing Health and Safety (Offences) Act 2008 Fine – £20,000 for each offence in the Magistrates Court, unlimited fine in the Crown Court; Imprisonment Up to 12 months Magistrates Court Up to 2 years in Crown Court Investigation costs Director disqualification if convicted of an indictable offence in connection with the promotion, formation or management of a company (The Company Directors Disqualification Act 1986)

Corporate Manslaughter Pre 6 April 2008 Gross negligence manslaughter Difficult to successfully prosecute large companies – only 6 convictions between 1992 -2005 mainly of small owner managed companies. Conviction required ‘directing mind’ of organisation to be identified with requisite culpability (a senior individual who embodied the company in his actions) Herald of Free Enterprise in 1987 to rail disasters at Hatfield and Potters Bar failed to lead to successful convictions despite clear indications of safety management shortcomings

Corporate Manslaughter Corporate Manslaughter and Corporate Homicide Act 2007 Act - applies to Companies Trades Unions and employers associations if employer Public bodies – local authorities,NHS bodies LLP’s Partnership’s Government departments Police forces

Corporate Manslaughter The position of individuals Offence concerns corporate liability of organisations not individuals Prosecution is against the organisation itself not directors, senior managers or other individuals

Corporate Manslaughter New offence Does not impose any new duties – all existing duties under the civil law to ensure safe systems of work, safe plant and machinery, safe workplaces, and that processes for managing health & safety are adequate, remain unaltered Removes the obstacle of the ‘directing mind’ principle

Corporate Manslaughter Company guilty of corporate manslaughter if:- The way in which its activities are managed or organised Amounts to a gross breach of a relevant duty of care owed to deceased and Causes a person’s death; and (2) The way in which its activities are managed or organised by its senior management is a substantial element in the breach

Corporate Manslaughter Two stage approach 1) Must owe a duty of care to deceased As employer Occupier of premises Supplier of goods /services; carrying out of construction or maintenance; carrying out of any other activity on a commercial basis; use or keeping of plant / vehicles Breach of duty must be gross – conduct far below what can reasonably be expected of the organisation in the circumstances Jury must consider failure to comply with H&S legislation; seriousness of failure and risk of death that failure posed

Corporate Manslaughter 2) Senior managers A substantial part of the failure must have been at a senior level Senior level means the people who make significant decisions about the organisation Links into the importance the Act places upon a ‘safety culture’ within the organisation Act focuses on systems of work and away from individual fault

Corporate Manslaughter Sentencing Unlimited fine Publicity Order – organisation must publicise the fact of conviction Remedial Order – requiring organisation to address the cause of the fatal injury Prosecution costs

Civil liability Core duties Common law duty of care in negligence Statutory duties under Regulations Breach of which gives rise to a claim in damages.

Civil claims for damages Letter before action under the Personal Injury Protocol Matter referred to employers liability insurer Investigation into liability Settlement?

Civil claims for damages – Litigation Statements of Claim and Defence Disclosure Witness Statements Expert Evidence Trial Assessment of damages

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