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

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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

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

11. 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

12. 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)

13. 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

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

15. 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.

16. 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)

17. 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

18. 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)

19. 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

20. 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

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

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

23. 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)

24. Corporate Manslaughter
Pre 6 April 2008
Gross negligence manslaughter
Difficult to successfully prosecute large companies – only 6 convictions between 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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.

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

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

35. Denison Till solicitors
A leading Yorkshire-based law firm, with UK and international clients
Eight specialist departments comprising: corporate and commercial, commercial property, employment, dispute resolution, construction, ecclesiastical, family and wills & trusts
Accredited by Law Society, Investors in People and legal directories Legal 500 and Chambers & Partners
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