Health & Safety LawEmployers duties and liabilities

Jonathan Cripwell, Partner

Overview

• 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 2008Gross 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:-

(1) The way in which its activities are managed or organised

a) Amounts to a gross breach of a relevant duty of care owed to deceased and

b) 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 approach1) Must owe a duty of care to deceaseda) As employerb) Occupier of premisesc) 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

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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