Heed the danger signs of tougher work safety laws

06/12/2009

By Doug Skilton, Associate in Dispute Resolution. Featured in Kent on Sunday.

Recent figures released by the HSE suggest that Medway, Swale and Dover are amongst the most dangerous places to work in the South East. Although the figures show that across the South East as a whole major injuries to employees are down 3% on last year's figures, this is still somewhat below the national average reduction of 9%. 

However, variations in regional injury rates occur largely as a result of the spread of different industries and occupations across the country. The HSE's figures show that the majority of work related fatalities and serious injuries arise from construction and agriculture. The extractive and utility supply industries, together with transport, storage and communications also have higher than average accident rates.  In this context, it is not surprising to see that these regions (and the South East generally) have fared worse than other regions not as dependant on these industries. 

The average fine following a conviction for health and safety offences is now around £13,000 per offence. Although this is slightly lower than the 2006 and 2007 average, this downward trend looks set to be reversed following the introduction of the Health and Safety (Offences) Act 2008 ("the Act") which came into force on 16 January 2009, and new sentencing guidelines for corporate manslaughter and workplace fatalities. 

The effect of the Act is to increase fines that can be imposed by Magistrates for more minor health and safety offences from £5,000 to £20,000. For more serious offences resulting in a fatality, the new sentencing guidelines say that the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more. The guidelines suggest that for corporate manslaughter, the starting point will usually be £500,000 and may run on to millions of pounds.   

It is also worth noting that the Act makes imprisonment a sentencing option for most health and safety offences. This means that directors, managers and employees found guilty of breaching health and safety legislation could face imprisonment.

With the risk of ever increasing fines and now the imprisonment of individuals a sentencing option for most health and safety offences, it is vital for directors and managers to think about what practical steps they can take to protect themselves and their businesses. 

A good starting point would be to review your health and safety policy to ensure it is up to date. You should also consider reviewing workplace practices and procedures to make sure they comply with health and safety legislation. 

Risk assessments are crucial to accident prevention - they inform what reasonably practical steps an employer must take in order to discharge its health and safety duties. Risk assessments need to be simple and practical because there is little point in having a perfect risk assessment on paper which is not implemented in practice. Line managers on the ground should be responsible for preparing risk assessments because they will have a better idea of what is involved in undertaking the relevant tasks. In turn they should consult employees, and the risk assessments should be revised and updated periodically in the light of issues they raise.  

The health and safety arrangements of contractors and key partners should be assessed. Businesses have a duty to ensure that members of the public and the employees of contractors are not put at risk. The duty extends not just to the way in which a business conducts its own activities, but also to the arrangements it makes with contractors as to how they will carry out their work. It is rarely good enough to simply rely on an independent contractor to undertake their work safely without making enquiries for yourself. 

Check the extent of your insurance cover - legal costs in defending HSE prosecutions can be substantial. For policy reasons an organisation cannot insure against a fine imposed under health and safety legislation. Some insurers do provide cover for the prosecution costs a defendant will be ordered to pay in the event of a conviction or guilty plea. Will senior managers and directors be covered by the company policy in the event they are personally prosecuted?  

Another recommendation would be to consider obtaining legal advice on your internal incident/accident investigation procedures. Is your incident investigation report in a format which allows you to legally withhold it from being disclosed to prosecutors? This could be vital if the report highlights particular shortcomings which resulted in an accident. 

Finally, businesses should think very carefully about whether to attend any interview under caution to which they may be invited by prosecutors. Advice should be sought on whether or not it is in your best interests to attend, and on how you proceed if you do attend or if you do not. 

Please refer to your usual contact at Thomson Snell & Passmore for further information. Alternatively, please email Douglas Skilton or call him on 01892 701352.