Health and Safety Legal Update IOSH Chiltern Branch

Health and Safety Legal Update IOSH Chiltern Branch 16 November 2017 Alison Newstead Shook, Hardy & Bacon International LLP 19 th Floor, Tower 42 25 Old Broad Street London EC 2 N 1 HQ anewstead@shb. com

What has been happening? Incidents Government reviews Legislation Campaigns HSE activity Consultations Implementing Sentencing Guidelines Case law 2

Consultations 3

Gross Negligence Manslaughter Control of Asbestos Ionising radiation Fee For Intervention 4

Consultation – Gross Negligence Manslaughter Why is this important to you? Sentences for individual gross negligence manslaughter set to increase substantially. Offence: Offender in breach of a duty of care towards the victim Breach caused death of the victim Offender’s conduct was so bad as to amount to a criminal act 5

The context 9 work related gross negligence manslaughter convictions in last 16 months All resulted in custodial sentences (4 suspended) Longest term 7 years 6 months; shortest term 1 year suspended Likelihood that these offences would resulted in longer sentences under the new proposals 6

The context (cont’d) Sit up and take note now! Retrospective – will apply to offences committed now but which do not come up for sentencing until December 2018 7

Need for Guidelines No existing guidelines for manslaughter (except for provocation) 4 draft guidelines Unlawful act manslaughter. Gross negligence manslaughter Manslaughter by reason of loss of control Manslaughter by reason of diminished responsibility 8

Guidelines - Structure Set out in similar way to H&S sentencing guidelines Focus on culpability and harm Culpability: Very High, Medium, Low Harm: For all cases - harm is of utmost seriousness Courts will use a “starting point” and “category range” once category of culpability/harm determined 9

Guidelines - Aim Starting points and ranges said to be “broadly based on current sentencing practices” Need for consistency Recognized that sentencing levels may increase Majority of offences would fall into category “C” (starting point 4 years in custody) 10

Culpability Levels 11

Culpability (cont’d) 12

Sentence: Starting Point and Ranges - Very High - Medium - Low Source: https: //www. sentencingcouncil. org. uk/wpcontent/uploads/Manslaughter_consultation_paper_Final-Web. pdf 13

Apply Aggravating/mitigating factors Make a reduction for any early guilty plea 14

Consultations - Asbestos CD 285 Consultation on Proposal to amend Control of Asbestos Regulations. Period 2 October 2017 – 30 October 2017 Proposals / Outcome Regulation 22 CAR 2012. Extend interval by 1 year in which asbestos workers required to attend medical examinations, i. e. , examination by HSE doctor every 3 years instead of 2. Key recommendation of Government Report of post implementation review of CAR 2012. 15

Consultations – Ionising Radiation CD 282 Consultation on implementation of Directive 2013/59/EURATOM – laying down basic safety standards for protection against the dangers arising from exposure arising from ionising radiation. (Changes to Ionising Radiation Regulations 1999). Period 7 February 2017 – 2 April 2017 Proposals / Outcome EU Basic Safety Standards Directive (BSSD) must be transposed in all Member States by Feb 2018. Consolidates/updates existing Euratom provisions for protection against harmful effects of ionising radiation. Covers occupational, medical and public exposure. HSE transposing those that relate to occupational exposure. Aco. P to be revised. 16

Consultations CD 284 Consultation on revised process for considering disputes under Fee For Intervention (FFI). Period 21 April 2017 – 2 June 2017 Proposals / Outcome HSE launched revised process for considering disputes for invoices issued under FFI scheme. All disputes to be considered by panel independent of HSE (1 lawyer + 2 H&S professionals). Clarity as to information given by HSE to allow appropriate representations to panel. Revised guidance available. 17

R (OCS Group UK Limited) v. HSE Judicial review of FFI scheme No independent and objective appeal process Proceedings settled in February 2017 HSE agreed to review the scheme/pay costs of OCS 18

Case Law 19

Case Law Essar Oil UK Ltd – Risk of harm important Fine 1. 65 m Explosion at Ellesmere Port No injuries – damage cost £ 20 m 20

Case Law DFS Trading Limited – Lower Courts imposing higher fines Magistrates Court Imposed £ 1 m fine on retailer 21

Case Law (cont’d) D Geddes (Contractors) Limited – Recovery of Criminal fine from H&S Consultant Individual killed by tipper lorry at quarry Bund (stop block) did not stop lorry reversing over edge Fine of £ 200, 000 Action to recover fine against Johnston Health & Safety Services Ltd Consultant carried out regular inspections and reported to Geddes – Had they been advised they would have rectified Johnson – Geddes negligent in sand build up Person cannot profit from own illegal act 22

Case Law (cont’d) Warburtons Ltd – Training of agency staff Worker had arm trapped in conveyer belt Highlights training of agency staff sometimes falls between the cracks 23

Case Law (cont’d) Tata Steel – Successful challenge of fine of £ 1. 8 m Challenging application of sentencing guidelines Court re-examined application of guidelines Incorrect characterisation of likelihood of harm Judge entitled to take into account resources of parent company Remember – fine can go up as well as down! 24

Case Law (cont’d) Rv London Borough of Havering – Sentencing of Public Sector Organisations How do sentencing guidelines apply to public sector organisations? Fine linked to organisations revenue budget – therefore “large” organisations Reduction if significant impact on services Fined £ 500, 000 (after ⅓ discount) Argued discount for public sector bodies should be at least 50%: No authority Nothing in guidelines to support this contention 25

Case Law (cont’d) South West Water – Using technology to ensure safety of lone workers Drowning incident – lone worker £ 1. 8 m fine Effective Management of lone workers 26

Case Law (cont’d) SR & JR Brown Limited – Courts considering responsibility in supply chain 3 Gross negligence manslaughter convictions 2 Directors of roofing business and Director of business that contracted work Ensuring contractor competent and adequately resourced Shocking behaviour by sub-contractor 27

Westgreen Construction Limited/IS Europe Limited – No-one acted on obvious risk Woman crushed by falling windows Windows unprotected and unrestrained Clear and serious risk to death 28

Sentencing Early Guilty Pleas 29

Reduction in sentence for Early Guilty Plea Previous Position Current Position “Indicated at first stage of proceedings” normally first hearing at which indication of plea is sought “First reasonable opportunity” may be first time defendant appears before the Court After first stage of proceedings When trial date has been set (maximum) At “door of Court” or after trial has begun First day of trial Reduced to 0 during course of trial (maximum) 30

Forcing your hand at an early stage? H&S sentencing guidelines and increased sentences = more likelihood of early guilty plea Important exceptions: Circumstances significantly affected Defendant’s ability to understand what was alleged or made it unreasonable to expect Defendant to enter a guilty plea sooner than was done Defendant pleads guilty, but disputes facts of case (“Newton Hearings”) 31

Mental Health at Work 32

“many employers are already creating healthy, inclusive workplaces, but more needs to be done so that employers provide the support needed for employees with mental health conditions” Theresa May – January 2017 33

Independent review Support to employees – to remain in and thrive through work UK significant mental health challenge at work Be more aware of own and others’ mental health Employers can make greatest impact 34

The Figures 300, 000 people with long term mental health problems lose their jobs every year 15% of people at work have symptoms of an existing mental health condition Annual cost to employers - £ 33 billion to £ 42 billion Annual cost to government - £ 24 billion - £ 27 billion Annual cost to economy - £ 74 billion - £ 99 billion 35

Recommendations to Employers Produce, implement and communicate a mental health at work plan Develop mental health awareness among employees Encourage open conversations about mental health and the support available when employees are struggling Provide effective people management Routinely monitor employee mental health and well being 36

LEGISLATION 37

General Data Protection Regulations (“GDPR”) Foundations in 20 year old Data Protection Act Compliance important – fines > £ 20 m or 4% annual turnover (whichever higher) Applicable from May 2018 Raft of changes: • increase in territorial scope of EU data protection law • new and extended data subject rights • enhanced right to compensation • additional obligations/liabilities for data controllers/data processors • transformation of regulatory regime – extended powers and higher fines 38

Obligations of Businesses Lawfulness of processing • Reliance of legitimate interests as legal basis for processing personal data – need to balance interests of consumer and data subject • New standard of consent “any freely given, specific; informed and unambiguous indication of the data subject’s wishes” A Data Protection Officer must be appointed by a business which fall in certain categories e. g. public body, business whose core activity is data processing Breach notification obligations • Duty to notify authority of “personal data breach without undue delay… “ where feasible not more than 72 hours after having become aware 39

Data protection impact assessments • Processing using new technology and likely to result in high risks to rights and freedom of data subjects will be subject to Data Protection Impact Assessment. Accountability • • Woven through GDPR Number of references to “ensuring compliance” and “demonstrating compliance” Data Protection by Design and by Default • Controller needs to consider “the state of the art, the cost of implementation and the nature, scope, context and purpose of processing, as well as the risks” 40

Data Transfers outside the EU • Data transfers to a “third country or an international group” may occur where: o Commission has provided an adequacy decision o Appropriate safeguards are in place o Certain derogations apply 41