Health and Safety Update Presented by Laura Cameron

Health and Safety Update Presented by Laura Cameron

Introduction • Fee for intervention • Corporate Manslaughter Update • Prosecution of Individuals

Key Components of FFI • Commenced 1 October 2012 • It applies where, in the inspector's opinion, there is a material breach of law requiring a formal regulatory intervention through a letter, email, instant visit report, notice or prosecution (up to the point that court proceedings start). • Cost recovery begins at the first visit that identifies it, through to the point that the breach has been rectified, and includes all the time that an inspector spends on the case. • HSE time to be charged at £ 124 per hour. • There is a disputes process with two stages, both undertaken by HSE staff.

FFI – How is it Working in Practice? • FFI invoices sent out every 2 months - a company could get a number of invoices during the course of an HSE investigation • Statistics re first 6 months: – approx. £ 2. 7 million invoiced to duty holders – 5766 invoices raised – Construction sector accounted for 27% of all FFI receipts, manufacturing accounted for 42% – Average invoice was £ 464 • To 10 June 2013, 145 queries raised: 2 level-1 disputes, 0 level-2 disputes • No targets for inspectors – but likely that Inspectors will be issuing more notifications • Payment of an invoice could be used in criminal prosecution as evidence of an admission there was a material breach • Appeal process - need to decide whether to pay the invoice. HSE can enforce payment through a civil action. HSE could do that before the appeal is determined - decided on a case by case basis.

Corporate Manslaughter and Corporate Homicide Act 2007 An Organisation…. is guilty …. • … if the way in which its activities are managed or organised … • … causes a person’s death … • … and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased … • only if the way its activities are managed by senior management is a substantial element of the breach of the duty of care….

Corporate Manslaughter and Corporate Homicide Act 2007: Penalties • Unlimited fine • Sentencing Guidelines • Publicity Orders • Remedial Orders

Prosecutions under the 2007 Act • Cotswold Geotechnical (Holdings) Ltd – Guilty Verdict – Fined £ 385, 000 payable over 10 years – Publicity • Lion Steel Ltd – Employee fell through fragile roof panel – Fine of £ 480, 000 payable by instalments between September 2012 and September 2015 – Company with over 100 employees

Prosecutions in Northern Ireland • JMW Farms Ltd – Metal bin falling on employee – Fine of £ 187, 000 and costs of £ 13, 000 – Comments by Judge • J Murray & Son Ltd – – Employee became entangled in animal feed blending machine Fine £ 100, 000 (payable over 5 years) Prosecution costs £ 10, 450 Charge of gross negligence manslaughter against company director dropped in return for guilty plea

Upcoming Prosecutions • PS & JE Ward Limited – Hydraulic-lift trailer came into contact with overhead power line resulting in fatality – Company charged with corporate manslaughter and section 2(1) HSWA – Provisional listing for trial on 31 March 2014 • MNS Mining Limited – 4 miners died when the Gleison colliery in Wales flooded in Sep 2011 – Owner of colliery in Wales charged with corporate manslaughter on 18 January 2013 – Senior manager in charge of mine charged with gross negligence manslaughter – Plea and case management hearing - 16 December 2013 – Provisional trial date – 24 March 2014

Upcoming Prosecutions (continued) • Prince's Sporting Club – Death of an 11 year old girl who fell from a banana boat during a birthday celebration in September 2010 – The club was charged with corporate manslaughter and s 3 HSWA on 31 January 2013 – Director charged with s 37 HSWA – Provisional date set for trial - 14 January 2014 • Mobile Sweepers (Reading) Limited – Fatal crush injuries sustained when vehicle fell onto repair man – Company charged with corporate manslaughter, s. 2 HSWA and Reg 5(1) Provision & Use of Work Equipment Regs – Sole Director charged with gross negligence manslaughter and s 2 HSWA – Provisional date for trial – 6 January 2014

Upcoming Prosecutions (continued) • Sterecycle (Rotherham) Limited – An employee of Sterecycle was working on an autoclave, a device used to process household waste into material for recycling by subjecting them to high pressure, when the door blew out under pressure causing an explosion. – Another operator was seriously injured in the incident. List of Charges: 1 x Corporate Manslaughter; 1 x charge against the Operations Director under Section 7 of the HSWA (breach of the general duties of employees at work); 1 x against the Operations Manager under Section 7 of the HSWA; 1 x against the Maintenance Manager under Section 7 of the HSWA; and 1 x of perverting the course of justice against the Maintenance Manager.

Corporate Manslaughter Statistics • CPS corporate manslaughter statistics for Eng & Wales: – – 40% rise in new corporate manslaughter cases opened by CPS 45 in 2011, 63 in 2012 Currently 56 cases being investigated for prosecution 141 corporate manslaughter cases opened since records began in 2009 (Figures as at March 2013) • As yet no prosecutions in Scotland

HSWA - Duties on Individuals • s. 7 offence – applies to any individual “It is the duty of every employee to take reasonable care for the health and safety of themselves and/or other persons who may be affected by his acts or omissions at work. The employee must also co-operate with his employer to enable the employer to comply with their statutory duties. "

HSWA – Duties on Directors and Senior Management • s. 37 offence – directors and senior managers “Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of any director, manager, secretary or other similar officer…he as well as the body corporate shall be guilty of that offence and should be liable to be proceeded against and punished accordingly. "

Rv. P • “…committed with the consent or connivance of…” • R v P - what did the director know and what should he have known?

Prosecution of Individuals on the Increase • The enforcement policy of the HSE may be placing greater emphasis on the prosecution of individuals: “Subject to the above, enforcing authorities should identify and prosecute or recommend prosecution of individuals if they consider that a prosecution is warranted. In particular, they should consider the management chain and the role played by individual directors and managers, and should take action against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so in accordance with this policy. Where appropriate, enforcing authorities should seek disqualification of directors under the Company Directors Disqualification Act 1986. ” (HSE Enforcement Policy, para 43)

Prosecution of Individuals (continued) • HSE must be satisfied that the evidence provides a realistic prospect of conviction • Prosecution must be in the public interest • Prosecutions under s 37 HSWA increased by 400% in the past 5 years • = Approx 30 -40 directors and managers prosecuted in the UK each year

Individual Responsibility: Penalties • Health and Safety (Offences) Act 2008 • Sentencing Guidelines • Director Disqualification

IOD and HSC Publication: 29 October 2007 • Leading Health and Safety at Work • Appointment of a named Director would be “useful” • Clarity and Visibility

Recent Cases

Recent s 37 Prosecutions • Derek Hugh Barnes, sole director of Paddle Ltd, pled guilty to s 37 offence re. 2 working at height related incidents. – In July 2013 he was sentenced to eight months imprisonment, suspended for two years, and disqualified from acting as a company director for three years. – In addition, he was fined £ 32, 000 plus £ 11, 000 in costs. • Przemyslaw Zalecki, director of Granite Express Ltd, was fined £ 2000 (+ £ 5000 costs) in February 2013. – worker narrowly escaped being crushed by a collapsing load of stone slabs during unloading. – HSE had previously served a prohibition notice halting further use of the lifting arm as it was not fit for purpose – Mr Zalecki was given specific advice to carry out proper risk assessments and devise a safe system of work for unloading stone slabs from vehicles which he failed to do.

More s 37 Prosecutions of Individuals Examples of s 37 offences re. failing to ensure safe working at height practices: • Gary Peck fined £ 15, 000 in 2011 for s 37 breach as Director of London & South Scaffolding Ltd for failing to ensure work at height was properly planned, supervised and carried out safely when working on a fragile roof. • Alfred Wood fined £ 13, 000 and Christopher Wood fined £ 2000 for s 37 breach as Directors of Scotts of Whittington as a result of a fatal accident arising from work to repair a fragile roof, with inadequate precautions against falls. • Mr Amjad Mahmood was fined £ 300 in 2009 for lack of safe system for work at heights. • In 2008 Steven Moore was fined £ 30, 000 for s 37 breach when a member of the public was found dead having fallen from garden level to basement courtyard at a site where there was no edge protection other than a section of wall 22. 5 cm high.

AECT Limited • Company pled guilty to breach of s 2(1) HSWA and fined £ 300, 000 (+£ 77, 500 costs) in July 2013 • Worker died from fatal head injuries while carrying out maintenance in vacuum casting furnace – the main isolation valve closed suddenly, trapping his head. • HSE uncovered repeated failing by AECT Limited, including: – No effective isolation procedure for maintenance work on the furnace – failure to act for several years on repeated recommendations from their own Corporate Health and Safety Manager – failure to adequately train and supervise maintenance staff – furnace control systems, intended to protect operators when carrying out routine cleaning within the furnace chambers, were inadequate and exposed them to unnecessary risk

Quickmach Engineering Pressings Ltd • Company fined £ 5000 (+£ 1, 121 costs) in August 2013 • Employee injured hand on machine where safety lock had been deliberately disabled • HSE revisited site after incident and found machine being used in same way • Company pled guilty to breach of Section 1(1) of the Provision and Use of Work Equipment Regulations 1998 • HSE said that regular checks of equipment would have immediately shown locks had been disabled and could have prevented the incident

John O'Flynn Developments Limited • Fined £ 10, 000 (+ £ 3, 892 in costs) in September 2013 • Worker seriously injured by reversing tipper truck • HSE investigation found that not enough was done to segregate workers on the ground from moving vehicles • Company pled guilty to s 2(1) HSWA for failing to put adequate safety measures in place to prevent the incident

Questions

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