IOSH Midlands South Branch Legal Update 30 September

IOSH Midlands South Branch Legal Update 30 September 2015 Andrew Litchfield – Wragge Lawrence Graham & Co LLP

Legal Update Topics § Sentencing for environmental, health and safety, corporate manslaughter and food safety and hygiene offences § CDM Update § Self-employment and health and safety § Questions

Sentencing for environmental and health and safety offences Environmental Offences Definitive Guideline - 1 July 2014 Health and safety offences, corporate manslaughter and food safety and hygiene offences - published 1 November 2015

Sentencing for health and safety offences Scope - Sections 2 and 3 HSWA 1974 - Regulations passed under HSWA 1974 - Corporates and individuals - Section 7 HSWA 1974 - Section 37 HSWA 1974

Sentencing for health and safety offences What does the sentence achieve? - punishment of offenders - deterrence of offenders - reform and rehabilitation of offenders - protection of the public - reparation to victims - How? - Culpability of offender - Harm caused or foreseeably caused - Section 142 Criminal Justice Act 2003 Section 143 CJA 2003 Fines? - Offender’s financial circumstances - Fine must reflect severity of offence - Section 164 CJA 2003

Sentencing for heath and safety offences- Guidelines Step 1 - Determining the offence category. - Culpability - Very high - - deliberate breach or flagrant disregard High - failure to follow industry standards - Ignoring concerns raised by employees - Failure to respond to prior incidents - Breaches exist for a long time - Medium - Low - Significant efforts made to reach standard - No prior event or warning - Failings were minor and not systemic

Sentencing for health and safety offences-Guidelines Step 1 - Determining the offence category. - Harm - Initial harm category severity of harm - A – death, serious physical injury - B – long term disability - C – lesser injuries likelihood of harm - high, medium, remote - Were significant numbers exposed? - Was the offence a significant cause of actual harm?

Sentencing for health and safety offences- Guidelines Step 2 – Starting point and category range. - See table - Comprehensive financial information - Linked organisations - Aggravating features v Mitigating features

Sentencing for health and safety offences-Guidelines Step 3 - Is a fine based on turnover proportionate? “The fine must be sufficiently substantial to have a real economic impact which will bring home to management and shareholders the need to comply with heath and safety legislation” Step 4 - Other factors - Public or charitable bodies

Sentencing for health and safety offences-Guidelines Step 5 - Step 6 - Reduction for guilty pleas Step 7 - Remedial Orders - Forfeiture - Compensation Step 8 - Discount sentence for assisting the prosecutor Totality principle Step 9 - Reasons

Sentencing for environmental and health and safety offences R v Thames Water Utilities Ltd – 30. 06. 2015 - Very large commercial organisations - Message to directors and shareholders x 4 “This may well result in a fine equal to a substantial percentage, up to 100% of the company’s pre-tax profit for the year in question… even if this results in fines in excess of £ 100 million. ”

Construction (Design and Management) Regulations 2015 In force from 6 April 2015 Transitional period expires on 5 October 2015 Apply to all construction projects Very wide ranging

CDM 2015 Key dutyholders Clients – anyone for whom a project is carried out - Duties - Make suitable arrangements for managing a project - Make sure - other dutyholders are appointed and carry out duties - sufficient time and resources are allocated - relevant information is prepared and provided - welfare facilities

CDM 2015 Key dutyholders Principal designers – when more than one contractor - Duties - plan, manage, monitor and co-ordinate health and safety in pre-construction phase - identify, eliminate or control foreseeable risks - ensure designers carry out their duties - prepare and provide relevant information to others especially Principal Contractor - prepare, review, update and revise health and safety file.

CDM 2015 Key dutyholders Principal Contractors – when more than one contractor - Duties - plan, manage, monitor and co-ordinate health and safety in construction phase - liaise with client and Principal Designer - prepare construction phase plan - organise co-operation between contractors - ensure site inductions carried out - prevent unauthorised access - workers consulted - welfare facilities

CDM 2015 Key elements to securing health and safety - Apply “general principles of prevention” - avoid risks where possible - evaluate risks which cannot be avoided - proportionate measures to control those risks - Appoint the right people at the right time - Make sure everyone has information, instruction, training and supervision - Dutyholders co-operate, communicate and co-ordinate - Consult and engage

CDM 2015 Key changes - The explicit “competence” requirement - - - “skills, knowledge, training and experience” Notification requirement - more than 30 working days and more than 20 workers working simultaneously on the project or - exceed 500 person days CDM Co-ordinator Principal Designer

The Health and Safety at Work Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015 “It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby, are not thereby exposed to risks to their health and safety” (See 3(2)) This section applies to - any work which is an agricultural activity - any work with asbestos - any work on a construction site - any activity involving gas - anything to do with genetically modified organisms - the operation of a railway - an undertaking which may pose a risk to the health and safety of another person

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