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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 s3 HSWA on
31 January 2013
– Director charged with s37 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 s2
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."
RvP
• “…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 s37 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 s37 Prosecutions
•
Derek Hugh Barnes, sole director of Paddle Ltd, pled guilty to s37 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 s37 Prosecutions of Individuals
Examples of s37 offences re. failing to ensure safe working at
height practices:
•
Gary Peck fined £15,000 in 2011 for s37 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 s37
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 s37 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 22.5cm high.
AECT Limited
• Company pled guilty to breach of s2(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 s2(1) HSWA for failing to put
adequate safety measures in place to prevent the
incident
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