London Health & Safety Group

Legal Update 2019

Kizzy Augustin, Russell Cooke LLP

8 April 2019

Agenda

Brexit and H&S – who cares?

Where are we with the 2016 Sentencing Guidelines?

3 years on……sector focused prosecutions

Other changes in H&S for 2019?

Food allergens – info for food safety businesses

Mental Health & Wellbeing – should physical and

mental health be treated the same?

H&S and Social Media?

RIDDOR Changes

Brexit and H&S?

Brex-hausted much?

Summary of current status – DEAL or NO-DEAL?

HSE’s position:

Obligations and duties to protect the health and

safety of people will not change

Minor amends made to regulations to remove EU

references – legal requirements stay the same

Approach to regulation is to preserve UK’s high

standards in H&S / protect people & environment

Legislation that may be affected……

Regulation of chemicals (in the event of ‘no deal’):

Biocides, CLP, PIC, PPP, REACH

Explosives

Equipment and machinery

Generally UK will establish a stand alone chemicals/ explosives regime.

The role of standards in the regulatory framework for manufactured goods will not change when we leave the EU.

The current EU ‘harmonised standards’ will be carried across as UK ‘designated standards’ to maintain a single standards model between the UK and the EU.

Corporate H&S Duties

Duty to “ensure” the health

safety and welfare of

employees

Duty to “ensure” the health

and safety of non-employees

Duty of person who has, to any

extent, control of premises to

ensure premises, access and

egress from premises and any

plant or substance is safe and

without risks to health

“So far as is reasonably

practicable”

Section 2

Duty to

employees

Duty to

non-

employees

Section 3

Section 4

Duty of

controller of

premises

Individual H&S Duties Duty to take reasonable care

of self and others affected

by work (s.7)

Where an offence… has been

committed with the consent,

connivance, or…attributable to

any neglect on the part of any director,

manager… or a person who purports to

act in that capacity, he/she as well as the

company shall be guilty of that offence (s.37)

Duty of

employees

Section 7

Section 37

Liability of

directors and

senior managers

Where are we with the Sentencing Guidelines

2016?

Definitive guidelines

implemented since 1 Feb

2016

Impact of the guidelines over

the last 3 years?

Proposed changes

Impact Assessment of the Guidelines

Fines increased for large (anticipated) and small (not

anticipated) organisations

HSE Impact Assessment cont…

• Individuals – unanticipated increase in higher fines and short term change of use in some disposal types

• What about food safety and corporate manslaughter? • Food Safety & Hygiene offences: less pronounced increase in fines • CM offences – increase in fines, but low volume of prosecutions…..

Culpability

Level of culpability extremely important

Categories of harm

Establish Harm category from Matrix

Starting Point / Range of Fines

Large Organisations

Range of Fines cont…..

Medium Organisations

Corporate Manslaughter

Top 5 Fines – so far!! Company Fine Fatal/Non- fatal

Merlin Attractions £5million Non-fatal but significant injuries

Tesco Stores Ltd £5million Non-fatal and no injuries

Network Rail £4million Fatal

ConocoPhillips £3 million Non- fatal – no injuries

Cristal Pigment UK Limited £3 million Fatal

(*Pre Guidelines) Network Rail, Hatfield and Ladbroke Grove disasters

All c. £3 million Multiple fatalities, “very high culpability”

Capstone Building Limited (March 2019)

Building firm fined after death of employee following

wall collapse

Bricklayer employed by Capstone working on

construction site – struck by falling masonry after a

retaining wall failed while being back filled with concrete

Failure to appropriately manage work on site / failure to

ensure health and safety of employees and non-

employees

Breach of sections 2 and 3 HSWA – NG plea

Found G after a trial - £900,000 fine and £60k costs

Karro Foods Limited (March 2019)

Two workers from food manufacturing company

suffered injuries after falling 4m through rooflight

13 April 2016: workers investigating a roof leak - both

stood on the same rooflight and fell through

Injuries – one suffered fractured ribs, punctured lung

and contusions to right thigh; other suffered fractured

skull and injuries to right leg and ear (balance issues)

HSE concluded rooflights not visible because of dirt and

moss build-up / employees not informed about location

G plea to section 2 HSWA breach – fined £1.8m and

£8k costs

M&D’s Theme Park (March 2019)

June 2016 - Motherwell theme park ride derailed at 40mph, injuring 9 people (including 7 children)

5 gondolas plunged 30ft to the ground

Breaches of HSWA – failed to ensure rollercoaster was maintained, in efficient working order and good repair

Business owned by 2 brothers for over 50 years

G plea – owner mentioned co-operation with authorities, daily safety checks and annual independent inspections (safety inspector had passed the ride as ‘safe’ 16 days before)

Fined £65k (credit for G plea)

Scots vs English courts/compare to Merlin Entertainments

Oxleas NHS Foundation Trust (Dec 2018)

Patient of secure forensic unit gained access to kitchen

and stabbed 2 healthcare workers / obtained lighter and

started a fire

HSE found that the Trust had failed to assess the risks /

failed to take straightforward preventative steps:

No specific risk assessments (high risk patients)

No proper training in search techniques

Previous incidents / patient’s own history

G plea to 2 breaches of HSWA – fined £300k and £28k

costs

Harvey’s Chicken & Pizza (April 2018)

Owner / Manager of takeaway alleged to have

committed 12 food hygiene offences, including:

Poor cleanliness

Poor maintenance of premises

Sale of unfit and rotten food (meat and poultry)

EHO’s from Fylde Council worked with Mr Ahmed to

improve conditions, but had to issue Hygiene

Emergency Prohibition Notice to protect public health

G plea – given 6 month custodial sentence

NPS London Limited (Feb 2019)

Clarity on sentencing linked organisation in H&S case:

NPS London – “small organisation”, but is a JV company partly owned by NPS parent co (“large organisation”)

July 2017: fined £370k for breach of section 3 HSWA

C of A – should be classed as ‘small’ – relevant turnover is that of offending organisation

But…perfectly proper to have regard to wider finances of a linked organisation. Low profitability of NPS London not of itself a reason to reduce fine

Full credit for G plea – fine reduced to £50k

Squibb Group Limited (Feb 2019)

Tried to overturn conviction – failed, but succeeded in reducing ‘manifestly excessive’ fine

Originally found G of section 2 but not section 3 breach

Squibb suggested both employees and non employees should be treated the same

C of A – could conclude risk of harm is greater for employees, but sentence should be reduced:

High culpability but likelihood of harm should accord with assessment of expert (low likelihood)

Fine reduced from £400k to £190k

Importance of proper assessment of likelihood of harm in relation to risk / expert evidence can be helpful

Proposed changes – enhanced explanations

Proposal for judges and magistrates to consider additional

contextual information when weighing up aggravating and

mitigating factors

Reflect current best practice

Most significant for aggravating factors – cost cutting at the

expense of safety (increase seriousness, indicate higher level of

culpability)

E.g. failing to disclose matters to an authority, failure to obtain

relevant licence or permission

Most significant for mitigating factors – high level of cooperation

with investigation beyond the expected

E.g. self-reporting

Consultation closes on 23 May 2019

What does it all mean?

Significant increase in fines for large and small organisations / ‘focus on ‘sector’ or ‘industry’

More individuals are likely to receive custodial sentences

Likely that ‘offending organisation’s’ turnover will be taken into account

What’s important?

Culture, Leadership from the top - Board level briefings & training

Incident Response Protocol – RIDDOR, Internal Investigation, response to FFI, response to section 20 interviews, interviews under caution, Enforcement Notices – post incident “legal” protective measures

The extent to which failures were systemic v. isolated

Safety management systems in place, robust and properly invested in

Role played by senior management and directors (pre and post-incident)

Other changes in H&S for

2019?

Food allergens – Pret a Manger

Pret a Manger – 15 year old went into cardiac arrest on a flight after buying sandwich at Heathrow Airport in 2016

Contained sesame – one of 14 allergens that consumers must be informed about as an ingredient

Current requirements: Food Regulations 2014 – allows freshly handmade, non pre-packaged food not to be individually labelled

At the time of incident, Pret had signs in fridge / at tills telling consumers with allergies to speak to manager

Will now list all ingredients (including allergens) on freshly made products and pre-packaged products

Mental Wellbeing: Physical vs Mental

Focus on physical health / physical injury – what about

occupational health / risk?

Karl Simons (Thames Water): “we all have mental

health…the same way we all have physical health”

HSE’s updated first aid guidance – companies to

consider ways to manage mental ill health

MHFA called for changes to H&S legislation to put

mental and physical first aid on equal footing

H&S Sentencing Guidelines – all about ‘risk’

H&S and Social Media – duty of care?

Molly Russell – death of 14 year old, whose father is

convinced she was driven to suicide in Nov 2017 by

material on Pinterest and Instagram

Papyrus (charity working to prevent suicide) – talking

to families who believe social media has part to play

Self regulation: most tech firms will deny harmful

content – if proved, they promise to remove it as a

platform for the content, not publisher.

Proposal to consider imposing a legally enforceable

duty of care on internet ‘giants’ – distressing material to

be reported to independent regulator.

RIDDOR 2013 review

HSE carried out post implementation review of RIDDOR

Emphasis on work related health as well as safety – list of reportable occupational diseases to be expanded

RIDDOR 2013 requires employers and others in control of work premises to report and keep records in respect of certain work related accidents:

2013 modifications made list of reportable incidents simpler and shorter

Review: some occupational diseases no longer needed to be reported – recommendation to expand list for occupational incidents / narrow list for non-workers

Questions?

Contact details

Kizzy Augustin, Partner

T: +44 (0) 20 3826 7302

kizzy.augustin@russell-cooke.co.uk