Health and Safety –
what has been
happening in the last 12
years and what's on the
horizon?
Presentation to IOSH
Jon Cooper
15 April 2015
Introduction
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CDM Regulations 2015
Corporate Manslaughter update
Improvement/Prohibition Notices
Sentencing Council consultation
Construction (Design and Management)
Regulations 2015
• Came into force on 6 April 2015
• Replaced the 2007 Regulations and are designed to be
clearer and easier to understand
• Key provisions
• Regulations apply to all projects including domestic client
work (Regulation 7)
• All projects must have a written construction phase plan
(Regulation 4)
• The role of CDM co-ordinator has been removed and been
replaced with the new role of principal designer
(Regulation 5)
• Duty to ensure that persons involved have the right skills,
knowledge, training and experience (Regulation 8)
CDM Regulations 2015 – transitional provisions
• CDM co-ordinators already appointed on projects which span
6 April 2015 can remain in post for six months or to the end
of the project, whichever is the earlier
• Pre-construction information, construction phase plans or
health and safety files provided under CDM 2007 are
recognised as meeting the equivalent requirements in CDM
2015
• Any project notified under CDM 2007 is recognised as a
notification under CDM 2015
• A Principal Contractor appointed under CDM 2007 will be
considered to be a principal contractor under CDM 2015
In all other circumstances, the requirements of CDM 2015
apply in full from 6 April 2015
ACOP not yet available
Improvement and Prohibition Notices
• Remember – Notices are enforcement action!
• Consequences – fee for intervention, reputational damage
and commercial impact
• Notices served are recorded in a register for between 3 – 5
years which is open to public inspection
Improvement and Prohibition Notices
• Current state of the law – uncertain! Is the test for
determining whether an Inspector had a reasonable belief
that there was a breach of duty or a risk of serious personal
injury subjective or objective?
• Chilcott v Thermal Transfer Limited – clear as mud!
• Guidance at last? - Cases of MHW v Wise and Hague v
Rotary Yorkshire Limited
Improvement and Prohibition Notices
Hague v Rotary Yorkshire Limited
• Case has been argued in the Court of Appeal and the
Judgment is awaited
• Likely to give detailed guidance as to the law surrounding the
service of Notices including :
• Guidance as to when Employment Tribunals should affirm
or modify Notices
• Whether the test to uphold a Notice is subjective or
objective
• Whether matters not known to the Inspector at the time of
service of a Notice can be raised
Improvement and Prohibition Notices cont.
• Whether alternatives (eg use of Section 20 powers) should
be used by Inspectors
• Proportionality – is it relevant?
Corporate Manslaughter update
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R v Cavendish Masonry Limited – May 2014
R v Sterecycle (Rotherham) Limited – November 2014
R v Peter Mawson Limited – February 2015
R v Pyranha Mouldings Limited – March 2015
Corporate Manslaughter – Update
Themes emerging
• Prosecutions still tending to be of small companies
• Prosecutions tend to be linked to personal prosecutions of
directors or even employees (Sterecycle)
• No guidance as to what constitutes "senior management"
• Greater willingness to use publicity orders (Peter Mawson
Limited and, in March 2014, Mobile Sweepers (Reading)
Limited
• A number of on-going investigations/prosecutions but no
charges yet brought against significantly large organisations
Increase in sentencing powers of Magistrates
Section 85 of the Legal Aid Sentencing and Punishment of
Offenders Act 2012 (LASPO)
• Came into force on 12 March 2015
• Applies only to offences committed after 12 March 2015
• Currently, maximum penalty that can be imposed by
Magistrates is £20,000.00 per offence
• Consequences – tactical decisions for Defendants
(particularly large organisations), greater inconsistency in
sentencing
• The Magistrates' Courts ability to manage such cases
Sentencing Council Consultation on sentencing
on health and safety offences, Corporate
Manslaughter and food safety and hygiene
offences
• Consultation ended on 18 February 2015
• Premise of the consultation is that sentencing should:
• Reflect the seriousness of the offence and take into
account the offender's financial circumstances
• Punish, deter and counteract any gain from the offence
• Have a real economic impact to encourage management
and shareholders to comply with legislation and provide a
safe working environment
• Provide greater consistency in sentencing for offences that
only occasionally come before Judges and Magistrates
Sentencing Council Consultation on sentencing
on health and safety offences, Corporate
Manslaughter and food safety and hygiene
offences
• If adopted, the consultations proposals will lead to a step
wise approach as follows:
(i) Determine the offence category
(ii) Decide the starting point and category range
(iii) Proportionality
(iv) Factors which may warrant adjustment of the proposed
fine
Sentencing Council Consultation on sentencing
on health and safety offences, Corporate
Manslaughter and food safety and hygiene
offences
Determining the offence category
• Harm and culpability factors will indicate the seriousness of
the offence
• Culpability ranges from very high (deliberate breach or
flagrant disregard) to low (evidence of minor/non-systemic
failings, no prior warning of a risk to health and safety)
• Harm – determined by looking at the seriousness of the harm
risk alongside the likelihood of it occurring to provide a
category between 1 (very likely to cause death or very
serious injury) and 4 (remote chance of physical or mental
injury)
Sentencing Council Consultation on sentencing
on health and safety offences, Corporate
Manslaughter and food safety and hygiene
offences
Deciding the starting point and category range
This will be based on turnover, the categories being:
Micro – not more than £2 million pounds
Small – between £2 million and £10 million pounds
Medium – between £10 million and £50 million pounds
Large - £50 million and over
Very large – turnover which greater exceeds the threshold for
large organisations
Sentencing Council Consultation on sentencing
on health and safety offences, Corporate
Manslaughter and food safety and hygiene
offences
But it is only a consultation isn't it?
• Proposals are likely to be adopted (as they were in relation to
environmental sentencing)
• Inevitably sentencing for health and safety offences will
increase, particularly for large companies compared with
Definitive Guideline for sentencing in health and safety
offences which currently applies to all sentences passed
after February 2010 – health and safety offences causes
deaths should attract a penalty of not less than £100,000.00
and corporate manslaughter not less than £500,000.00.
• Penalties are now likely to be measured in fatal cases in
many millions of pounds for large organisations.
ANY QUESTIONS
Jon Cooper
Bond Dickinson LLP
E-mail : Jon.cooper@bonddickinson.com
DDI : 01752 677802
Mobile : 07836 504480