Health & Safety Compliance Update
8 April 2015
Agenda
 Enforcement Trends
 Corporate manslaughter – where are we now?
 What is material risk? (HSE v Polyflor)
 A New era for CDM
 The importance of monitoring and review in health and safety management
systems
 The importance of vehicle/pedestrian segregation – what are the cases
tellling us?
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Enforcement trends - Are fines on the up?
 R v Sellafield Ltd - £700,000 fine (after guilty plea)
 "The fine must be fixed to meet the statutory purposes with the objective of ensuring
that the message is brought home to the directors and members of the company"
 "No ceiling on the amount of a fine that can be imposed“
 R v Network Rail - £500,000 fine (after guilty plea)
 Fine "incentivise the executive directors…to pay the highest attention to protecting
the lives of those who are at real risk from its activities“
 R v Southern Water – £200,000 fine
 "There would have been no basis for interfering with the fine even if it had been
substantially greater“
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Enforcement trends - Are fines on the up?
 United Utilities - £750,000 fine (after guilty plea) - 3 March 2015
 Pump breakdown allowed seven million litres of raw sewage to flow into Duddon
Estuary
 Appeal on level of fine being considered
 Tata Steel - £200,000 fine (after guilty plea) - 16 February 2015
 Three workers sustained serious burns when a ladle holding 300 tonnes of molten
metal slipped from a crane, spilling its load, which then ignited on the factory floor
 Thames Water - £300,000 fine (after guilty plea) – 8 December 2014
 Worker was killed by a reversing excavator at a treatment works
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H&S prosecution statistics
 In the latest year (2013/14) HSE:
 prosecuted 582 cases (574 in 2012/13), with a conviction secured in 547 cases, a
conviction rate of 94%;
 prosecuted 988 offences, resulting in 881 convictions, a conviction rate of 89%;
 prosecutions led to fines totalling £16.7 million (£15 million in 2013/14), an average
penalty of £18 944 per offence.
 In the latest year local authorities:
 prosecuted 92 cases (105 in 2012/13), with a conviction secured in 89 cases, a
conviction rate of 97%;
 prosecuted 199 offences, resulting in 192 convictions, a conviction rate of 96%;
 prosecutions led to fines totalling £1.6 million, an average penalty of £8 225 per
offence.
[Source: HSE]
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What impact are Sentencing Guidelines expected
to have?
Sentencing H&S offences – current position
 Breach of section HSWA
 £20K maximum in Magistrates’ Court
 Unlimited in Crown Court
 Imprisonment
 Breach of Regulation
 £20K maximum in Magistrates’ Court
 Unlimited in Crown Court
 Imprisonment
 Very general sentencing principles based upon:  Seriousness of offence
 Culpability of defendant
 Means of defendant
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What impact are Sentencing Guidelines expected
to have?
Sentencing H&S offences - current position
 Sentencing Guidelines Council - Corporate Manslaughter and Health &
Safety Offences causing Death
 Corporate Manslaughter – “The appropriate fine will seldom be less than £500,000
and may be measured in millions of pounds.”
 Health and Safety offences Causing Death – “The appropriate fine will seldom be
less than £100,000 and may be measured in hundreds of thousands of pounds or
more.”
 A more prescriptive approach - applicable to sentencing of organisations on
or after 15 February 2010
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What impact are Sentencing Guidelines expected
to have?
 Sentencing H&S offences - the new regime - Health and safety offences,
corporate manslaughter and food safety and hygiene offences guidelines
 Very similar to environmental guidelines (offences sentenced after 1 July
2014)
 Prescriptive tariff based approach based upon
1. Culpability
2. Harm or RISK of harm
3. Size of organisation BASED ON TURNOVER
 To get to STARTING POINT and RANGE OF FINE
 RANGE OF FINE is meant to provide FLEXIBILITY and DISCRETION
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H&S Sentencing Guidelines
Very large organisations - may need to move outside these boundaries
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H&S Sentencing Guidelines
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H&S Sentencing Guidelines
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H&S Sentencing Guidelines
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H&S Sentencing Guidelines - Individuals
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Case Study
 Employee at waste management company using mobile plant to load
paper/card onto conveyor belt
 Raised safety bar and lent out of front of machine
 Boom on front of machine crushed his head. He died at the scene.
 HSE found:
 he had not been formally trained, assessed or supervised
 Risk assessments did not cover the use of the machine
 mobile plant had not been properly maintained (missed its last 2 services)
 self-employed maintenance engineer had also used it over several months with no
training
 Issue – Safety bar failed to operate as expected (lifting it should have
isolated moving parts) – fault of manufacturer
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Case Study cont…
 What was company charged with?
 Breaching s 2(1) and 3(1) of the Health and Safety at Work etc. Act 1972
 Guilty / not-guilty?
 Guilty plea entered
 What was the fine / costs?
 Fined £200,000, plus £77,402 costs and £4,450 towards funeral expenses
 What could fine have been if Sentencing Guidelines in force?
 annual turnover in excess of £750 million
 Likely to be classed as “very large”
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Case Study cont…
 Culpability?
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Case Study cont…
 Harm?
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Enforcement Trends - Conclusion
 If the sentencing guidelines were in force, case study fine would have been millions (if
classed as a “large organisation”, high culpability and harm Category 1, range would
be £1.5 - £6 million)
 Fines already increasing but expected to increase further
 Fine limits in Magistrates’ Court may be removed under LASPO
 Sentencing Guidelines expected to apply to cases sentences after June / July 2015
 Avoiding prosecution has never been more important
 If prosecuted, key is demonstrating low culpability / harm – helpful to seek prosecution
agreement in advance
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Corporate Manslaughter – where are we now?
Date
Company
Individuals?
Fine
Costs
2011
Cotswold Geotechnical Ltd
Yes - dropped
£385,000 (inc costs)
-
2012
JMW Farms
No
£187,500
£13,000
2012
Lion Steel Ltd
Yes - dropped
£485,000
£84,000
2013
J Murray & Son Ltd
Yes - dropped
£100,000
£10,000
2013
Princes Sporting Club
Yes - dropped
£34,579.69 + Publicity
Order
£100,000
March 2014
Mobile Sweepers (Reading) Ltd
Sole Director
£8,000 (company),
£183,000
(Director) + 5 year
disqualification, Publicity
Order
£4,000 (company),
£8,000 (Director)
March - June
2014
MNS Mining Ltd
Manager – Gross
Negligence Manslaughter
NOT GUILTY
NOT GUILTY
March 2014
PS & JE Ward Ltd
No
NOT GUILTY
NOT GUILTY
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Corporate Manslaughter – where are we now?
(2)
Date
Company
Individuals?
Fine
Costs
May 2014
Cavendish Masonry
Limited
No
£150,000
£87,000
October 2014
Sterecycle
4 employees – s.7
£500,000
Unknown
Jan 2015
Pyranha Mouldings
Limited
3 employees - HSWA
GUILTY – Awaiting
sentence
-
Charges – Sept 2014
Trial late 2015
Baldwins Crane Hire Ltd
No
Ongoing
-
Charges – Oct 2014
Huntley Mount
Engineering Ltd / Lime
People Training Solutions
Ltd
Yes – director and
supervisor
Ongoing
-
Jan 2015
Diamond & Son (Timber)
Ltd
No
£75,000
£15,852
Feb 2015
Peter Mawson Ltd
Yes – 8 months
suspended and unpaid
work
£200,000
£31,504.77
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Corporate manslaughter – acquittals
PS & JE Ward Ltd
 Employee electrocuted when he tipped an hydraulic lift trailer in a field
striking overhead 11,000 volt cables
 Joint investigation by police and HSE revealed that the day before the
accident, one of the company’s directors, Peter Ward, had performed the
same task
 No evidence that Ward had given instructions to the employee to repeat the
task
 Accepted that the employee had acted on his own initiative
 The employee had attended a FLT training course which covered the risk of
working under live cables
 Jury acquitted PS & JE Ward of Corporate Manslaughter
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Corporate manslaughter – acquittals
PS & JE Ward Ltd
 Convicted of breach of s.2 HSWA
 Fine - £50,000
 Costs - £48,000
 Company given three years to pay
 Factors relevant to s.2 HSWA conviction
 Only a general risk assessment for working in the field
 Nothing specific about tipping the trailer in that field
 No plan provided to workers identifying the location of power lines in the field
 Inadequate instruction and training in relation to safe working near to overhead
power lines
 The above factors were clearly insufficient to convince the jury that any
breach was GROSS but sufficient to convince them that the company had
not taken reasonably practicable steps to eliminate and/or reduce the risk to
ALARP
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Corporate manslaughter – acquittals
MNS Mining Ltd
 Four miners were killed at Gleision Colliery in Wales in September 2011
 A controlled explosion was carried out to connect two parts of the pit to
improve ventilation but moments later 650,000 gallons of water flooded the
tunnels where seven miners were working
 Company charged with Corporate Manslaughter
 Mine Manager charged with four counts of Gross Negligence Manslaughter
[NB Mine Manager working in same area at the time but managed to crawl
free]
 Prosecution case was that when the Mine Manager ordered the coal face to
be blasted, he had not adequately checked if there was a body of water in
the old mine workings behind it
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Corporate manslaughter – acquittals
MNS Mining Ltd
 Mine Manager said he had inspected the area three times prior to the
accident, including the day before, to ensure there was no danger, including
accumulation of water
 Expert geological evidence said it was "possible" and "probable" that the
water collected after the last inspection
 Jury returned not guilty verdicts on all counts after only two hours
deliberation
 Note: Oddly, no other H&S charges brought against the company or the
Mine Manager
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Corporate manslaughter
Lion Steel
 Employee fell 30 feet through a skylight which resulted in him suffering fatal
injuries
 Employee had not received adequate training to work on the roof, there was
no risk assessment or safe system of work for undertaking roof work at the
site and there was inadequate supervision
 Directors charged with gross negligence manslaughter and breaching s.37
HSWA (manslaughter charges against 2 directors collapsed)
 Company charged with breaching s.2 HSWA
 Company pleaded guilty to corporate manslaughter even though not on trial
for that offence at the time (due to be heard at later date) – fined £480,000
plus £84,000 costs
 Remaining charges against directors dropped
 Directors prosecuted to put pressure on the company to plead guilty???
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Changes to sentencing practice and procedure
The new regime - Corporate Manslaughter
By definition culpability and harm must be very serious.
TWO STARTING POINTS ADVOCATED
 A - More serious offences – HIGH LEVEL of harm or culpability
 B - all other offences
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Consultation on draft guidelines for corporate
manslaughter
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Corporate manslaughter - Conclusion
 Corporate manslaughter prosecutions on the increase
 Once the guidelines come into force, fines likely to increase dramatically
 Fine’s imposed to date would have been much higher if the guidelines were
in force e.g. Lion Steel (turnover in the region of £10million)
 Query whether Prosecution may bring charges against directors to
encourage company to plead guilty.
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What is material risk? (HSE v Polyflor)
 Court of Appeal - 18 July 2014

How far do employers have to go to guard against the risks to safety of an
employee doing something they know is obviously unsafe?

In other words, what is a “material risk”, such that a reasonable person would
appreciate it and take steps to guard against it?
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HSE v Polyflor Ltd
 Mr Printy, Technical Support Engineer employed by Polyflor, undertook
maintenance work on a granulator infeed conveyor aka the “hugging
conveyor” in May 2011
 Mr Printy was tasked to complete removal of a blockage. Mr Printy was to
check the positioning and running of the belt before putting the machine back
in operation
 The blockage had been cleared by others with the guards removed but with
the machine isolated
 A PTW was issued as the machine needed to be run but with the guards
removed
 Mr Printy heard the belt rubbing and in an attempt to establish where it was
rubbing put a spanner into the machine and as a consequence his arm was
dragged into the machine
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HSE v Polyflor Ltd
 Mr Printy frankly accepted that he had been blasé and foolish in putting the
spanner into the operational machine
 Argument – was the risk of Mr Printy putting a spanner into a moving
machine a material risk to health and safety such that a reasonable person
would appreciate it and take steps to guard against it?
 Defence contended no – in essence arguing it was unforeseeable that Mr
Printy would put a spanner into an unguarded and operational machine, in
which case prosecution lose case and reverse burden of proof is not
triggered
 Prosecution contended yes – in which case the reverse burden of proof is
triggered and it is then for the defendant to prove that it did all that was
reasonably practicable to avert the risk
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HSE v Polyflor Ltd
 Note – Prosecution only have to adduce some evidence of risk, not
necessarily the risk that actually manifested
Or put another way
 Some evidence that an employee was, or employees were, exposed to the
possibility of danger
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HSE v Polyflor Ltd
 Court of Appeal – fact that guards were removed whilst the machine was
operational (converse of normal operation) meant that employees were
exposed to clear, obvious and material risk to their health and safety and “we
might add, to the consequences of their own carelessness or indeed
foolishness”
 Therefore reverse burden of proof triggered
 Defendant did not put forward a positive case in terms of reasonable
practicability
 Note: Plastic screen inserted post-accident allowing operator in area of
bottom roller to look straight down onto the belts
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HSE v Polyflor Ltd - Conclusion
 When considering “material risk”, employers need to consider the potential
for human error and the extent to which this needs to be eliminated /
controlled
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A new era for CDM - the Construction (Design
and Management) Regulations 2015
 Expected to come into force on 6 April 2015
 Transitional period until 6 October 2015 (for on-going projects, Principal
Designer to be appointed by this date unless project completed)
 Simplification – less duplication and 25% shorter
 Replacement of ACOP with clear, targeted guidance – available now
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A new era for CDM – What is changing?
 Principal Contractors and Principal Designers to be appointed wherever
more than one contractor will be appointed (under CDM 2007, only notifiable
projects require a CDM co-ordinator). Appointment must be done in writing to
avoid client assuming these roles.
 The CDM Co-ordinator role is to be removed - the role of the CDM Coordinator will be split between the principal designer, the client and the
principal contractor.
 Principal Designer to be responsible for health and safety in design phase:
 Principal Designer must be a “designer”
 The responsibility for coordination of the pre-construction phase, crucial to the
management of any successful construction project , will now rest with an existing
member of the design team
 Purpose of Principal Designer to help eliminate and / or reduce the health and
safety risks to those involved in the subsequent construction work and the
maintenance and use of the building, facility or structure once it is completed.
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A new era for CDM – What is changing?
 Introduces strict liability for the Client (i.e. an organisation or individual for
whom a construction project is carried out), who will be accountable for the
impact of their decisions on and approach to health, safety and welfare on
the project.
 Client must ensure (strict liability) that the principal contractor prepares a
Construction Phase Plan before work commences
 Client must ensure that the Principal Designer complies with their duties.
 On completion, the client will be provided with a Health and Safety Plan,
giving safety information on managing the work.
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A new era for CDM – What is changing?
 Replace competency based requirements with adequate information,
instruction, training and supervision – no minimum standards set
 New responsibilities for domestic clients
 Responsibilities differ from the duties on commercial clients.
 Domestic clients will be able to delegate their duties to a contractor or the principal
designer.
 Notification trigger – either 30 working days and on which more than 20
workers are working simultaneously or exceeding 500 person days.
 This should mean fewer projects will require notification.
 It has now become the client’s duty to notify.
 Notification will no longer give rise to additional duties.
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A new era for CDM - Conclusion
 Those involved with construction projects should start familiarising
themselves with the new requirements now
 Key:
 Preparation
 Knowing what your duties are and ensuring you comply with them
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The importance of monitoring and review in
health and safety management systems
 Successful Health & Safety Management- HSG65
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HSG65
Key points:
Check
 Monitoring
 Active (audits)
 Reactive (analysis of accidents/near misses to establish trends)
Act
 Review
 Revisit policy, arrangements, procedures etc. based on results of monitoring
 Changes in legislation
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IoD Guidance
 Changed to align it with changes to HSG65
 Documents meant to be considered together
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IoD Guidance – The Key Components
 Is the health and safety management system fit for purpose?
 Is the health and safety management system being implemented and
followed in practice?
 Checklist
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HSG65 & IoD Guidance
 Director’s focus: 1. MONITORING (Check)
2. REVIEW (Act)
3. Ensuring the H&S function is COMPETENT AND PROPERLY
RESOURCED
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Management Information – “A double edged
sword”
 Demonstrates monitoring and review
 Knowledge marker if not acted upon
 NOTE – Not just what you knew but what you ought to have known
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Monitoring and review in Sellafield
“Indicate basic management failures and a deeply concerning lack of
procedures formally established and rigorously enforced to ensure that
equipment was properly set up at the outset and regularly and routinely
checked”
“The Management failures are not confined to specific individuals or
failures at certain levels to follow established procedures. They
demonstrate …a custom within the company which was too lax and… to
a degree complacent, and senior management must bear its share of
responsibility”
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Monitoring and review in Network Rail
“However those failures must be judged in part in the context of Network Rail’s
poor previous offending in respect of level crossings (which reflect on the
senior management)”
“Nonetheless the record of Network Rail reflects the fact that accidents at level
crossings were prevalent. That makes clear the necessity for all the directors to
pay much greater attention to their duties in this respect”
“There was evidence before us (but not the judge) that the bonuses of the
directors had been adjusted downwards to a minor (though inadequate) extent
in part because of the poor level crossing safety record to which we have
referred. Plainly the bonuses should have been very significantly reduced”
“Significant reduction of a bonus will incentivise the executive directors on the
board of companies such as Network Rail to pay the highest attention to
protecting the lives of those who are at real risk from its activities”
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Monitoring and review in Southern Water
Against the backdrop of 160 previous offences, the court said:
“In the absence of any explanation as to what the main board of the company
has done to reform itself, to eliminate its offending behaviour and to give a
detailed explanation of what happened in the incident which was before the
learned judge, there is very little mitigation that can be put forward. It is very
important – and we wish to make this clear – that in offences of the seriousness
of the kind represented by this case it is incumbent on the Chief Executive and
main board of the company – particularly one with a serious record of minor
criminality which this company has – to explain to the court the cause of its
offending behaviour, the current offence and its proposals for protecting the
public from such further offending”.
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Workplace Transport – Pedestrian and Vehicle
Segregation
 There has been guidance available on workplace transport since the 1990s
 Despite this, according to the HSE:
 every year there are over 5000 accidents involving workplace transport - about 50
people are killed
 the most common causes are people falling from or being struck by a vehicle,
objects falling from a vehicle, or vehicles overturning.
 around a quarter of all deaths involving vehicles at work occur as a result of
reversing
 According to the European Agency for Health and Safety at Work:
 Every year about 5500 people are killed in workplace accidents in the EU, of which
about a third are related to transport.
 The incidence of accidents is higher in SMEs with fewer than 50 employees.
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Workplace Transport – Pedestrian and Vehicle
Segregation
Booker Cash & Carry
 Branch Assistant suffered fatal injuries on 12 December 2011
 As she walked through the “Goods in” area she was struck by a reversing
FLT which was loading goods onto a lorry
 What the company did wrong:  “Goods in” area did not have separate designated pedestrian routes
 Access on foot was not restricted whilst FLTs operated
 Risk assessments were generic
 High viz clothing was not listed as a control measure in the risk assessment;
consequently most employees did not wear it in the area
 Internal audits looked at FLT use – but they did not identify that control measures
were insufficient and nor did they comment on site layout or vehicle–pedestrian
segregation
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Workplace Transport – Pedestrian and Vehicle
Segregation
Booker Cash & Carry
 Admitted breach s.2 HSWA
 Judge found that breach was significant cause of death triggering Sentencing
Guidelines starting point of £100,000
 Fine £175,000 (after discounting 1/3 for early guilty plea), Costs £18,500
 Changes made:
 The company prevented pedestrian access to the goods in area and yard while fork
lift trucks were being operated
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Workplace Transport – Pedestrian and Vehicle
Segregation
Tangerine Confectionary Ltd
 Employee sustained serious injuries to his foot when a FLT was driven
through plastic strip curtains at the warehouse entrance and collided with his
ride-on pallet truck
 Plastic strip curtains were designed to keep out insects and birds – they
obscured the view of the warehouse entrance
 A large number of pallets had been put into space from two other
warehouses whilst maintenance work was carried out – this restricted the
space drivers had to operate vehicles and increased flow of traffic
 HSE investigation revealed that the incident was one of three collisions in the
same area over a three month period
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Workplace Transport – Pedestrian and Vehicle
Segregation
Tangerine Confectionary Ltd
 What the company did wrong:  the Company introduced physical hazards onto walkways without assessing their
effects
 workers had raised concerns about restricted vision and overcrowding but they were
ignored
 Post-accident changes included:  changing the layout of the warehouse
 Installing proximity alarms
 marking “in” and “out” lanes
 Pleaded guilty to breach of Regulation 17(1) of the Workplace (Health, Safety
and Welfare) Regulations 1992 - every workplace shall be organised in such
a way that pedestrians and vehicles can circulate in a safe manner
 Fine £120,000
 Costs £9,500
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Workplace Transport – Pedestrian and Vehicle
Segregation
Lincolnshire Field Products Ltd
 Farm manager was walking from his car across yard to a potato grating shed
when he was struck by FLT
 What the company did wrong:  Custom and practice not to wear high viz clothing
 Common practice for FLTs and pedestrians to share entrance to grating shed
 Warnings and advice went unheeded: • Previous enforcement
• Previous accident
• Ignored advice from H&S Consultant
 Not implemented control measures identified in risk assessments
 Fine – Section 2 HSWA - £100,000
Section 3 HSWA - £65,000
 Costs - £39,000
 Fine represents 17.5% of pre-tax annual profit
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Workplace Transport – Pedestrian and Vehicle
Segregation
“A guide to workplace transport safety”
 Updated September 2014
 Shorter and more streamlined
 Specific advice on:
 Safe site
 Safe vehicle
 Safe driver
 New sections on:
 Multi-deck vehicles
 Multi-site deliveries
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Workplace Transport - Conclusion
 Workplace transport continues to be a high risk area
 Employers should ensure that they comply with the “Guide to workplace
transport safety”
 Need to ensure all types of workplace transport are covered - ‘Workplace
transport’ means any vehicle or piece of mobile equipment used in any work
setting. It covers a very wide range of vehicles, from cars, vans, lorries and
lift trucks, to less common vehicles and plant such as straddle carriers and
rubber-tyred gantries. It does not include vehicles moving on public roads.
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Conclusion
 It has NEVER been cheaper to offend than comply
 New prescriptive approach to sentencing will result in increased fines
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Conclusion
 Do the math!
1. Cost of compliance
V
2. Offend - fine
-
prosecution costs
-
management down time
-
adverse reputational impact
-
cost of compliance (steps to prevent re-occurrence/mitigation)
 1 is cheaper than 2 by miles!
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Contact Information
Rob Elvin
Partner
0161 830 5257
rob.evin@squirepb.com
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