IOSH
Humber Branch
Legal Update
Brian Pettifer
2nd December 2015
Enforcement Notices
Hague (HSE Inspector) v Rotary Yorkshire Ltd (2015)
•Unannounced inspection of a high voltage room at a
construction site in Leeds - conductors found left exposed
•Inspectors could not be sure that the conductors were dead
•Critically contractor in charge of the electrical work was
unable to provide documentation that the conductors had
been left dead
•Inspectors thought there was a risk of serious personal injury
•Served prohibition notice under s.22 HSWA, 1974 to prevent
access to the room
Enforcement Notices
Hague (HSE Inspector) v Rotary Yorkshire Ltd (2015)
•Rotary’s appeal against the notice to the Employment
Tribunal failed
•They then successfully appealed to the Divisional Court
•Judge said inspectors should have allowed the company to
prove conductors were dead and could have issued a
direction to leave undisturbed under s20(20)(e) of HSWA
Enforcement Notices
Hague (HSE Inspector) v Rotary Yorkshire Ltd (2015)
•The Court of Appeal overturned this decision and reinstated
the notice
•They observed that the court could consider only issues of
law and not fact
•CoA stated current approach was to ask whether facts which
were known or ought to have been known by the inspector at
the time he served the notice justified the inspector's decision
•The fact that the conductors were subsequently found to be
dead was irrelevant to the inspector's decision at the time the
notice was issued.
Enforcement Notices
Hague (HSE Inspector) v Rotary Yorkshire Ltd (2015)
•It is vitally important for businesses to be aware that all the
relevant information is available to inspectors to best ensure
the opinion they inform is an appropriate one.
Greater Powers to Magistrates
•s85 Legal Aid, Sentencing and Punishment of Offenders Act
2012 (LASPO) - came into force 12th March 2015
•Abolished cap on fines for health and safety offences dealt
with in Magistrate's Court
•They now have the same unlimited sentencing powers as the
Crown Court
•Aims to empower Magistrates to dispose of more cases frees up Crown Court to focus on most serious cases.
•also applies to Construction Products Regs 2013 and
Building Regs
Criminal Courts Charge
•From Criminal Justice and Courts Act, 2015 implemented
through Prosecution of Offences Act, 1985 (Criminal Courts
Charge) Regulations 2015
•Controversially requires Defendants convicted of offences to
pay this charge
•Charge is on top of their legal fees, prosecution, costs fine
and routine surcharge
•Ranges from £150 to £1,200 - varies whether the guilty plea
entered at earliest opportunity or whether there is a conviction
after a trial
•Charge is mandatory and seriousness of the offence,
previous good character, and financial means, are irrelevant
Criminal Courts Charge
•Charges are on a sliding scale
•Conviction by Magistrate's Court (Single Justice Proc.)
•Magistrate's Court - summary offence - Guilty plea
•Magistrate's Court - summary - proof in absence
•Magistrate's Court - either way offence - Guilty plea
•Magistrate's Court - summary - Convicted after trial
•Magistrate's Court - either way - Convicted after trial
•Magistrate's Court - breach of Community Order,
Suspended Sentence Order etc
£150
£150
£150
£180
£520
£1000
£100
Criminal Courts Charge
•Charges are on a sliding scale
•Crown Court - Guilty plea
•Crown Court - Convicted after the trial
•Crown Court - Committal for sentence
plea/convicted
•Absolute discharge; Hospital/Guardianship Order.
£900
£1200
£180
guilty
£520
nil
Criminal Courts Charge
•Very unpopular with Courts and Court-users (i.e. lawyers, staff
and defendants) alike.
•Significant number of magistrates have resigned in protest
•There is an increase in the number of repeat hearings for
failures to pay.
New CDM Regs 2015
•The Construction (Design and Management) Regulations 2015.
(CDM 2015) came into force 6th April 2015
•Replaces CDM 2007.
•Regs cover all building, civil engineering and engineering
construction work including alteration, demolition and
maintenance activities.
•Apply to the whole construction process from concept to
completion in Great Britain and UK territorial waters.
New CDM Regs 2015 – Client’s duties
•Client - major influence on the way a project is procured and
managed
•Has control over the contract, appointments and resources,
including time and money.
•Clients can be either "commercial" or "domestic", and these
provisions apply to both
•Domestic clients are those where the work relates to a home
as opposed to a business
•Duty to appoint a designer and contractor
New CDM Regs 2015 – Client’s duties
•Must appoint principal designer and a principal contractor when
more than one contractor involved
•Must take reasonable steps to ensure that they carry out their
duties
•When the client does not appoint one or both, it must fulfil their
duties
•Duration of appointment should take into account design work
that may continue into the construction phase including issues
that may arise that necessitate modifications to the designs
New CDM Regs 2015 – Client’s duties
•Must appoint principal designer and a principal contractor when
more than one contractor involved
•Must take reasonable steps to ensure that they carry out their
duties
•When the client does not appoint one or both, it must fulfil their
duties
•Duration of appointment should take into account design work
that may continue into the construction phase including issues
that may arise that necessitate modifications to the designs
New CDM Regs 2015 – Client’s duties
•Should ensure that principal contractor is fully briefed on
design matters if principal designer finishes before end of
project.
•Should ensure principal designer passes health and safety file
to the principal contractor at the end of its appointment.
New CDM Regs 2015 – Client’s duties
•Further duties
 provides pre-construction information as soon as is
practicable to every designer and contractor
 ensures contractor (principal contractor) draws up a
construction phase plan before construction begins
 ensures principal designer prepares a health and safety
file for projects with more than one contractor
 informs HSE of projects that are notifiable (ie work
scheduled to last longer than 30 working days; has more
than 20 workers simultaneously at any point; or exceeds
500 person days)
New CDM Regs 2015 – Management
Arrangements
•CDM 2015 guidance notes most clients, will not be construction
experts "and for this reason they are not required to take an
active role in managing the work"
•Nevertheless there is a long list of "suitable" arrangements that
a client must make, maintain and review for managing a project
•Includes allocation of sufficient time and other resources
New CDM Regs 2015 – Management
Arrangements
•“Suitable" management in CDM 2015 means
 construction work can be carried out, so far as is
reasonably practicable, without risks to the health and
safety of any person affected by the project
 sanitary and rest facilities provided for the construction
workers
New CDM Regs 2015 – Management
Arrangements
•Arrangements should cover:
a) assembling the project team
b) ensuring roles, functions and responsibilities of the
project team are clear
c) ensuring effective mechanisms in place for members of
project team to communicate and cooperate with each
other and coordinate their activities
d) how the client will take reasonable steps to ensure the
principal designer and principal contractor comply with
their duties
e) setting out means to ensure health and safety
performance of the designers and the contractors is
maintained throughout the process
New CDM Regs 2015 – Management
Arrangements
•Client must maintain and review its arrangements to ensure
they remain relevant throughout the life of the project.
•When appointing designers and contractors, clients need to
take reasonable steps to satisfy themselves that the appointees
have necessary skills, knowledge, experience and, if an
organisation, the organisational capability to fulfil their roles in a
manner that secures the health and safety of any person
affected by the project.
New CDM Regs 2015 – Designers
•HSE believes designers are important because they have
strong influence during the concept and feasibility stage of a
project
•Designer is an organisation (or person) that prepares or
modifies a design for a construction project or arranges for or
instructs someone else to do so.
•Can include architects, consulting engineers, quantity
surveyors, and technicians.
New CDM Regs 2015 – Designer’s Duties
•Designers, when preparing or modifying a design must use
general principles of prevention and any pre-construction
information to eliminate, so far as is reasonably practicable,
foreseeable risks to the health and safety of any person who is:
 carrying out or liable to be affected by construction work
 maintaining or cleaning a structure
 using a structure designed as a workplace
•Where elimination is not reasonably practicable
 reduce or control the risks through design;
 provide information about the risks to the principal
designer
 ensure health and safety info is in health and safety file.
New CDM Regs 2015 – Principal Designer
•New duty holder - replaces the CDM Coordinator
•Responsibilities stretch from contract design through to the
planning, and delivery of the construction work
•Principal designer coordinates work of others in the project
team
•Ensures significant and foreseeable risks are managed
throughout the design process
New CDM Regs 2015 – Principal Designer
•Principal Designer’s duties similar to the Designer’s
•In addition the principal designer must:
 ensure all persons working at the pre-construction phase
cooperate with the client, the principal designer and each
other
 establish that effective communication is occurring
 provide pre-construction information to every designer
and contractor appointed, or being considered for
appointment to the project.
New CDM Regs 2015 – Principal Designer
•Principal designer must liaise with the principal contractor for
the duration of its appointment
•Where appointment of the principal designer finishes before the
end of the project must ensure that the principal contractor has
information that allows it to be:
 aware of the risks that have not been eliminated in the
design
 understand means employed to reduce or control those
risks
 understand the implications for implementing the design
and work during the remainder of the project.
•Principal designer should arrange for handover of the health
and safety file to the principal contractor
New CDM Regs 2015 – Cooperating &
Communicating
•All persons with duties or functions under the Regs must
cooperate with any person working on any project at the same
time or on an adjoining construction site so that duties are
complied with
•Anything they believe likely to endanger health or safety must
be reported to the person in control
•Person in control should encourage workers to stop work and
report dangerous conditions
•Regular project meetings can facilitate such cooperative
behaviour.
New CDM Regs 2015 – Cooperating &
Communicating
•CDM 2015 requires all information and instruction should be
comprehensible
•Should be provided as soon as practicable and always before
the work begins
•Should be in simple clear English and/or other languages
where appropriate
•Amount of detail should be proportionate to:
 the scale and complexity of the project
 the health and safety risks
 the nature and purpose of the messages that need to be
communicated
New CDM Regs 2015 – Principal Contractor
•A Principal Contractor (PC) must be appointed by the client
when construction project involves more than one contractor
•The PC coordinates the construction phase.
•The PC must possess the skills, knowledge and experience to
carry out the role
•The PC plans, manages and monitors construction phase to
ensure that so far as is reasonably practicable the work is
carried out without risks to health and safety
•The PC must take into account the general principles of
prevention
New CDM Regs 2015 – Principal Contractor
•The PC must draw up a construction phase plan (or arrange for
it to be drawn up) before setting up a construction site
•The plan sets out arrangements for securing health and safety,
the site rules and any other measures concerning specified
work - should cover topics such as:
 PPE, parking, use of radios and mobile phones, smoking,
restricted areas, hot works and emergency arrangements.
•The rules should be clear, easily understood and brought to the
attention of everyone on site
•Rules should be translated into other languages when
necessary
New CDM Regs 2015 – Principal Contractor
•PC must take account of risks to all who may be affected by the
projects
•Must consider provision of plant and equipment, supervision
and information, instruction and training, and resources
(including time)
•Visible leadership should be demonstrated e.g. by regular
planning meetings between the PC and contractors
•PC should ensure:
 suitable site inductions provided
 boundaries of the site defined and barriers erected to
prevent access from unauthorised persons
 at least minimum welfare facilities provided
New CDM Regs 2015 – Principal Contractor
•When 2 or more projects are taking place on the same site
simultaneously but independently of each other:
 essential there is clarity over who is in control during the
construction phase in any part of the site at any given time
 all PCs must cooperate with one another if one of them
cannot be in overall control
 PCs must coordinate their work and take account of any
shared interfaces, for example traffic routes.
•The PC must ensure there is engagement so that employers
are involved in decisions regarding health and safety
•HSE believes effective worker involvement develops from
effective consultation and cooperation between the PC and
other contractors on site
Coroner’s Court Issues
•Follow up of changes in coronial law brought about by
Coroners and Justice Act 2009 and secondary legislation
implemented on 25th July 2013
•Under the new rule 8 inquest must be completed within 6
months from the date on which the Coroner is made aware of
the death or as soon as is reasonably practicable after that date
•Shown that inquests involving multiple parties, complex, or
extensive evidence take much longer to conclude particularly
when juries are required
•Remains to be seen what steps Chief Coroner will take to
ensure target timescale achieved in most cases.
Coroner’s Court Issues
•Coroners obliged to provide disclosures to interested parties
under Part 3 of new Inquest Rules
•Coroner must normally disclose copies of relevant documents
to an interested party, on request
•Includes photographs, CCTV footage and paper documents
•Disclosures should be by electronic means wherever possible
•Categories of documents that should be enclosed to interested
parties includes post mortem and expert's reports etc
•Exceptions where coroner may refuse to provide disclosure
under Rule 15
Coroner’s Court Issues
•Coroner has duty under 2009 Act to report actions to prevent
future deaths – report should:
 be to a person who the coroner believes may have the
power to take such actions
 be done where the investigation reveals something which
gives rise to a concern that there is a risk of deaths in the
future
 not specify what action should be taken to eliminate or
reduce that risk
•Coroners can request response to PFD reports during
investigations
Coroner’s Court Issues
•A PFD is best avoided- careful steps can be taken to convince
a coroner against making one
•If one is made and response required, careful consideration
should be given to legal and reputational implications and needs
to demonstrate any improvement simply enhances a safety
measure that already met required standards
•244 PFD reports issued between April and September 2013 highest number in any six-month period
•Becoming more commonplace, particularly in cases involving
deaths in hospitals or in care.
Coroner’s Court Issues
•Since 2013 Coroners increasingly driving forward
investigations themselves
•They identify relevant witnesses and documents or highlight
issues which may be relevant to the inquest
•They rely less on the police or HSE to gather evidence and
present them with a report.
•Organisations need to be cautious, and if necessary seek legal
advice, about providing statements and producing other
evidence that could lead to prejudice or self-incrimination in
other proceedings.
Sentencing Guidelines - Environmental
•Impact of separate guidelines for environmental offences since
taking effect in July 2014 has been more or less as expected so
far
•Apply specifically to waste and environmental permitting
offences
•Court also pays regard to them when dealing with other
environmental offences
•Separate guidelines for organisations and individuals
Sentencing Guidelines - Environmental
•Court considers the offence category i.e. deliberate, reckless,
negligent or low/no culpability
•Size is calculated based on turnover:
 Large - £50m or more
 Medium - £50m down to £10m
 Small - £10m down to £2m
 Micro - less than £2m
•There is a sliding scale from £3m to £100
•For very large companies may be necessary to move outside
the suggested range to achieve a proportionate sentence
Sentencing Guidelines - Environmental
•Example of application of new guidelines - fine of £250,000
imposed on Thames Water (TW) at Reading Crown Court
•Case involved sewerage from a pumping station leaked into a
brook within an area of natural beauty over a 6 day period
•TW has a turnover of £1.9b and court regarded its offending as
falling within the negligent category 3 bracket (starting point
£60,000)
•TW's turnover greatly exceeded the £50m threshold for large
companies so court applied a multiplier of five to fix a starting
point of £300,000
•Mitigating factors that TW had already installed more robust
pumps and had pleaded guilty at the first opportunity considered
Sentencing Guidelines - Environmental
•On appeal Court of Appeal on 8th December 2014 did not
approve of this "mechanistic" extrapolation to arrive at the level
of fine
•Emphasised that starting points to be adopted for very large
companies, run for profit, are under Criminal Justice Act 2003:
section 142 - the punishment of the offence
section 143 - the seriousness of the offence
section 164 - the financial circumstances of the offender
Sentencing Guidelines - Environmental
•The Court upheld the fine, concluding "We would have had no
hesitation in upholding a very substantially higher fine“
•The court pointed out that the objectives of punishment,
deterrence and the removal of gain must be achieved by the
level of penalty imposed
•May well result in a fine up to 100% of the company's pre-tax
net profit for the year even if this results in fines in excess of
£100m
•Watch out for large fines!
Sentencing Guidelines – Health and Safety
•Sentencing Council's 3 month consultation on new sentencing
guidelines for health and safety offences, corporate
manslaughter and food safety and hygiene offences closed on
18th February 2015
•Section 125(1)of the Coroners and Justice Act, 2009 provides
that when sentencing offences committed after 6th April 2010
every court:
a) must in sentencing an offender, follow any sentencing
guidelines which are relevant to the offender's case, and
b) must in exercising any other function relating to the
sentencing of offenders, follow any sentencing guidelines
which are relevant to the exercise of the function, unless
the court is satisfied that it would be contrary to the
interests of justice do so.
Sentencing Guidelines – Health and Safety
•Guideline specifies ‘offence ranges’ i.e. the range of offences
appropriate for each type of offence
•Within each offence, the Council has specified a number of
categories which reflect varying degrees of seriousness
•Culpability is graded from:
 Very high (flagrant disregard for the law)
 High (falling short of appropriate standard)
 Medium (systems in place but not sufficiently adhered to)
 Low (failings were minor or occurred as incidents)
Sentencing Guidelines – Health and Safety
•Harm is broken down into 3 categories:
 Level A - Death or significantly reduced life expectancy or
lifelong dependency.
 Level B - Physical or mental impairment with significant
long term effect.
 Level C - Less serious.
•Offender categories are divided into:
 Large (turnover of £50m and over).
 Medium (between £10m and £50m).
 Small (between £2m and £10m)
 Micro (not more than £2m).
Sentencing Guidelines – Health and Safety
•Penalties range from fines of £10m for large organisations to
£50 for low culpability for micro organisations
•For very large companies (i.e. above £50m turnover) - there
may be a proportionate sentence outside the suggested range
•At individual level including breaches of ss7, 36 and 37(1) of
HSWA, 1974 there is a similar breakdown of culpability and
harm
•Recent fines in health and safety cases have been as high as
£700,000 against Sellafield, £500,000 against Network Rail and
£200,000 against Southern Water
Sentencing Guidelines – Health and Safety
•Detailed survey by Pinsent Masons solicitors concluded no
discernible increase in fines
•Until recently there was no tariff in health and safety cases and
the court has a duty to consider not only the seriousness of the
offences but also the means of the offender
•Advice from lawyers is that defendant companies should
exercise more frequently their right to call evidence as part of its
mitigation
•In some cases members of the board should be asked to
explain its record of offending and the steps it has taken to
reform itself.
Sentencing Guidelines – Health and Safety
•Mitigating factors include:
 no previous convictions
 high level of cooperation with the investigations
 evidence of steps taken voluntarily to remedy the
problem.
•Sentences range from 2 years custody to conditional discharge
•There are statutory aggravating factors including previous
convictions, cost cutting at the expense of safety, and poor
health and safety record
•For Corporate Manslaughter where the maximum fine in
unlimited the offence range is from £180,000 to £20m.
•Guidelines also apply to Food Safety and Hygiene (England)
Regulations 2013
Custodial (Prison) Sentencing
•The first case of a s7 HSWA, 1974 immediate prison sentence
occurred in 2015
•Involved HSE v Siday Construction Ltd and Sidebottom and
Golding
•A ground worker was killed during a basement conversion
project at a London town house in 2010
•A health and safety advisor, (Richard Golding) who provided
health and safety services to the site by helping to write the
method statement and carrying out the inspections, was
convicted of a breach of s7 HSWA 1974
Custodial (Prison) Sentencing
•Underpinning was being carried out, and had been safely done
before
•On this occasion HSE considered that site manager's actions
fell well short of those expected of a competent person in that
position and was convicted of gross negligence manslaughter
Custodial (Prison) Sentencing
•Health and safety advisor was criticised for:
 helping to prepare a method statement that was
inadequate
 Undertaking inadequate site inspections (the prescribed
method of working was not being followed)
 failing to ask any questions in relation to temporary works,
principally in relation to the propping and shoring of open
excavations
 failing to stop works despite having the authority to do so
•In sentencing the safety advisor the judge said that his failure
showed a staggering level of disregard for the workforce.
Custodial (Prison) Sentencing
•The health and safety advisor went to prison for 9 months.
•In this case the site manager and the health and safety advisor
were singled out for prosecution
•Other parties (principal contractor, the site supervisor, the
architects and designers and the clients) were according to
many, fortunate in not also having to face prosecution
Custodial (Prison) Sentencing
•In the 41 year period since HSWA, 1974 came into force up to
December 2014 there have been:
 124 individual immediate or suspended sentences for
work related health and safety cases
 47 have been imprisoned for the Common law offence of
manslaughter following work related death
 37 of the 124 sentences imposed have been during the
year to November 2014 alone and a further 26 in the
previous year
•Law enforcement is showing its teeth!
Legislation and Common Law Development
•It is noticeable that legislation and common law development
have been far less in last couple of years with Deregulation,
Young, and Lofstedt and their fall-out providing plenty of grist to
the Legal Update.
•We now seem to be experiencing a tightening of enforcement
with s22, s7 HSWA 1974, and sentencing Guidelines in health
and safety and environmental matters coming into play.
Legislation and Common Law Development
•What next?
•A Corporate Manslaughter case informing us exactly what
`senior management' and the boundaries of who can be
included.
•I do not forecast a quiet lull for you, I'm afraid, because the
unexpected and the overlooked (e.g. road risk) are just around
the corner and not to speak of any consequences of a possible
Brexit.
Any Questions?