Legal Tips For Health and Safety Professionals

VIDEO POST: Legal Tips For Health and Safety Professionals

                                               AUTHOR: Hayley Saunders
Guest Blog Post

We have had the pleasure of knowing Hayley for many years, finding her to be a wealth of knowledge in terms of H&S criminal law. As a specialist H&S criminal law practitioner she has 15 years of experience in defending large corporate clients. More recently she has experienced an increase in defending individuals facing personal prosecutions at Director level and at lower levels within business.

Let's Talk About the Impact of Brexit on the Enforcement of H&S Legislation in the UK...

The UK Government has committed to protecting and enhancing existing workers’ rights, so it is felt there should be minimal Brexit impact on occupational safety and health in the UK.

The Great Repeal Bill will repeal the European Communities Act 1972 on the day we leave the EU. The Great Repeal Bill will convert EU law as it applies in the UK into domestic law on the day we leave – so that wherever practical and sensible, the same laws and rules will apply immediately before and immediately after our departure.

Only a  small amount of directly applicable law, such as REACH, may need a UK version but generally there is no need for urgent revision of EU-derived health and safety law, because the framework directive was inspired by the UK’s own Health and Safety at Work Act.

It's Time to Talk About The Impact of the New Sentencing Guidelines...

The sentencing guidelines came into effect in February 2016 to provide a framework for penalties for workplace health and safety breaches. The aim was to achieve more consistent penalties, to ensure fines for larger organisations reflected their incomes adequately and to bring it in line with the regime for environmental crime.

In their first six months, the guidelines have resulted in as many penalties of £1m or more as there were in the previous two decades. These new guidelines in effect have a far greater impact on compliance with health and safety law than any single piece of regulation in the past 20 years.

With the guidelines in place, this bring into sharp focus, the requirement to properly manage health and safety and compliance in the workplace and ensure that you and your business do not fall short of health and safety laws.

In the past, some companies may have been reluctant to invest in effective health and safety management, and may have even considered potential fines to be no more expensive than the cost of the investment required to comply. This is no longer the case and establishing strong health and safety processes is key to ensure your business is not caught out.

Let's Discuss The Potential Impact of the Proposed Gross Negligence Manslaughter Sentencing Guidelines...

Further to the ‘new’ health and safety sentencing guidelines that came into force in February 2016, the sentencing council are now consulting on a proposal for the sentencing of offenders convicted of manslaughter in England and Wales.

They propose to get tough – with managers and company directors facing longer jail terms where convicted of gross negligence manslaughter with disregard for employee safety to save money.

Under the draft guideline, the court would have to decide the offence category taking into account:

  • level of culpability
  • harm caused.

Currently, there is a minimum one-year prison sentence but the Sentencing Council is proposing a minimum jail term in the range of one to four years. 

Where evidence shows that the negligent conduct persisted for a long period of time, the proposed jail term is between 6 and 12 years. Furthermore a prison sentence between 10 and 18 years is proposed where an employer had a long standing, utter disregard for the safety of employees and was motivated by financial gain (or avoidance of cost).

The Council intends to bring jail terms for gross negligence manslaughter in line with other types of manslaughter to reflect the seriousness of loss of human life.

Once the consultation process is complete, a final guideline will be published and used by the crown court. It will apply to all offenders aged 18 and over and is likely to result in some significant prison sentences and less suspended sentences.  

What Should a Company Do If They Receive an FFI and the Impact This May Have on Their Business?

Under the Fees For Intervention scheme, if a HSE inspector identifies a ‘material breach’ on your premises you will be charged £129 per hour from the moment the inspector arrives on site to the point when the inspector is satisfied that the issue is resolved or prosecution is taken.

The monthly FFI invoice run is now well over £2m with the average FFI invoice around the £700 mark. The figures reveal a constant increase in fines issued and revenue generated since the introduction of the scheme in 2012.

At Southalls we often find multiple contraventions on the first health and safety visit to a new client so the risks are very real indeed! A key part of the Southalls service is to ensure that you, the client, receives fully competent advice on your health and safety responsibilities and our consultants work with you to find workable solutions to manage risk and protect your stakeholders. Safety Cloud is an invaluable tool used by businesses to ensure essential health and safety matters such as staff training, equipment and fleet maintenance and health surveillance is kept on time and on track meanwhile, accidents are logged ,audit programmes automated and risks assessments are readily available.

At Southalls, we have a history of successfully appealing client FFIs and, combined with our holistic approach of expert consultancy backed up by our innovative safety management software, known as Safety Cloud, many businesses have exceptionally robust systems in place! HSE feedback at client inspections has been phenomenal and long may it continue!

What Advice Would You Give To a Company That Has Suffered a Serious Accident?

In the event of a serious accident in the workplace it is critical that you engage with your health and safety advisors (whether this be in-house or external providers) and also seek legal advice at the earliest opportunity. These legal advisors need to be experts in H&S criminal law and not just no win no fee, personal injury claim solicitors that your insurance company appoint. They need to be experts with significant experience in criminal prosecution as these professionals will understand the enforcers investigative process and be able to guide you forward without damaging knee jerk reactions.

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