In 2017 we saw, as predicted, high fines for large companies that were guilty of health and safety failings due to the courts applying the sentencing guideline introduced in 2016.
The principal focus of the guideline is to ensure fines are ‘sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation’ and there is no doubt that the sharp increase in fines over the last two years is the subject of much discussion in boardrooms up and down the country. A significant number of cases have attracted fines of over £1m, many in non-fatal cases. This is a trend that is likely to increase over the coming months and years. For further information, please click here.
The judgment of the Supreme Court in the case of HSE v Chevron North Sea Limited is eagerly awaited. This case relates to the test to be applied on an appeal against Enforcement Notices served by HSE and Local Authority Inspectors under Sections 22 and 23 HSWA 1974 provisions, which equally apply across the UK.
The case reached the Supreme Court to resolve because there is a direct conflict between the approach of the Scottish and English Courts on the nature of the test to be applied when a Court or Tribunal considers an appeal of a notice. Principally, the Supreme Court will consider whether on appeal, the Tribunal should consider only the information available to the Inspector at the time of serving the enforcement notice, or whether information that has subsequently come to light should be taken into account when considering whether a notice should be cancelled. For further information, click here.
Cyber Risk and Health and Safety
Over the last two years the HSE has referred in its business plans to risks associated with cybersecurity. At present the HSE's thinking appears to be focussed on health and safety risks in the chemicals and major hazards industries, and there is logic to that approach given the potential consequences of a cyber-attack on those types of processes and plant. However, at DAC Beachcroft we take the view that cyber risk will increasingly be a health and safety issue for employers across a much wider range of sectors.
By way of an example, we have been advising a manufacturing client whose equipment was rendered dangerous as the unintended consequence of software incompatibility. We will be publishing further articles this year in order to report on relevant developments in the cyber risk field, to help clients gain awareness of this area of health and safety risk and to understand what they can do in response.
HSE Business Plan for 2017/18
It is important to be aware of the HSE's priorities for 2018 in order to anticipate how they will be regulating your organisation's activities in the near future. The HSE's Business Plan for 2017/18 highlights several key targets which includes leading and engaging with others to improve workplace health and safety. This will look at reducing levels of work-related stress, musculoskeletal disorders and occupational lung diseases, providing new approaches to help SMEs to manage health and safety risks in addition to a targeted programme of approximately 20,000 proactive inspections in 2017/2018. For details of the planned inspections and a broader review of the business plan, please click here.
Duration of HSE Investigations
A long-standing concern of our clients who are subject to investigations by the HSE is the frequent delay in progress of HSE investigations. It is worth noting that the HSE report that they have improved the timeliness of their investigations, with 80% of fatal investigations being completed within 12 months of the HSE assuming primacy (compared to a 2015/2016 average of 70%). The HSE's business plan proposes an improvement for 2017/2018, with 90% of investigations to be completed within 12 months of the incident.
Changes to HSE's FFI Scheme
This year, on 1 September 2017 the HSE launched its new procedure for challenging FFI invoices. They key change under the revised procedure is that if a dispute is raised over an invoice, it will be considered by an independent panel consisting of a lawyer and two others with practical experience of health and safety management. For further information, click here.
Injury and Enforcement Statistics
The HSE released injury statistics for 2016/17 and we have summarised the key headlines for you here. The rate of fatal injuries in the workplace continues to fall and for the first time, stress became the UK's biggest work-related illness, overtaking musculoskeletal disorders. It may be in 2018 we can start to assess whether the significant increase in fine levels following the new sentencing guideline has had an impact on the number serious injuries that occur in the workplace.
The case of SFO v Eurasian Natural Resources Corporation Ltd (ENRC) has brought legal privilege into the spotlight. In this case, the High Court ruled that a number of documents created during an investigation were not (as argued) protected by legal privilege.
In October of this year, ENRC were granted the right to appeal this decision. If the ruling stands it is likely to have serious implications for internal investigations. We give further consideration to this case here.
Reduction in Sentence for Early Guilty Plea
This Definitive Guideline, which came into force on 1 June 2017, sets out the discount that should be given in relation to early guilty pleas, including those for health and safety offences. The Guideline helps to determine what reduction should be given if a guilty plea is not entered at the first available opportunity. We highlight the challenges faced by those prosecuted in health and safety cases which can often make it difficult to know how to plead on the first occasion the case comes to court. We consider the effect of the new guideline here.
The trend of increasing investigations and prosecutions against individuals continued in 2017 and given the consultation on the sentencing guideline for Gross Negligence Manslaughter offences, it looks likely there will be an increase in fine levels for those individuals guilty of this offence. We consider the impact of this in health and safety cases here.
As the Human, Reputational and Financial Consequences of Regulatory matters continue to have the potential to bring your organisation to a grinding halt it is essential that your business works with health and safety lawyers who know how to help you to keep one step ahead of the regulators and invest in understanding your regulatory challenges. At DACB we keep your business abreast of developments, advise on operational regulatory challenges, and support you in times of crisis enabling you to focus on growing a safe and sustainable business. Pick up the phone today to hear more about how we can help you.