legal update 2019 - london health and safety group · 2019. 4. 8. · committed 12 food hygiene...
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London Health & Safety Group
Legal Update 2019
Kizzy Augustin, Russell Cooke LLP
8 April 2019
Agenda
Brexit and H&S – who cares?
Where are we with the 2016 Sentencing Guidelines?
3 years on……sector focused prosecutions
Other changes in H&S for 2019?
Food allergens – info for food safety businesses
Mental Health & Wellbeing – should physical and
mental health be treated the same?
H&S and Social Media?
RIDDOR Changes
Brexit and H&S?
Brex-hausted much?
Summary of current status – DEAL or NO-DEAL?
HSE’s position:
Obligations and duties to protect the health and
safety of people will not change
Minor amends made to regulations to remove EU
references – legal requirements stay the same
Approach to regulation is to preserve UK’s high
standards in H&S / protect people & environment
Legislation that may be affected……
Regulation of chemicals (in the event of ‘no deal’):
Biocides, CLP, PIC, PPP, REACH
Explosives
Equipment and machinery
Generally UK will establish a stand alone chemicals/ explosives regime.
The role of standards in the regulatory framework for manufactured goods will not change when we leave the EU.
The current EU ‘harmonised standards’ will be carried across as UK ‘designated standards’ to maintain a single standards model between the UK and the EU.
Corporate H&S Duties
Duty to “ensure” the health
safety and welfare of
employees
Duty to “ensure” the health
and safety of non-employees
Duty of person who has, to any
extent, control of premises to
ensure premises, access and
egress from premises and any
plant or substance is safe and
without risks to health
“So far as is reasonably
practicable”
Section 2
Duty to
employees
Duty to
non-
employees
Section 3
Section 4
Duty of
controller of
premises
Individual H&S Duties Duty to take reasonable care
of self and others affected
by work (s.7)
Where an offence… has been
committed with the consent,
connivance, or…attributable to
any neglect on the part of any director,
manager… or a person who purports to
act in that capacity, he/she as well as the
company shall be guilty of that offence (s.37)
Duty of
employees
Section 7
Section 37
Liability of
directors and
senior managers
Where are we with the Sentencing Guidelines
2016?
Definitive guidelines
implemented since 1 Feb
2016
Impact of the guidelines over
the last 3 years?
Proposed changes
Impact Assessment of the Guidelines
Fines increased for large (anticipated) and small (not
anticipated) organisations
HSE Impact Assessment cont…
• Individuals – unanticipated increase in higher fines and short term change of use in some disposal types
• What about food safety and corporate manslaughter? • Food Safety & Hygiene offences: less pronounced increase in fines • CM offences – increase in fines, but low volume of prosecutions…..
Culpability
Level of culpability extremely important
Categories of harm
Establish Harm category from Matrix
Starting Point / Range of Fines
Large Organisations
Range of Fines cont…..
Medium Organisations
Corporate Manslaughter
Top 5 Fines – so far!! Company Fine Fatal/Non- fatal
Merlin Attractions £5million Non-fatal but significant injuries
Tesco Stores Ltd £5million Non-fatal and no injuries
Network Rail £4million Fatal
ConocoPhillips £3 million Non- fatal – no injuries
Cristal Pigment UK Limited £3 million Fatal
(*Pre Guidelines) Network Rail, Hatfield and Ladbroke Grove disasters
All c. £3 million Multiple fatalities, “very high culpability”
Capstone Building Limited (March 2019)
Building firm fined after death of employee following
wall collapse
Bricklayer employed by Capstone working on
construction site – struck by falling masonry after a
retaining wall failed while being back filled with concrete
Failure to appropriately manage work on site / failure to
ensure health and safety of employees and non-
employees
Breach of sections 2 and 3 HSWA – NG plea
Found G after a trial - £900,000 fine and £60k costs
Karro Foods Limited (March 2019)
Two workers from food manufacturing company
suffered injuries after falling 4m through rooflight
13 April 2016: workers investigating a roof leak - both
stood on the same rooflight and fell through
Injuries – one suffered fractured ribs, punctured lung
and contusions to right thigh; other suffered fractured
skull and injuries to right leg and ear (balance issues)
HSE concluded rooflights not visible because of dirt and
moss build-up / employees not informed about location
G plea to section 2 HSWA breach – fined £1.8m and
£8k costs
M&D’s Theme Park (March 2019)
June 2016 - Motherwell theme park ride derailed at 40mph, injuring 9 people (including 7 children)
5 gondolas plunged 30ft to the ground
Breaches of HSWA – failed to ensure rollercoaster was maintained, in efficient working order and good repair
Business owned by 2 brothers for over 50 years
G plea – owner mentioned co-operation with authorities, daily safety checks and annual independent inspections (safety inspector had passed the ride as ‘safe’ 16 days before)
Fined £65k (credit for G plea)
Scots vs English courts/compare to Merlin Entertainments
Oxleas NHS Foundation Trust (Dec 2018)
Patient of secure forensic unit gained access to kitchen
and stabbed 2 healthcare workers / obtained lighter and
started a fire
HSE found that the Trust had failed to assess the risks /
failed to take straightforward preventative steps:
No specific risk assessments (high risk patients)
No proper training in search techniques
Previous incidents / patient’s own history
G plea to 2 breaches of HSWA – fined £300k and £28k
costs
Harvey’s Chicken & Pizza (April 2018)
Owner / Manager of takeaway alleged to have
committed 12 food hygiene offences, including:
Poor cleanliness
Poor maintenance of premises
Sale of unfit and rotten food (meat and poultry)
EHO’s from Fylde Council worked with Mr Ahmed to
improve conditions, but had to issue Hygiene
Emergency Prohibition Notice to protect public health
G plea – given 6 month custodial sentence
NPS London Limited (Feb 2019)
Clarity on sentencing linked organisation in H&S case:
NPS London – “small organisation”, but is a JV company partly owned by NPS parent co (“large organisation”)
July 2017: fined £370k for breach of section 3 HSWA
C of A – should be classed as ‘small’ – relevant turnover is that of offending organisation
But…perfectly proper to have regard to wider finances of a linked organisation. Low profitability of NPS London not of itself a reason to reduce fine
Full credit for G plea – fine reduced to £50k
Squibb Group Limited (Feb 2019)
Tried to overturn conviction – failed, but succeeded in reducing ‘manifestly excessive’ fine
Originally found G of section 2 but not section 3 breach
Squibb suggested both employees and non employees should be treated the same
C of A – could conclude risk of harm is greater for employees, but sentence should be reduced:
High culpability but likelihood of harm should accord with assessment of expert (low likelihood)
Fine reduced from £400k to £190k
Importance of proper assessment of likelihood of harm in relation to risk / expert evidence can be helpful
Proposed changes – enhanced explanations
Proposal for judges and magistrates to consider additional
contextual information when weighing up aggravating and
mitigating factors
Reflect current best practice
Most significant for aggravating factors – cost cutting at the
expense of safety (increase seriousness, indicate higher level of
culpability)
E.g. failing to disclose matters to an authority, failure to obtain
relevant licence or permission
Most significant for mitigating factors – high level of cooperation
with investigation beyond the expected
E.g. self-reporting
Consultation closes on 23 May 2019
What does it all mean?
Significant increase in fines for large and small organisations / ‘focus on ‘sector’ or ‘industry’
More individuals are likely to receive custodial sentences
Likely that ‘offending organisation’s’ turnover will be taken into account
What’s important?
Culture, Leadership from the top - Board level briefings & training
Incident Response Protocol – RIDDOR, Internal Investigation, response to FFI, response to section 20 interviews, interviews under caution, Enforcement Notices – post incident “legal” protective measures
The extent to which failures were systemic v. isolated
Safety management systems in place, robust and properly invested in
Role played by senior management and directors (pre and post-incident)
Other changes in H&S for
2019?
Food allergens – Pret a Manger
Pret a Manger – 15 year old went into cardiac arrest on a flight after buying sandwich at Heathrow Airport in 2016
Contained sesame – one of 14 allergens that consumers must be informed about as an ingredient
Current requirements: Food Regulations 2014 – allows freshly handmade, non pre-packaged food not to be individually labelled
At the time of incident, Pret had signs in fridge / at tills telling consumers with allergies to speak to manager
Will now list all ingredients (including allergens) on freshly made products and pre-packaged products
Mental Wellbeing: Physical vs Mental
Focus on physical health / physical injury – what about
occupational health / risk?
Karl Simons (Thames Water): “we all have mental
health…the same way we all have physical health”
HSE’s updated first aid guidance – companies to
consider ways to manage mental ill health
MHFA called for changes to H&S legislation to put
mental and physical first aid on equal footing
H&S Sentencing Guidelines – all about ‘risk’
H&S and Social Media – duty of care?
Molly Russell – death of 14 year old, whose father is
convinced she was driven to suicide in Nov 2017 by
material on Pinterest and Instagram
Papyrus (charity working to prevent suicide) – talking
to families who believe social media has part to play
Self regulation: most tech firms will deny harmful
content – if proved, they promise to remove it as a
platform for the content, not publisher.
Proposal to consider imposing a legally enforceable
duty of care on internet ‘giants’ – distressing material to
be reported to independent regulator.
RIDDOR 2013 review
HSE carried out post implementation review of RIDDOR
Emphasis on work related health as well as safety – list of reportable occupational diseases to be expanded
RIDDOR 2013 requires employers and others in control of work premises to report and keep records in respect of certain work related accidents:
2013 modifications made list of reportable incidents simpler and shorter
Review: some occupational diseases no longer needed to be reported – recommendation to expand list for occupational incidents / narrow list for non-workers
Questions?
Contact details
Kizzy Augustin, Partner
T: +44 (0) 20 3826 7302