Health safety law employers duties and liabilities
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Health & Safety Law Employers duties and liabilities. Jonathan Cripwell, Partner. Overview. Core duties / risk management / risk assessment Accident investigation – practical issues for employers Enforcement options Co extensive legal duties Criminal Civil. Core duties on Employer.

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Health & Safety Law Employers duties and liabilities

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Health safety law employers duties and liabilities

Health & Safety LawEmployers duties and liabilities

Jonathan Cripwell, Partner


Overview

Overview

  • Core duties / risk management / risk assessment

  • Accident investigation – practical issues for employers

  • Enforcement options

  • Co extensive legal duties

    Criminal

    Civil


Core duties on employer

Core duties on Employer

  • Common law duty to take reasonable steps to avoid foreseeable risks to employees

    • Provide safe place of work

    • Provide safe systems of work

    • Provide safe plant and equipment

    • Provide competent staff


Core duties on employers

Core duties on Employers

Health and Safety legislation

  • Statutory duties imposed upon employers through primary legislation

    Health and Safety at Work Act 1974

  • Secondary legislation through Regulations

    Management of Health and Safety at Work Regulations 1999


Risk management

Risk management

Why is it necessary?

  • To comply with core duties

  • To control health and safety risks in your business and help prevent accidents and ill health

  • Integral part of the business and its success


Risk management1

Risk management

What is it?

  • Process of assessing risks that arise in the workplace

  • Putting in place sensible measures to control identified risk

  • Implementation, monitoring and review of those measures


Risk assessment

Risk Assessment

  • Identify the hazards

  • Decide who might be harmed and how

  • Evaluate the risks and decide on precautions

  • Record your findings and implement them

  • Review your risk assessment


Risk assessment1

Risk Assessment

  • Engage all employees in the process - from management to shop floor

  • Check that what you say you do happens in practice

  • Ensure employees have the right training

  • Ensure plant and equipment is properly used and maintained

  • Is there evidence of compliance with Health & Safety law


Accident investigation

Accident Investigation

  • Criminal liability

    Sanction is punishment for breach of the criminal law

  • Civil liability - law of negligence / statutory duties.

    Sanction is compensatory - damages for injury/loss


Accident investigation1

Accident Investigation

The Enforcement Authorities (criminal liability)

  • Health & Safety Executive

  • Local Authority

  • Crown Prosecution Service


Accident investigation2

Accident Investigation

Powers of Inspectors

  • Enter premises

  • Direct work areas to be undisturbed during investigation

  • Examine and investigate as necessary

  • Require production of documents

  • Disable dangerous plant


Accident investigation3

Accident Investigation

Require persons to provide information/ answer questions

  • S9 Criminal Justice Act (voluntary witness statement)

  • S 20 H&SWA (compelled witness statement)

  • Interview under PACE (suspects)


Accident investigation4

Accident Investigation

Pitfalls in practice

  • Interviews under caution (suspect - senior management)

  • RIDDOR forms

  • Disclosure to HSE of potentially privileged documents

  • Must be in a position to demonstrate evidence of safety management systems/policies/risk assessments/training records


Enforcement options

Enforcement options

  • No formal action

  • Simple Caution

  • Improvement Notice

  • Prohibition Notice

  • Prosecute


Criminal liability who gets charged

Criminal Liability – who gets charged?

  • Health & safety offences can be committed by a company, its directors and managers personally

  • Prosecution of individuals – consideration is given to the management chain and to fix criminal liability upon those who are in the position of authority and who have the power to decided corporate policy and strategy.


Criminal liability statutory framework

Criminal Liability – Statutory framework

Health and Safety at Work Act 1974

  • S2 - Duty of every employer to ensure ,so far as is reasonably practicable, the health, safety and welfare at work of all his employees

  • S3 – Duty of every employer to conduct undertaking to ensure, so far as is reasonably practicable that persons not in his employment are not exposed to risks to their health or safety (subcontractors/public)


Criminal liability statutory framework1

Criminal liability – Statutory framework

Health and Safety at Work Act 1974

  • S37 – Offences by bodies corporate

    Imposes personal liability where an offence by a company is committed with the consent and connivance of, or to have been attributable to neglect on the part of any director, manager, secretary or other similar officer he as well as the company shall be guilty of that offence


Criminal liability statutory framework2

Criminal liability – Statutory framework

  • Test for neglect – whether or not the Defendant ought to have been aware that a particular practice occurred – not whether or not he actually knew.

  • Consent and connivance - imply both knowledge and a decision made on such knowledge – (turning a blind eye)


Criminal liability statutory framework3

Criminal liability – Statutory framework

Breach of specific Health & Safety Regulations;

  • Management of Health and Safety at work Regulations 1999

  • Provision and Use of Work Equipment Regulations 1998

  • CDM Regulations 2007

  • Work at Height Regulations 2005


Sentencing

Sentencing

  • Fines should reflect the gravity of the offence and the means of the Defendant

  • In assessing the gravity of the breach consider how far short of the appropriate standard the Defendant fell


Sentencing1

Sentencing

Aggravating factors

  • Safety compromised for profit

  • Failure to respond to warnings

  • Whether death or serious injury has occurred


Sentencing2

Sentencing

Mitigating factors

  • Prompt admission of responsibility

  • Co operation with enforcement authority

  • Steps to remedy deficiencies

  • No previous convictions


Sentencing3

Sentencing

Health and Safety (Offences) Act 2008

  • Fine – £20,000 for each offence in the Magistrates Court, unlimited fine in the Crown Court;

  • Imprisonment

    Up to 12 months Magistrates Court

    Up to 2 years in Crown Court

  • Investigation costs

  • Director disqualification if convicted of an indictable offence in connection with the promotion, formation or management of a company (The Company Directors Disqualification Act 1986)


Corporate manslaughter

Corporate Manslaughter

Pre 6 April 2008

Gross negligence manslaughter

  • Difficult to successfully prosecute large companies – only 6 convictions between 1992 -2005 mainly of small owner managed companies.

  • Conviction required ‘directing mind’ of organisation to be identified with requisite culpability (a senior individual who embodied the company in his actions)

  • Herald of Free Enterprise in 1987 to rail disasters at Hatfield and Potters Bar failed to lead to successful convictions despite clear indications of safety management shortcomings


Corporate manslaughter1

Corporate Manslaughter

Corporate Manslaughter and Corporate Homicide Act 2007

Act - applies to

  • Companies

  • Trades Unions and employers associations if employer

  • Public bodies – local authorities,NHS bodies

  • LLP’s

  • Partnership’s

  • Government departments

  • Police forces


Corporate manslaughter2

Corporate Manslaughter

The position of individuals

  • Offence concerns corporate liability of organisations not individuals

  • Prosecution is against the organisation itself not directors, senior managers or other individuals


Corporate manslaughter3

Corporate Manslaughter

New offence

  • Does not impose any new duties – all existing duties under the civil law to ensure safe systems of work, safe plant and machinery, safe workplaces, and that processes for managing health & safety are adequate, remain unaltered

  • Removes the obstacle of the ‘directing mind’ principle


Corporate manslaughter4

Corporate Manslaughter

Company guilty of corporate manslaughter if:-

  • The way in which its activities are managed or organised

  • Amounts to a gross breach of a relevant duty of care owed to deceased and

  • Causes a person’s death; and

    (2) The way in which its activities are managed or organised by its senior management is a substantial element in the breach


Corporate manslaughter5

Corporate Manslaughter

Two stage approach

1) Must owe a duty of care to deceased

  • As employer

  • Occupier of premises

  • Supplier of goods /services; carrying out of construction or maintenance; carrying out of any other activity on a commercial basis; use or keeping of plant / vehicles

  • Breach of duty must be gross – conduct far below what can reasonably be expected of the organisation in the circumstances

  • Jury must consider failure to comply with H&S legislation; seriousness of failure and risk of death that failure posed


Corporate manslaughter6

Corporate Manslaughter

2) Senior managers

  • A substantial part of the failure must have been at a senior level

  • Senior level means the people who make significant decisions about the organisation

  • Links into the importance the Act places upon a ‘safety culture’ within the organisation

  • Act focuses on systems of work and away from individual fault


Corporate manslaughter7

Corporate Manslaughter

Sentencing

  • Unlimited fine

  • Publicity Order – organisation must publicise the fact of conviction

  • Remedial Order – requiring organisation to address the cause of the fatal injury

  • Prosecution costs


Civil liability

Civil liability

  • Core duties

    Common law duty of care in negligence

    Statutory duties under Regulations

    Breach of which gives rise to a claim in damages.


Civil claims for damages

Civil claims for damages

  • Letter before action under the Personal Injury Protocol

  • Matter referred to employers liability insurer

  • Investigation into liability

  • Settlement?


Civil claims for damages litigation

Civil claims for damages – Litigation

  • Statements of Claim and Defence

  • Disclosure

  • Witness Statements

  • Expert Evidence

  • Trial

  • Assessment of damages


Denison till solicitors

Denison Till solicitors

  • A leading Yorkshire-based law firm, with UK and international clients

  • Eight specialist departments comprising: corporate and commercial, commercial property, employment, dispute resolution, construction, ecclesiastical, family and wills & trusts

  • Accredited by Law Society, Investors in People and legal directories Legal 500 and Chambers & Partners

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