Health & safety
The law relating to Health & Safety in England and Wales is complex.
In addition to primary legislation such as the Health & Safety at Work etc. Act 1974 (HSWA), there is a wide range of subsidiary legislation in the form of Regulations, often derived from EU Directives, which all businesses must have regard to.
Primary responsibility for enforcing Health & Safety law rests with the Health & Safety Executive and with Local Authorities. There are occasion however where other Regulators may take the lead in investigating whether an offence under Health & Safety legislation has been committed. For example, since 1st April 2015 a Memorandum of Understanding has been in place which applies to Health & Adult Social Care in England which means that the Care Quality Commission deal with Health & Safety incidents in the Health & Adult Social Care Sectors.
In cases where there is a work related death a Protocol is in place which sets out guiding principles as to how investigations into such deaths should be undertaken, particularly in circumstances where criminal proceedings arising from gross negligent manslaughter and corporate manslaughter may ensue.
The HSWA sets out the general duty owed by employers to employees (Section 2). It also sets out the duty owed by employers and the self-employed to non-employees (Section 3). A further duty arises out of the control of premises (Section 4).
A breach of the duties imposed by HSWA and Regulations constitute a criminal offence which could result in a range of enforcement action, including prosecution. Section 33 of the HSWA identifies the key offences.
Since the 1st October 2012 the HSE have been entitled to recover investigation costs from duty holders found to have been in “material breach” of Health & Safety legislation. This is known as a fee for intervention (FFI).
A material breach is when, in the opinion of an HSE Inspector, there is or has been a contravention of Health & Safety law that requires them to issue notice in writing of that opinion to the duty holder that they have inspected.
FFI charges can be significant (a fixed hourly rate of £124 is applied) and is payable in addition to any fine imposed by the Courts in cases of a prosecution as well as the costs of the prosecution itself.
If, having undertaken an investigation, the HSE or a Local Authority considers that there has been a breach of Health & Safety law, a range of enforcement options are available.
- Serving Notices on duty holders;
- Withdrawing approvals;
- Varying Licences, conditions or exemptions;
- Issuing simple cautions;
- Providing information or advice; &
The Sentencing Council have issued definitive guidelines to assist the Courts in relation to the sentencing of those convicted of a Health & Safety offence which came into force on 1st February 2016. Previously, the cap imposed on Magistrates Courts when determining fines had been removed in relation to offences committed on or after the 12th March 2015.
The guidance is clear in its instruction to the Judiciary:
The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with Health & Safety Legislation.
The intention behind these guidelines is clear. Both organisations and individuals which fail to ensure that the Health & Safety procedures are robust and who commit an offence are likely to suffer both reputational and financial harm when they come before the Courts. As the guidance makes plain, whether “the fine will have the effect of putting the offender out of business will be relevant; in some bad cases this may be an acceptable consequence".
In addition to the risk of imprisonment or a substantial financial penalty, a breach of Health & Safety law could result in disqualification proceedings being brought under the Company Directors Disqualification Act 1986.
The guidance also applies to cases involving corporate manslaughter and to food and hygiene offences.
We have a wealth of expertise in advising clients in relation to all aspects of Health & Safety law. We have represented clients who have received Notices from the HSE and have also advised on how best to respond to interviews under caution as well as representing clients in the Criminal Courts.
If we can assist you in any way, or if you simply want to discuss a regulatory issue, please contact us at any time.