There is no such thing as a “normal” working day to be honest. I could be anywhere in the country or at my desk in Manchester and often my planned “to do” list for the day typically gets amended as the day progresses. If I am in the office I generally like to arrive between 8 and 8.30am and leave around 6pm. By then I am in need of a change of scenery. Once home, I will usually either be on the laptop or some similar device for an hour or two in to the evening. What is normal about most working days is the sheer variety, in terms of the people I get to meet and the work I will be doing and there is always the usual round of meetings and telephone calls to get through. I am also fortunate enough to have a great team of lawyers around me, so seeing them is always a good part of any working day.
Good question! The truthful answer is my former boss. When I was a trainee solicitor my first seat was in the Property department. It was 1995 and CDM 1994 had not long been in force. A litigation partner was beginning to realise that health and safety regulation was growing in significance and provided a lunch time training session for the property lawyers. His enthusiasm and charisma in telling us all about CDM was infectious and I decided there and then that health and safety was what I wanted to do. Two years on in 1997 I had managed to secure my final seat as a trainee in his team but there was no job when I came to qualify. As the litigation partner was beginning to develop a criminal / regulatory practice in health and safety and seeing my passion and enthusiasm for the subject, I was lucky enough that a job was created for me. The same partner supported me in joining the local branch of IOSH and studying for the NEBOSH diploma. So one man and CDM 1994 is the reason I have been a health and safety lawyer now for nearly 20 years.
Proportionality is a very subjective thing in my opinion and at step 3 in the Guidelines it allows the judge to step back and adjust the fine up or down in order to ensure the overall fine is likely to have a real economic impact, which brings home the message to stakeholders (management and shareholders) that complying with health and safety law makes good business sense. It also pops up again in step 8, if the court has been asked to sentence offenders for more than one offence. What I do think is that the fines we have seen since February of between £1m and £4m for large and very large companies is likely to only be the tip of the ice-berg. These are significant and substantial fines but the Guidelines provide for and therefore courts must have regard to imposing even higher fines than these. Proportionality may therefore dictate that fines could get even higher in the future.
As for whether these fines act as a deterrent, I don’t honestly think they do generally. Many of the clients I work with already understand that proper risk management around compliance and instilling a positive safety culture makes sound economic sense. That said, we have also seen fines for medium sized companies for non–fatal and even non-injury offences of 6 figures. These may cause some businesses to wake up and appreciate more the need to properly invest in health and safety as well as seeking and acting on competent health and safety advice.
Tragic sums it up nicely. I have acted for corporates and individuals following a fatality and leaving aside the potential fines for a moment, the personal toll such events has on individuals is enormous. You may be the subject of investigation yourself or simply part of the management team dealing with the fall-out. Both bring intense personal and emotional pressures which can subsist over a long time, typically several years. Avoiding being in that situation personally is a big lesson for executives to learn. Some other lessons are:
I never felt there was much need for deregulation within health and safety and we haven’t really seen that much substantive change, other than tinkering around the edges and the removal of some out of date or more obscure industry specific regulations. The change of approach to Approved Codes of Practice has been more significant as I think businesses generally found them helpful in knowing what was expected of them when it came to compliance.
The UK is seen as the “gold standard” in health and safety matters, with the Health and Safety Executive generally agreed to be an effective regulator, whose expertise is sought overseas. The foundation of Britain’s regulatory regime in health and safety, the Health and Safety at Work etc Act 1974, is derived wholly from within the UK (as are other significant pieces of legislation, including the Corporate Manslaughter and Corporate Homicide Act 2007). EU legislation has had an impact, of course, with many directives (negotiated by the HSE on behalf of the British government and binding in their entirety on member states which are obliged to transpose them into national laws) adding to the perceived regulatory burden in this area. Despite one of the cornerstones of the “Leave ” campaign being a desire to be free of the “business stifling” regulations emanating from the EU, particularly in regulatory matters, however, workers and their representatives have come to expect certain standards and it is difficult to envisage agreement to settle for less protection, whatever the model of relationship finally agreed upon with the EU. The landscape may have changed and the future may be in some doubt, but in health and safety matters, at least, it is difficult to see that there will be drastic change especially if the country remains in EFTA and the EEA. In the longer term, health and safety regulations in the UK will undoubtedly be examined and a decision taken on which remain socially or economically useful to the UK, potentially leading to changes to some regulations and the stripping away of others. There may also be changes to the Working Time Directive and to human rights, but again, political and social will may not be for wholesale change here either.
I’m not going to spoil the surprise! To be honest, I am not expecting any “key” changes in legislation in terms of the substantive law at least. Sentencing of organisations and individuals though is definitely something to keep an eye on, especially if fines are appealed to the Court of Appeal.
