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June 8, 2017

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Health & safety fines: missing the human element?

Alarming news pieces highlighting increased health & safety fines and business failings is nothing out of the ordinary. Are we becoming desensitised to such figures? Do we understand the real life impact?

Insurance and risk firm BFM reported 2016 total health and safety fines as £61m, almost two and a half times 2015 totals. This news article dominated the media. However, what this piece (and indeed, so many others we see) fail to acknowledge is the emotional repercussions felt by all involved in the incident, the trial,  and sentencing process –  the individuals who saw their colleagues grievously injured during a typical day at work, and family members who have suffered an unimaginable loss. There is also little documenting how the person standing trial feels; stood in a dock, facing a judge and jury, and potentially bereaved family members.

Since the revised sentencing guidelines came into force in February 2016 there has been a significant rise in individuals receiving an immediate or custodial sentence as the result of health and safety failings.  Between February – October 2016 23 people received an immediate or custodial sentence as the result of such crimes – approximately three people every month.

These figures alone do not take into consideration the total number of people who are forced to walk into a court room, recount failings and defend their businesses.  The total number of prosecuted cases between 2015/6 was 696. This could mean multiple people from one organisation facing a judge and jury – a harrowing process to go through even if there is no personal prosecution at the end.

Section 37: The Facts

Individuals can face prosecution under Section 37 of the Health & Safety at Work Act, outlined by the Health and Safety Executive.

Liability under Section 37:

  • Offence has been committed with the consent or connivance of, and has been attributable to any neglect on the part of the accused, implying knowledge and a decision made on such knowledge
  • That the person accused is a director, manager, secretary or other similar officer ( or person purporting to act in any such capacity) or a member of a body corporate whose affairs are managed by its members

Where Section 37 duty rests:

  • It is clear that liability does not fix on any person because of the name attaching his/her role in the company but because of the authority the individual has within it
  • Evidence is obtained so that the positon of the individual in the management structure can be demonstrated

Considerations in proceedings:

  • Likely to be measure of personal failure
  • Management arrangements – both in practice and as set out in the safety policy
  • Importance of health and safety responsibilities, enabling prosecution to be seen as justified
  • Questions including: did the director/senior manager have effective control over the matter? Knowledge of the circumstances surrounding the event? Did the person fail to take obvious steps to prevent the event? Did they have previous advice/warnings? Was previous advice given to the company? Can responsibility be shared across management?

When sufficient evidence allows it, Section 37 cases can be taken against directors/managers in addition to the company prosecution.  It could also be appropriate to only prosecute the director/manager and not prosecute the body corporate. Individual prosecution with prison sentences and fines is now a more likely outcome – and we can see how much this activity has already increased.

Real Examples

Building firm boss Allan Thomson was found guilty of gross negligence manslaughter and sentenced to six years in prison after a worker fell from the roof and died. Thomson was also banned from holding the position of company director for two years and ordered to pay an additional £55,000 in costs.  In addition, his company Building and Dismantling Contractors Ltd were fined £400,000. When sentencing, Honorable Justice Mark Turner criticised Thomson’s ‘callous and disgraceful’ actions in drawing up illegitimate health and safety documents after the accident to try and prove that the employee had acted incorrectly.

In the same hearing, Michael Smith, boss of Rochdale’s C Smith and Sons and principal contractors in the same project, was jailed for 8 months. Smith was found guilty of failing to ensure the safety of persons not in its employment, failing to ensure work was planned, regulated and monitored without risks to safety considered. He was also fined £90,000.

From the total 23 individuals receiving prison sentences in 2016, 20 were directors of small businesses or sole traders, and three were employees. The role and responsibilities of individual members of an organisation is now under increasing pressure.

Looking to the future

Make sure it is not you who pays the ultimate price and goes through a life altering experience that could have been avoided.  Invest the time in implementing strong health and safety processes where you can ensure everyone that falls within your remit of responsibility is complaint.

A web based e-permits web based system will provide the information you need instantly, enhancing paper based health and safety processes that can often fall short of providing instant management checks on compliance. Although incidents may still occur, they should be much rarer. In the investigation process, the e-permits system will clearly highlight that you did everything practicable and reasonable to reduce risks and protect your workforce.

Make sure you do not change your employee’s lives forever in an incident that better health and safety procedures could have prevented.

For additional information on the Banyard Solutions e-permit system visit banyard solutions.

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Ray
Ray
7 years ago

Bit of slick advertising dressed up as a legitimate article…e-permits are not the only form of health and safety control.