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May 17, 2011

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SHE11 – No ‘get out of jail free’ cards for individuals under H&S law

Prosecutions of individuals under sections 7, 36 and 37 of the Health and Safety at Work, etc. Act are going up – proof that enforcement attitudes are definitely hardening.

This was the warning solicitor-advocate with Eversheds, Paul Verrico, had for delegates at the packed SHP Legal Arena this morning. Or, more specifically, for the senior managers in their organisations, as it is mainly they who are in the firing line when it comes to individual liability for health and safety offences.

Directors and senior managers are still woefully unappreciative of just how important it is for them to take health and safety seriously. At the Eversheds summer school last year, Paul said delegates regularly told him things like “directors want answers, not problems”, and “they are only interested after something has gone wrong, not before”.

Set this in the context of the recent revelation to Parliament by the HSE that it was successful in 95 per cent of the prosecutions it took, and that since the introduction of the Health and Safety (Offences) Act last year, there is now the possibility of imprisonment for breaches of sections 7, 36 and 37, and it emphasises just how blinkered this approach by directors is.

Paul cited a number of well-known cases in which individuals were convicted under health and safety law – for example, Gillian Beckingham of Barrow Borough Council, over an outbreak of Legionnaires’ disease, and, more recently, health and safety manager Phillip Dutton – which, he said, showed a distinct lack of leniency on behalf of  the prosecution (i.e. the HSE) and thus should act as a warning to everyone.

Turning to section 36, Paul admitted that successful prosecutions under it are fairly rare. The most recent case he defended involved a factory worker whose hand was amputated when he put it into an unguarded machine. The company pleaded guilty under section 2(1) of the HSWA but on the basis of systemic failure. The HSE then discovered that the company’s production manager had actually had a conversation with the employee and his supervisor 10 days before the incident, when he told them the guard should not have been removed and asked them to put it back.

“The crucial thing is,” said Paul, “that he didn’t follow this up, and this was the basis of the prosecution’s case against him under section 36. However, our defence was that this section says the failure must be that individual’s fault. As the company had already pleaded guilty on a systemic basis, the production manager was found not guilty.”

Consequently, Paul explained, the HSE is more keen to prosecute under section 37, under which consent, connivance, or neglect must be proved – generally, against those people in an organisation who exert a degree of control. “The HSE is not really interested in underlings,” he said.

While consent and connivance are reasonably straightforward, neglect is often less easy to prove. Said Paul: “Those in control of a company should know what they should know. They should have processes and protocols in place, and these should be regularly reviewed. Neglect can be not knowing what is in the filing cabinet and not knowing that it has been done.”

But, he conceded, the difficulty for health and safety practitioners is how to make the people responsible in their organisations realise that “all of this is out there”. The new offence of corporate manslaughter is certainly focusing minds, he said, particularly when the managing director at the centre of the first case to be taken under the new Act (against Cotswold Geotechnical Holdings Ltd) wasn’t actually convicted of any offence personally, but was still told by the prosecutor in the case, in his summing up, that he would “die in shame and sorrow” as a result of the case.

Then there are the six managers of German firm Thyssen Krupp’s Italian operation, who were recently jailed for periods of between 10 and 16 years, for deliberate safety failings at a plant in Turin.

Said Paul: “The CEO of that company got 16 years in jail, but he didn’t start the fire that killed seven workers. I have never represented anybody who I think is a wicked human being. Normally, it is a momentary lapse – something goes wrong on one day and their life is in tatters. But there is an appetite to find someone to blame when something goes wrong.”

Summing up what the board needs to know in order to avoid being blamed, Paul said: “They need to know what could go wrong, ask why it won’t happen today or tomorrow, know what else they could and should be doing to ensure it doesn’t happen, constantly enquire about how the company is improving, and be sure that the safety management systems are working as they should.”

Check out a video clip from Paul’s seminar below:

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