Jonathan Farry, Associate at Plexus Law, looks at how firms need to address their risk management procedures and health and safety policies to prevent individuals from being at the centre of claims.
Whilst the majority of prosecutions under the Health and Safety at Work Act 1974 (HSWA) are brought against corporate entities and businesses, there has been a noticeable trend in the increase in individuals being prosecuted under HSWA by the HSE and Local Authorities. This development places individuals, often those who occupy senior positions in businesses, facing the possibility of being imposed with significant fines and possibly even facing imprisonment in the most serious of cases. As the conviction rate in 2020/2021 was 93%, such individuals are left in no doubt of the potential personal implications that health and safety prosecutions can have.
The Health and Safety Executive’s (HSE) Enforcement Policy Statement requires inspectors to identify and prosecute, or recommend the prosecution of, individuals – if they consider that prosecution is warranted and that there is a realistic prospect of conviction. The usual approach is that prosecution of an individual is deemed to be warranted where there have been personal acts/failings by an individual, and it would be proportionate to prosecute, bearing in mind the nature and extent of the breach and the risk to health and safety arising from it. The Enforcement Policy Statement outlines that enforcement action should be focused on those who are responsible for the risk and are best placed to control it. The potential outcome for individuals, if breaches are determined, include disqualification, fines and potentially custodial sentences.
Upturn in severity
The introduction of the Sentencing Guidelines for Health and Safety and Corporate Manslaughter offences, which came into force on 1 February 2016, has directly led to a substantial upturn in the severity of fines and penalties for both business and individuals. The inflationary pressures created by the significant increase in the level of fines can be substantial if a prosecution is pursued as any eventual fine imposed is not covered by insurance policies.
In the event of a prosecution, even where an early guilty plea is entered, thus securing a discount of up to one third, prosecution costs remain a significant burden which individuals and businesses naturally wish to avoid.
Furthermore, Fees for Intervention (FFI’s) are charged by authorities to investigate potential breaches and to subsequently take enforcement action, if deemed necessary. The current charging rate is £163 per hour and any fees must be paid within 30 days.
Health and safety law
Under Section 7 of the Health and Safety at Work Act (HSWA) 1974, employees have a duty to take reasonable care for the health and safety of themselves and others who may be affected by their acts or omissions whilst at work. In situations where the employer appears primarily responsible for the circumstances giving rise to a potential prosecution, it is usually the case that any action taken (and any civil claim) will be against the employer and not on an individual basis. However, where it can be evidenced that the employer has taken all reasonably practicable steps to ensure compliance, then the authorities can consider extending the scope of their investigation against an employee – if it is deemed to be in the public interest. Matters which the authorities consider include whether employees followed the dedicated systems of work, whether any previous warnings had been issued to the employee and whether the offence (by the employee) created an obvious risk.
Section 36 of the HSWA is important to consider as where the commission of an offence under the relevant statutory provisions by any person is due to the act or default of some other person, that other person is also liable to be prosecuted for the offence, whether or not the principal is proceeded against.
Proceedings under Section 37 of HSWA will require proof that an offence has been committed under any of the relevant statutory provisions by a body corporate, that the offence has been committed with the consent or connivance of, or has been attributable to, any neglect on the part of the accused and that the person accused is a Director, Manager, Secretary or other similar officer or a person purporting to act in any such capacity, or a member of a body corporate whose affairs are managed by its members. Consent and connivance imply both knowledge and a decision made by such individuals on the knowledge that they have gained. Whilst any potential breach by a business is likely to be associated with failings on the part of certain individuals, the authorities are only likely to pursue an individual prosecution if they see similar evidence of individual neglect and reckless disregard of health and safety requirements to that attributed to the company, perhaps motivated by cost-cutting. A material factor in determining individual liability is an assessment of who has a primary role in the implementation of health and safety procedures/policies.
Fatalities
In the tragic event of a fatality, an individual can be prosecuted and convicted of gross negligence manslaughter which carries a potential life sentence. There are two different types of Corporate Manslaughter prosecutions that can be pursued by the Police/Crown Prosecution Service, namely prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007. These are prosecutions solely against the corporate entity itself or Gross Negligence Manslaughter at common law against individuals. This deals with prosecutions for gross negligence by Directors, Officers and employees that cause another person’s death. If a prosecution for gross negligence manslaughter is intimated an individual may need to obtain separate legal representation so as to avoid a potential conflict of interest.
The above implications for businesses and individuals, taking into account the reputational and commercial detriment that a prosecution would bring, has undoubtedly focused corporate minds. There is an appreciation of the need for compliance with health and safety legislation, through a dedicated focus on comprehensive risk management. A positive response to regulatory investigations and the presentation of detailed risk management improvements via written submissions can, in some cases, help persuade authorities to exercise positive discretion and elect not to prosecute despite obvious material breaches.
The risk areas that businesses/individuals need to focus on in order to successfully discharge their statutory duties include;
The importance of proactive risk management
There is a direct correlation between proactive risk management and avoiding prosecutions, reducing penalties/costs and reducing the likelihood of individual culpability. Each business is different and each carries their own risks which need to be appropriately managed. The focus for organisations and individuals will be continue ensuring that safety management remains of paramount importance, conducting regular reviews of management policies, identifying necessary changes to adapt with changing practices and pinpointing areas of possible improvement. Other steps that can be taken include frequent refresher training, conducting audits, preparing robust written documentation to display good practices, responding to near misses and learning lessons from historical incidents to try and minimise the chances of recurrence.
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Nothing new here as, with data driven Predictive Risk Analysis, Frequency & Severity driving more “Precise Risk Treatment” inevitable that “strict liability” will be enforced.
Just curious how long it will take the no-win no-fee boys to move on from deafness to “visual repetitive stress injuries” already admitted by HSE in 2007 RR561 using the retrospective Appeal Court findings in 2011 Baker v Quantum Clothing & Ors