The Health and Morals of Apprentices Act 1802 sought to protect apprentices in cotton and wool mills. The Factories Act of 1833 focused on protecting the child workforce in textile factories. And more recently, the Health and Safety at Work, etc Act 1974 (HSWA) laid down wide-ranging duties on employers.
A downward trend in fatalities
As Claire Burrows, director in the Regulatory & Compliance Team at Walker Morris, points out, the introduction of the HSWA, followed by various other regulations that dealt with specific risks, resulted in a consistent downward trend in the rate of fatal accidents at work until 1999. But since then, she says that “the rate of fatal injuries has remained relatively static and the Health & Safety Executive (HSE) reported that in 2019/2020, 111 workers were killed at work and 92 members of the public were killed due to work related activities”.
Of course, there is such a thing as an accident, but in 2016 came the Definitive Guideline on the sentencing of health and safety offences which sent a very clear message about the penalties for ignoring the law.
The guidelines, Burrows says, offer general principles a judge should follow when setting a fine: “The fine must reflect the seriousness of the offence... The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence...”
As Burrows explains, “this approach has seen a significant increase in the fines issued in health and safety convictions which now frequently exceed the million-pound mark.” Consider the largest fine ever issued, in 2020, to Leadec Limited, a specialist industrial services company, of £2m plus £30,000 in costs after a worker suffered a fatal injury while cleaning waste-water pipes.
The main principles
Current principal health and safety requirements are set out in the HSWA and the Management of Health and Safety at Work Regulations 1999. Burrows outlines them: “The law requires all employers to ensure, so far as reasonably practicable, the health, safety and welfare at work of all employees.” She adds that a similar duty extends to non-employees, such as members of the public, external contractors or visitors, who may be affected by the work activities of an organisation.
For Paul Verrico, a partner and solicitor-advocate in the Environment, Health and Safety team at Eversheds Sutherland, it’s interesting that, “many hope to find a set of rules and regulations that specify exactly what needs to be done in every circumstance. The reality is of course somewhat different.”
He too cites the need for employers to do ‘all that is reasonably practicable’ within regulatory constraints. And central to this is organisations having access to sufficient expertise to make sure that employees are kept safe. “For a large company that might mean employing a health and safety manager; for a small printer that could involve getting a competent consultant to assist on issues as diverse as a guarding audit or advising on chemical exposure to inks.”
Burrows thinks along the same lines. She mentions the requirement to undertake suitable and sufficient risk assessments of work activities and the work environment to identify risks faced and control measures required to reduce risks to a tolerable level. Further, organisations that employ five or more must document their health and safety policy and risk assessments.
Beyond that are duties that include planning, organising, monitoring and reviewing activities alongside the preventative and protective measures put in place, appointing a ‘competent person’ to ensure that the organisation handles its duties. Also, employers must provide employees with information about any identified risks and the policies and procedures that are in place to manage these risks.
For Verrico it’s important to “train your employees, supervise them effectively, give clear instructions, make sure that they are provided with safe tools and perform suitable and sufficient risk assessments which are capable of being followed”.
That said, as he comments, if an executive is looking to absolve themself of responsibility, “the hindsight-oscope offers excellent confirmation bias that the actions of another are to blame, rather than considering that the system itself may have inbuilt errors.” He says that “it is rare, in truth, for an employer to legitimately show that people put themselves in harm’s way in a truly mystifying manner”.
Allied to this is a point that Burrows says is often missed by organisations, that “a reverse burden of proof exists in health and safety law, meaning that a defendant has to prove, on the balance of probabilities, that it was not reasonably practicable to do more than they actually did”.
Where firms tend to go wrong
Clearly very few organisations intentionally break the law. But sometimes organisations simply become ‘blind’ to risks – it’s a case of familiarity. And sometimes Burrows has seen organisations fail to understand how far their obligations actually extend. As she says, “it is not enough for an organisation to implement a robust set of policies and procedures if they then fail to enforce them”.
It’s a similar line from Verrico. He says that he often sees a very different working environment after a workplace incident to that which managers and directors imagined when they set standards away from the frontline. Says Verrico: “All too often there is an expectation that employees will behave impeccably and not take risks nor will they make mistakes – but... most time and motion studies show that operators will occasionally get things wrong and responsible employers need to take action.”
As he says: “I’ve been doing this kind of work for 17 years and I’ve yet to meet a truly evil director or manager, who has deliberately chosen to hurt people or take huge risks – it’s much more that safety measures get eroded over time.”
Genuine accidents that no one could have foreseen do occur. And reassuringly, Burrows says that “in these circumstances the chance of prosecution is extremely low”. Remember, an employer only has to do what was “reasonably practicable” to protect people and if a risk was not capable of being foreseen, it would not be reasonably practicable to safeguard against it.
And with this in mind Verrico talks of companies lulled into a false sense of security because they have low lost time incidents or zero reportable incidents – “they don’t interrogate the near misses and the water cooler chat which acts as a harbinger of doom”. He says that when something goes tragically wrong, there is very little interest in safety certification and much more interest in how things operate in practice.
Culture, for him, is significant since it determines how people act. He says that “the best way to improve culture is to understand the spaces where near misses are happening and do something about them”.
So, following an incident, he would conduct a full investigation to “explain the decision tree which participants walked down to arrive at the event horizon… unearthing these ‘unicorns’ may save future incidents from occurring”.
Deliberate employee activity
It’s important to understand here that, as Burrows says, “employees also have a duty to take care of their own health and safety and that of others who may be affected by their actions at work. This includes working with their employer to ensure... and identifying any unassessed or new risks as they arise.”
She’s well aware that “there will always be those who deliberately and/or unintentionally break the rules put in place by their employer… so it is therefore incumbent on the employer to reinforce the organisation’s health and safety principles on a regular basis”.
In a manufacturing scenario, Verrico has seen “workers bypass safeguards and light guards or in other instances have, with the very best intentions, removed fixed guards to maintain equipment and then failed to have an effective communication strategy with tragic results”.
He notes that if an employee deliberately violates a system, they can be held personally accountable for not taking reasonable care – “and if the company has done all that is reasonable, it will not be held criminally liable”.
To lower risks, Burrows recommends simple things such as posters and warning labels, toolbox talks and refresher training. Also, monitoring and supervision allow supervisors to identify, highlight and correct poor behaviour, leading to disciplinary action in the most serious cases.
An incident occurs
Following an accident, apart from caring for the injured, the incident must be reported to the person responsible for health and safety within the organisation and, says Burrows, the scene and evidence must be preserved.
She says that “it is good practice for every organisation to have an incident management protocol established so that in the event of an incident, a clear process can be followed”. She adds: “The incident may need to be reported immediately to the police and/or HSE under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995. You may also be required to contact your insurers and you may wish to contact your legal advisors.”
As to what happens next, Burrows – assuming that the police are not involved – says that the HSE will decide whether to investigate. They may want to visit the scene of the accident, which they have the power to do within reasonable hours. Here she says that “one person should be made the single point of contact to ensure a clear line of communication with the HSE and accurate written records of conversations with the HSE and any documents or information requested should be maintained”.
Verrico is careful to say that an HSE inspector will be concerned with two things – making sure that no one gets hurt in the same way as happened in the incident, and ensuring that where lessons can be learned, they are immediately considered across the whole organisation or industry. This is why he says, “engaging with the HSE on these points is critical”.
But once the immediate objective of stopping anyone else from being hurt is met, he points to the obvious – that HSE inspectors have a wider role in investigating and, potentially, enforcing. It’s really important to avoid confrontation.
On this Burrows says that HSE inspectors have extensive powers which allow them to obtain copies, not originals, of documents, seize equipment, take photos and measurements and interview witnesses. From experience, she says that “it is strongly advised that organisations obtain specialist legal advice in circumstances where the HSE choose to investigate an incident”.
As part of this Verrico says to avoid escalation, “keeping careful notes of conversations and any promises any member of your organisation makes to share documents or amend processes”.
Something else for organisations to remember is the HSE’s Fee for Intervention scheme. Under this, if an organisation is found to be in material breach of health and safety law, HSE inspectors can charge for their time to identify the breach, investigate and take enforcement action. The current rate is £157 per hour.
Enforcing the law
As many will know, routine HSE visits are no longer commonplace as it focuses on high-risk industries or situations where an accident has already occurred. However, Burrows warns organisations to be prepared for an unannounced visit and “any attempt to disrupt or prevent an inspector’s visit can lead to a fine or imprisonment”. Interestingly, with Covid-19, inspectors may start an investigation via phone or email, but she says that these should be treated with the same level of caution.
She adds that “where the HSE identify a material breach of the law, they have a range of enforcement options including offering advice and guidance, issuing enforcement notices, or prosecuting an organisation through the criminal courts”.
Also, if successfully prosecuted, organisations receive a criminal conviction and individuals who are criminally convicted may be fined and/or receive a prison sentence of up to two years.
Lastly, Burrows blows away one common misconception – that if there is no incident, there has been no breach of the law and there can be no prosecution. On the contrary – she says that “health and safety law works on the basis of risk of harm, meaning even if harm didn’t occur, if there was a risk that it could, this amounts to a breach and an organisation can be prosecuted accordingly”.
In summary
It’s patently clear that health and safety is a perpetual problem for all organisations, irrespective of size. One thing is certain, those that choose to ignore the rules will only get away with it for so long – ideally before anyone suffers an injury – or worse.
