In seeking to counter some of these myths, we sought the views from two lawyers: Laura Shirley, head of Eversheds Sutherland’s Birmingham EHS team, and James Lowe, regulatory partner in the Commercial Litigation department at Wright Hassall, on where they see problems appearing.
Laura Shirley’s top five myths
Myth number 1: We can delegate our liability to our contractor
Many firms see the attraction of using contractors. But for Shirley, the ability to pass on liability is not one of them; she observes that for decades there have been prosecutions of those that have failed to properly manage contractors.
As she explains: “The use of contractors forms part of a client’s ‘undertaking’ – that is, the way it runs its business – and therefore invokes a duty of care under Section 3 of the Health and Safety at Work etc Act 1974.”
The natural question is that if the appointment of contractors does little to mitigate liability, why use them at all? There are, of course, two good reasons: contractors are often the experts in what they do; and contractors may be able to ‘bulk buy’ labour in a way that a client cannot.
Nevertheless, Shirley sees a conundrum – accepting a duty of care in a situation when the client does not have the expertise and/or the resource necessary to provide constant specialist support. Helpfully, she says that “the legal duty of care requires clients to do only what is ‘reasonably practicable’”. To this she adds: “There is an acceptance that clients need to rely on the expertise of a contractor in the right circumstances and that a client may need to trust a contractor to ‘do the right thing’ when they are not around.”
As to what is regarded as ‘reasonably practicable’, Shirley points to what has been laid out by the Health & Safety Executive (HSE): the need to plan work appropriately; select the most suitable contractor; ensure the contractor is provided with the right information; provide suitable monitoring and supervision; and regularly review the contractor’s performance.
Each of the steps should be “proportionate to the risk of the work being performed as well as other factors such as previous experience with the contractor,” Shirley adds.
Myth number 2: Mental health at work isn’t regulated and therefore we don’t have any duties under safety law
In the last few years awareness and education around mental health and wellbeing have improved societal attitudes. This, according to Shirley, “has assisted in reducing the stigma and prejudice associated with these unseen illnesses; the shift in attitudes has encouraged organisations to direct focus on the ‘health’ in health and safety management”.
None of this should be new to management for, as Shirley says, “organisations have a duty to assess levels of work-related mental health issues and implement measures to remove or reduce identified risks as far as reasonably practicable”.
She details how guidance from the HSE focuses on work-related stress but also acknowledges that work can aggravate pre-existing conditions and can bring on symptoms or make them worse. “Organisations,” says Shirley, “often fail to address these risks and frequently wellbeing in the workplace is forgotten.” She continues, noting that “the number of suicides has increased year on year since 2013. As an unnatural death they are referred to the Coroner’s Service for investigation”.
Shirley tells how, when considering such cases, enquiries will often extend to the suitability and implementation of workplace wellbeing frameworks: “A focus on training, signposting of services, disciplinary communications and line manager check-ins to consider workloads and concerns, are all matters that I would seek to explore.” And if there are inadequate procedures and assessments, failures in training managers and educating the workforce on mental wellness, she warns that an organisation may find itself subject to a Prevention of Future Death Report.
Myth number 3: Only companies that don’t care about health and safety have accidents
Any organisation can have an accident and Shirley knows that accidents happen when a series of events or circumstances come together. Referring to what is known as the Swiss cheese model, she explains that “an organisation that prioritises health and safety will often have more layers of defence to those factors lining up, but it does not mean that they cannot or won’t line up.” In order for an incident to occur, the weaknesses in those layers of defence – the holes in the metaphorical slices of Swiss cheese – need to align.
As she says: “No employer can eliminate all risks; even the best are vulnerable to unwanted events and sometimes the events that lead to an incident are only a hair away from no incident happening at all.”
So why do incidents happen? In answer Shirley says that there is never usually one reason, but there is usually complacency, stagnation, or a culture that the health and safety job is done. That is why she says that “it is so important for organisations to regard health and safety as an ongoing, business-critical risk, monitored at the highest levels and periodically revisited.”
A key point she makes is that the “well-known health and safety risks have been joined by psychosocial risks around work-related stress, mental health and wellbeing that employers are obligated to manage”. For her, it’s only a matter of time before these new risks become subject to enforcement – “the legislation is there to do it”.
In her view, “the real measure of an organisation is how it evolves its culture after an accident to make what is an awful situation into one which puts health and safety at the heart of everything it does.”
Myth number 4: Good health and safety advisers just tell people off when things go wrong
For many, references to health and safety conjure up negative stereotypes, and “quite often,” Shirley says, “this includes descriptors about health and safety advisers being fun-spoilers, killjoys or grey-faced bureaucrats”.
However, in her view, “it’s an unfair, misleading and an unhelpful myth that needs busting”.
She refers to 1972 when Lord Robens published his report into health and safety regulation in the UK. Written in the wake of the Aberfan disaster, six years earlier, “the report recommended wholesale revisions to the old Factory Inspectorate regime which led to the 1990s introduction of new health and safety regulations, and an increase in corporate governance, leadership, and a standards-driven approach to health and safety”.
Further, Shirley notes, “the Management of Health and Safety at Work Regulations 1992 introduced responsibilities upon employers to carry out risk assessments and health surveillance as well as requirements relating to the sharing of information with employees; and competence, capabilities and training.”
The role of the health and safety adviser, Shirley says, is “to assist organisations in implementing strategies and control measures that appropriately address risks arising in the workplace, and to ensure that hazards are controlled”.
Notably, she says, the regime requires advisers “ensure that all employees understand the health and safety systems in place within the business and, importantly, why and how these are designed to protect them, and what they must do to protect themselves”. The role, says Shirley, necessarily requires “engagement and co-operation with the workforce, to secure their buy-in to those safety arrangements, and thereby encourage compliance with the organisation’s safety policies and procedures”.
From her perspective, good health and safety management systems recognise that compliance cannot be achieved by “unilaterally imposing rules and seeking to enforce them”. Rather, they seek to engage, discuss and involve the workforce in those rules and procedures.
Myth number 5: Even if the HSE investigates, unless it prosecutes, we won’t be hit with costs
Following a conviction for a health and safety offence, the HSE will seek to recover its investigation and legal costs. However, it often comes as a surprise that it can also charge for time spent investigating matters that do not result in legal proceedings.
Shirley says that since its controversial introduction in 2012, “when the HSE inspects a company and identifies a material breach of the law, the company will have to pay a fee for intervention – FFI”. She details how work undertaken by the HSE is recorded on an hourly basis and includes time spent identifying the breach, the provision of advice to rectify the breach and also investigate and take enforcement action.
Shirley explains that a material breach occurs where “the HSE inspector deems it to be serious enough to notify the company in writing... normally in the form of a Notification of Contravention”. That said, HSE inspectors are required to apply HSE guidance to their decisions and any enforcement decision should be based on the principles of the HSE’s enforcement decision-making frameworks. Even so, Shirley says that “the subjective nature of the FFI regime has attracted much criticism”.
She tells how many labelled the scheme as unfair and argued that “it was particularly unjust for the HSE to play judge, jury and executioner”. But having faced the threat of a Judicial Review in 2017, the HSE introduced an independent panel to decide invoice disputes – “this,” she says, “is generally accepted to be working well and has provided much needed transparency”.
Her advice to companies is to carefully scrutinise FFI invoices upon receipt and raise any queries promptly with the HSE: “With a current hourly rate of £160, FFI invoices can be significant, particularly where multiple site inspections or specialist support is engaged by the HSE for complex issues.”
James Lowe’s top five myths
Myth number 1: The government’s Covid restrictions keep changing, so companies do not need specific measures in the workplace
Lowe, like Shirley, notes that employers have a legal responsibility under the Health and Safety at Work etc Act 1974 to ensure the health, safety, and welfare of their employees while at work and other persons, so far as reasonably practicable. He says, though, that “this general duty to protect employees and others from harm and to take reasonable steps to protect those in the workplace is not a static obligation – it needs to be reviewed regularly”. In his view, the pandemic is a dramatic example of a new risk to workplaces which should be assessed and addressed whether or not Covid legislation specifically requires it.
Lowe continues: “Since the pandemic began, the government has published Workplace Guidance which it updates each time national restrictions change. This guidance does not supersede employers’ existing legal obligations relating to health and safety.” His point is that the guidance is likely to be considered the minimum that businesses need to implement when complying with general health and safety obligations.
So, his advice – for the moment at least – is that when employers carry out health and safety risk assessments, “the risks concerning Covid should always be included, and reasonable steps taken to ensure that risks are mitigated so far as reasonably practicable”.
And to embellish the point, he adds that “as local or national Covid restrictions change, employers should continue to update their Covid risk assessments and if necessary, the measures that are in place to reflect any changes.”
It’s important to remember that the HSE and local authorities are the lead enforcement authorities for all health and safety legislation, and “this,” says Lowe, “includes Covid compliance and enforcement”. Any business failing to address Covid related risks in the workplace may therefore face improvement notices, prohibition notices, investigations, and prosecutions.
Myth number 2: Health and safety management systems just cause red tape
The second problem area for Lowe is that relating to health and safety management systems – the formal framework to help an organisation manage and improve its health and safety. He notes that “they are not legally mandatory, so businesses can choose whether to have one – and many avoid what they perceive to be unnecessary bureaucracy. But regardless, what is needed in any organisation is a culture of safety, whether or not a formal health and safety management system is used.”
He reiterates the point that employers have a legal obligation to manage health and safety risks in their business. This is why he thinks that by establishing a health and safety management system “an organisation should be able to demonstrate that it has identified and considered such risks and can address them to ensure that they are managed and controlled”.
The system doesn’t have to be complex. In fact, Lowe thinks that “a simple, straightforward system, with clear responsibility and a structured approach to assessing, controlling, and monitoring will not only contribute to an organisation meeting its legal obligations, but will demonstrate to employees that they are valued at work and that their health, safety, and wellbeing is prioritised”. He knows from experience that this will also improve the culture of health and safety in organisations and should, in theory, reduce workplace accidents and ill health – which he says “is the ultimate purpose of all health and safety systems”.
Further, and with an eye on the bottom line, there is evidence that having an established health and safety management system in place will reduce certain insurance costs, increase the likelihood of attracting investment into a business from financial institutions and others.
Myth number 3: I cannot be liable for the consequences of my actions in the course of my employment
This is an important myth to dispel in Lowe’s opinion. He says: “It is settled law that an employer can be held responsible for the actions of their employee if such actions were committed during their employment. This is known as vicarious liability.” He carries on to explain “that employers in businesses are usually legal entities such as companies, so if an employee acts negligently or illegally, a company may end up being prosecuted”.
But worryingly, not many realise that in relation to health and safety legislation, there are, says Lowe, “situations where individuals can also be held personally liable for their actions, even though these were undertaken as part of their job”. He adds: “Employees may be prosecuted if they have not discharged their individual duty to take reasonable care for their own health and safety and that of others who are affected by their acts or omissions.”
It’s just as pertinent to note that directors and officers of a company are firmly in the firing line and can be personally prosecuted if a company commits a health and safety offence which can be shown to have been committed through their consent, connivance, or neglect.
On this Lowe details that “the Health and Safety Executive has used its powers much more frequently in recent years; fines on conviction can be considerable and custodial sentences are more likely since the introduction of the Definitive Guideline for sentencing Health and Safety Offences”.
Myth number 4: Fines for breaching health and safety laws are not significant
Another worry for Lowe is that some ignore the law since they believe that if they’re caught that the penalties will be trivial. The reality, says Lowe, is that “there are a variety of penalties for breaching health and safety laws depending on which laws are breached, and the circumstances of the particular matter.”
It should be noted that prior to 2015, the maximum fine that could be imposed on a company in a Magistrates’ Court was £20,000 per offence, although it was unlimited in the Crown Court. That upper limit has now been removed in the Magistrates’ Court and unlimited fines can now be imposed in both jurisdictions.
As to what may be levied, Lowe points to the Definitive Guideline for sentencing Health and Safety Offences. It sets out the scope and parameters for sentencing such offences and have “led to significant increases in the fines imposed by the courts which now take in to account a company’s turnover, as well as culpability, harm and other factors when considering the appropriate penalty”.
Notably, 2021 saw some of the highest ever penalties for health and safety breaches. Here Lowe cites the largest fine of £4m plus costs was given to National Grid Gas (see Myth No. 5). Since then, in February 2022 Northern Gas Networks was fined £5m after a fatal gas explosion. Then there’s the cases involving British Airways, Essex Partnership University NHS Foundation Trust, Enterprise Managed Services and Drayton Manor theme park – all of which were fined over £1m where fatal injuries had occurred. Other cases to note are Aster Healthcare, which was fined £1m for corporate manslaughter after the death of an elderly woman at a nursing home in Bracknell and other workplace accidents have led to significant fines.
As Lowe summarises: “Businesses cannot count on fines for breaching health and safety laws being insignificant. In all likelihood the contrary will be true. The costs to the business may be enormous and it is vitally important to secure early legal representation when an incident occurs.”
Myth number 5: HSE will not prosecute if there was no accident
The very last myth Lowe busts is that prosecutions only follow on from accidents. While he says that many health and safety prosecutions occur after an accident or death in the workplace, “many of the fines handed out in 2021 – including the largest – resulted from a risk of harm, rather than an incident occurring that led to injury or death”.
In the example noted in Lowe’s fourth myth, National Grid Gas was fined £4m for failing to ensure its records relating to gas risers in some high-rise multi occupancy building were up to date, even though this failure had not actually resulted in an accident or death.
National Grid Gas operates the nationwide gas transmission system and the gas distribution systems supplying gas to approximately half of the UK domestic and industrial gas customers, including the gas pipes in high-rise multiple occupancy buildings (HRMOBs).
Lowe explains that in 2016 it sold part of its operations to Cadent Gas, including inspection and routine maintenance obligations in various HRMOBs. “It was subsequently discovered that incomplete records about the HRMOBs were transferred to Cadent who therefore were unknowingly inspecting only a portion of the buildings for which they had become responsible. Routine safety inspections on hundreds of properties therefore did not take place for many years creating a risk of harm.”
He adds that after this discovery was made by the HSE in 2018, Cadent took appropriate remedial action. National Grid Gas were prosecuted for its failings, and pleaded guilty to breaching health and safety law, resulting in the hefty fine: “It was shown that National Grid Gas did not have a robust system for recording the details of the gas pipes within HRMOBs, and when the data error had been identified, it had failed to act to correct these.”
So, with these 10 myths debunked, health and safety offences do not only relate to situations where harm is caused, they can also centre around omissions in administrative processes that have the potential to cause harm. When these failures, and their possible consequences come to the attention of the authorities, they have shown that they will not hesitate to prosecute.
