Health and Safety at Work: Who’s responsible…?

Health and Safety at Work: Who’s responsible…?

When most of us hear of workplace accidents and injuries, we look on from the sidelines with a general ‘it will never happen to me’ attitude, turning up to work comfortable in the knowledge that our health and safety is being well cared for by the organisation in which we work.

Aside from the fact that many companies have poor safety records and your health and safety may well not be in a ‘safe pair of hands’, it is also not just the responsibility of your employer or those in charge of health and safety to look after you.

The Health and Safety at Work etc. Act 1974 (HSWA) imposes general duties on employers, the self-employed, controllers of premises, and manufacturers to ensure health, safety and welfare but the final group that makes up this list and the one which many of us do not realise exists is - employees

From the many convictions and cases that are brought by the Health and Safety Executive (HSE), it seems reasonably understood, if not carried through, that the HSWA imposes general duties on all employers and the self-employed to ensure the health and safety of those who may be affected by their business activities. Employers may also be liable for negligent acts committed by fellow employees acting in the course of their employment.

However, the HSWA also imposes a duty on employees to look after their own safety.

Section 7 of the Act clearly states that, while at work, all employees have a duty not to endanger themselves or others through their acts or omissions; and to cooperate with their employer, e.g. by wearing protective equipment.

7. It shall be the duty of every employee while at work-

(a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and

(b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with.

Section 8 also states that no person (whether an employee or not) shall misuse anything provided in the interests of health, safety or welfare.

Where an offence is committed due to an act or default of some other person (not being an employee), that person shall be guilty of the offence and may be charged and convicted of it whether or not the employer is also charged. This means that an individual employee can be charged with a health and safety offence without the company being charged of that offence.

An employer may be responsible for the negligent acts or omissions of employees committed in the course of their employment. A claimant can sue an employer on the basis of vicarious liability, provided he can show that the employee was negligent and this caused his injury. However, an employer will escape liability if it can show the employee was acting 'on a frolic of his own' outside the course of his employment.

Breaches of health and safety legislation in the workplace can give rise to criminal liability. In addition, the reality is that a workplace accident may also give rise to a civil, personal injury claim. Whilst a breach of the HSWA does not give an automatic right to a civil claim, in many cases the evidence used against a company in a criminal prosecution may similarly be used against a company in a civil claim.

Successful prosecutions can lead to six months’ imprisonment and a £20,000 fine, or if the case is escalated to the Crown Court, two years’ imprisonment and an unlimited fine can be imposed.

The message should be clear then, that we are all responsible for health and safety in our workplaces and the HSWA imposes duties on us all alike – employers, the self-employed and employees. As an employee it is your duty to look after your own welfare and that of the colleagues around you. In reality this should take no more than some common sense and knowledge of the systems in the area in which you work. If a task requires PPE then use it. If it is faulty then make someone aware. If you are unsure then check with someone first. There are plenty of experts inside and outside the workplace to make sure accidents don’t happen.

Some employees take on training courses, such as IOSH Working Safely, to help them improve their awareness.

Either way, make sure you stay safe!

Article by the Workplace Law Network

Corporate Manslaughter: The First Case by Workplace Law Network

The first trial to be brought under the Corporate Manslaughter and Corporate Homicide Act 2007 will open in Bristol Crown Court on February 23 2010 and is expected to last six weeks.

In June 2009 the Crown Prosecution Service authorised a charge of corporate manslaughter against Cotswold Geotechnical Holdings Ltd, in relation to the death of Alexander Wright on 5 September 2008.

Mr Wright, who was employed by Cotswold Geotechnical Holdings as a junior geologist, was taking soil samples from inside a pit which had been excavated as part of a site survey when the sides of the pit collapsed, crushing him.

Peter Eaton, a Director of the company, has been charged with gross negligence manslaughter and with an offence contrary to Section 37 of the Health and Safety at Work etc. Act 1974. Cotswold Geotechnical Holdings Ltd has also been charged with failing to discharge a duty contrary to Section 33 of the Health and Safety at Work etc. Act 1974.

The Act

The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect on 6 April 2008. Until then there was a common law offence only, which, in order for a company to be found guilty of it, required the conviction of an individual person for gross negligence manslaughter and for that person to be so senior within the company that he or she represented its 'directing mind'. Whilst attempts were made to prosecute big companies under the old law these attempts were all unsuccessful.

The new Act is an offence-creating statute rather than a duty-setting one and itself imposes no new health and safety duties. In other words, the Act is solely designed to make it easier to prosecute organisations where their gross negligence leads to death.

The wording of the Act is that an organisation is guilty of an offence if the way in which its activities are managed or organised: causes a person’s death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. An organisation is only guilty if the way in which its activities are managed or organised by its senior management is a substantial element in the breach.

Under this new law it is no longer necessary to convict one individual alone. The aggregated failures of a number of senior managers, who form the senior management, are sufficient.

In addition, the second part of the definition of senior management within the law catches people lower in the management chain than those who represented the ‘directing mind’ under the old law, meaning that a much wider part of the workforce could be considered by the prosecuting authorities when looking at whether the offence has been committed.

Having said that, the new offence continues to have a number of safeguards ensuring that the offence is likely to be restricted for the worst cases. In particular, in big companies the requirements for senior management involvement and for any breach to be gross.

The result of this is that to date the Act has not had the fearsome effect that some predicted and the safeguards that the Act provides is likely to mean that the floodgates will not open in terms of the number of prosecutions brought.

Convictions

Under the Act a conviction for gross negligence manslaughter carries a maximum sentence of life imprisonment, while a conviction for corporate manslaughter attracts an unlimited fine. Along with this goes the stigma of being a ‘corporate killer’.

The Home Office paper that went with the original Bill stated that the offence would be targeted at the worst cases of management failure causing death. If this is so, it is likely that fines for conviction will be set at a very high level and probably significantly in excess of record fines under HSWA.

A consultation guideline published in October 2009 by the Sentencing Guidelines Council, proposed that c ompanies and organisations that cause death through gross breaches of care could face fines of more than £500,000 and be forced to make a statement about offences on their website.

The publicity of a statement is designed to ensure that the conviction becomes known to shareholders and customers in the case of companies, and to local people in the case of public bodies, such as local authorities, hospital trusts and police forces.

The fines proposed in the consultation are not linked to turnover and some critics have claimed that this is a gross undermining of the Act and that the opportunity for a clear message to employers which might prevent deaths has been lost. The main reason for criticism of a minimum fine is that it may lead to the closures of smaller companies whilst being a drop in the ocean for much larger organisations.

Responses to the consultation should have been received by 5 January 2010, at which point the Council will consider any responses received and then issue a definitive guideline.

Conclusion

The outcome of the first case, while unlikely to be known for several months, will shed some light for employers on how this critical new legislation is likely to be interpreted by the courts. However, as the company is relatively small in size, many experts believe that the real test for the legislation will be when a substantial corporate body faces prosecution and that those expecting that this first case may provide some guidance on how the legislation will be interpreted will be somewhat disappointed.

Large or small, however, this is a timely reminder that companies that fail to keep their workers safe are liable to prosecution on a grand scale. Directors and senior executives need to act now if they want to avoid the heavy penalties and bad publicity that come from cases like this.

Although the Act has brought no new duties, it poses a natural reason and opportunity for organisations to review their safety management approach, their organisational framework and the systems underpinning them.

Guidance published by the HSE / IOD, defining what private and public sector directors should do to lead and promote heath and safety should be examined against organisations' existing safety management procedures to establish how they measure up and also to identify any weaknesses.

Bearing in mind the reach of the Act beyond the boardroom, organisations should not think that the principles set out in the guidance do not apply lower down the management chain.

It would also be prudent for organisations, particularly those in high-hazard industries, to review their liability insurance cover to ensure the legal defence costs for the new offence are covered. Many employers and Public Liability policies will provide such cover but some may not. Dependant on makeup and size the organisation may wish to explore the possibility of purchasing additional Directors' and Officers' cover or another form of management liability cover.

Experienced advice is important in the immediate aftermath of a workplace fatality, particularly as decisions made at this early stage can set the tone for the criminal investigation and can prejudice an organisation’s position and that of its directors and employees. In the circumstances, it is sensible to factor this in to the pre-planning of a major accident response.

If you are in any doubt about your responsibilities and how you should implement safe working practices then you should contact health and safety consultants.

Article by the Workplace Law Network