Death stalks the workplace, and serious injury follows closely. In fact, whichever way you look at it, no work-related injury – and there are many of them – is acceptable. The Health and Safety Commission‘s statistics for 2006-07 indicate that there were 241 workplace fatalities in that period – a fatal injury rate of0.8 per 100,000 workers.This amounts to an increase of 11% over the previous year.
Although other industries have proportionately less fatal accidents, the overall concern is that, even with the stringent demands of the law, the risk of death remains significantly high. A new law came into force last month which provides tougher penalties for managers who do too little to reduce the risk of death and injury of their staff: the Health and Safety (Offences) Act 2008.
Legislation in the UK has long followed the preventative route and has had much success, the most significant being the implementation of the health and safety regulations in 1992 relating to safe procedures in a raft of work-related areas. Manual handling of loads, use of display screen equipment, implementation of workplace health, safety and welfare procedures, together with the safe use of work equipment, are supported by the all-important Management of Health and Safety at Work Regulations, updated in 1999 and again in 2006. The core principle is risk assessment: find it, reduce it, and check from time to time to see whether things have changed.
Criminal liability for workplace injury is imposed on managers and directors, who must take care not to put others at risk.Until recently, liability on individuals has been difficult to establish, and the penalties uncertain, limited to fines of varying magnitude and with prison sentences limited to six months for summary offences. However, the law has been changing to fit these dangerous times.
Health and Safety (Offences) Act
HASWA is no longer alone on the statute book. The Health and Safety (Offences) Act 2008, in force since 16 January 2009, provides that any individual convicted of a health and safety offence is now eligible for a sentence of imprisonment within the range of available penalties. The powers of magistrates have been increased so that fines, previously limited to £5,000, are now increased to £20,000, and prison sentences can be forup to two years. Crown courts retain the power to impose unlimited fines and higher prison sentences.
For a prosecution to succeed, knowledge of, or connivance in, the offence is required. Any senior employees with responsibility for managing the person who was injured in the workplace could be convicted if it can be shown that they agreed to actions that caused the incident, or if they negligently failed to carry out a mandatory duty.
The Enforcement Policy Statement of the Health and Safety Executive –http://www.hse.gov.uk/pubns/hse41.pdf – is now essential bed-time reading. It emphasises that prosecutions should be in the public interest and where one or more of a list of circumstances apply. These include where:
a legislation breach resulted in death
there has been reckless disregard of health and safety requirements
there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance
the standard of managing health and safety is found to be far below what is required by health and safety law, giving rise to significant risk.
The existence of the stronger powers of the new Act does not mean that there is to be a heavy-handed approach to prosecution. OH professionals need not start wondering who to favour with a Visitor’s Order and how to keep up–to–date with their work while serving their debt to society. Even if they are implicated in a breach of the law, the Enforcement Policy Statement emphasises the seriousness of the factors required for prosecution of individuals.
Otherwise, the Health and Safety Executive (HSE) will adopt its previous and continuing approach of inspection, investigation and taking action escalating from advice, warnings and the use of improvement and prohibition notices as applicable to the corporate body.
The HSE emphasises that “prosecutions of individuals are not undertaken lightly. Any prosecutions of individuals are subject to strict considerations and are only taken if warranted, and not in lieu of a case against their employer“. The entire approach remains that of attempting to alleviate the situation, rather than look for scapegoats.
The policy statement makes this very clear. “When inspectors offer duty holders information or advice, face to face or in writing, including any warning, inspectors will tell the duty holder what to do to comply with the law, and explain why. Inspectors will, if asked, write to confirm any advice, and to distinguish legal requirements from best practice advice.”
Death is the irreversible ill of all workplace catastrophes. Blame does not make amends, but the courts can intervene. Turn the clock back to 1987: the Zeebrugge disaster. The Herald of Free Enterprise ferry capsized in the English Channel, with the loss of 193 lives. The public enquiry was highly critical of the shipping company and its managers. “All concerned in management… were at fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom, the body corporate was infected with the disease of sloppiness.“
The coroner’s verdict was “unlawful killing”. Several of the individuals involved at the company were prosecuted for manslaughter, as was the operating company, P&O European Ferries (Dover). But all the defendants were acquitted when the court ruled there was no evidence that one sufficiently senior member of the company’s management could be said to have been reckless.
Other corporations have also been dealt with by criminal law on the basis of health and safety legislation with consequent fines. However, there has been a problem with prosecution of corporations for manslaughter, due to complicated and hitherto effective legal argument about whether a company can have the required intent or have been so grossly negligent as to have committed such a crime.
That was the problem with the prosecution of Great Western Trains after the Southall rail disaster in 1997. The manslaughter charges against the company were dropped because no director had been charged. The company was fined £1.5mbecause of its defective operating procedures which led to the crash.
The question of who – or what – to charge has now been resolved by the Corporate Manslaughter Act 2007. This has been in force since April 2008. It is not considered to be part of health and safety legislation in that the HSE would not have the power to prosecute offences under the Act. However, it marks an important stage of progress in the law -wenow have the situation where the company can be prosecuted, not individuals. This still leaves the door open for a prosecution by the HSE under the current health and safety law unaffected. Directors, board members or other individuals can be prosecuted under health and safety law or general criminal law.
It is arguable that the effect of the Corporate Manslaughter Act is only to give a different name to charges against a company given the heavy penalties that can be exacted by health and safety prosecutions. However, the public concern about the nature of the crime that has been carried out is likely to be satisfied by the new powers.
The Act addresses the effect on the deceased individual, and offers them the dignity that their death is at the root of the prosecution. An organisation will be guilty of corporate manslaughter if the way in which it manages or organises its activities causes a death and amounts to a gross breach of a duty of care to the deceased. The failure in process must be directly attributable to those at a senior level in the company who make the relevant decisions, whether managers or directors.There are certain entities that are exempt from the act, including military operations. But partnerships, the police and all companies and other corporate bodies in the UK in both private and public sectors are included.
The combined effect of the two new Acts is to ensure that public concerns over punishment for deaths is covered while there is now a wider range of punishment for general health and safety offences. Every risk is avoidable, so no prosecution need happen. But risks are there, and all we can do is look to identify, assess and minimise – so that the words “not guilty” can have the ring of truth.
Linda Goldman, BDS, LLB, is a barrister at 7 New Square, Lincoln’s Inn. Joan Lewis, MCIPD, MA (law andemployment relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect
Comparison of new and previous penalties
|Previous penalties||Penalties from January 09|
Fine: Magistrates Court:
Maximum fine £20,000 for nearly all offences.
|Fine: Crown Court: unlimited fine.||Crown Court: unlimited fine.|
| Prison: Not available for most offences. |
For a few offences, including failing to comply with a prohibition notice: Magistrates Court: up to six months
Crown Court: up to two years.
| Aavilable for nearly all offences.|
Magistrates Court: up to 12 months.
Crown Court: according to offence.