Lawyers highlight effects of new health and safety law

The Health and Safety (Offences) Act 2008 has quietly progressed through the Houses of Parliament and comes into force this week with strict new workplace safety rules.
The Act is set to increase penalties for health and safety law and provide both the courts with greater sentencing powers when it comes into force on Friday 16th January.
In stark contrast to the Corporate Manslaughter and Corporate Homicide Act 2007, the new Act has quietly progressed through the Houses of Parliament.
Rachael Histed, Associate at DLA Piper, explains: “The objective of both the Government and the Health and Safety Executive (HSE), has been to raise the maximum penalties for health and safety offences so that they become a sufficient deterrent and appropriately deal with individuals who flout health and safety legislation.
“Under health and safety law, any individual in the workplace including employees, management and directors can be prosecuted for health and safety offences. Previously most breaches of health and safety regulations were subject to a fine not exceeding £5,000 in the Magistrates Courts, however the new laws significantly increase the maximum fine to £20,000.”
The new laws will also make imprisonment an option for more health and safety offences without the need for indictment and will make certain offences that were previously only triable in the Magistrates Courts, triable in Crown Courts too, which can result in larger fines and longer sentences.
According to HSE Chair Judith Hackett there are “no changes” to businesses existing legal duties under the Act, but businesses should continue to be vigilant.
Said Histed: “Whilst the HSE has commented that “good employers and good managers have nothing to fear”, given that there is a real possibility of two year jail sentences being imposed which can be accompanied by an unlimited fine, directors and individuals in management in particular, should be even more concerned to ensure that health and safety obligations are fulfilled.

“Individuals should pay particular attention to their own duties in relation to health and safety whilst management would be well advised to satisfy themselves that adequate and effective systems and procedures are in place and are being followed within their businesses.

“Once in force, it will be interesting to see whether the HSE changes its standard approach to investigating offences in order to personalise responsibility and bring more prosecutions.
“The Secretary of State for Work and Pensions believes that ‘the courts are right to call for the availability of the penalty of imprisonment for the most serious offences’.

“Even more caution will need to be exercised when responding to the HSE and/or Police where Corporate Manslaughter is being investigated, for example, as it is quite conceivable that proceedings will be considered against corporate entities and individuals at the same time”,  adds Histed.
These tougher sentencing powers which permit the imprisonment of individuals may conflict with aspects of European human rights law.

Explains Histed: “Individual defendants facing the possibility of imprisonment may be confronted by what is termed a ‘reverse burden of proof’. As health and safety law stands, where the duty holder is required to do something ‘so far as is practicable’ or ‘so far as is reasonably practicable’ the burden is on the defendant to prove that it was not practicable or reasonably practicable to have done more than was in fact done.

“This brings into play the presumption of innocence within the European Convention on Human Rights and whilst the courts have already held that the reverse burden of proof is compatible, it remains to be seen as to whether a legal challenge against the Act will be made on this basis.”

The importance of obtaining legal advice at an early juncture should not be underestimated.

Accidents, incidents and raids can occur when and where least expected, and if not handled correctly from the outset, they can have instant and dramatic impact on business, its reputation and the livelihoods of employees.

DLA Piper has a unique Rapid Response service, which provides critical support when and where it is most needed.

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