UK: Safety, Health & Environment (SHE) Regulatory Newsletter - Autumn 2015

Last Updated: 2 November 2015
Article by Clyde & Co LLP

Welcome to Clyde & Co’s Safety, Health and Environment (SHE) Regulatory newsletter.

Our SHE regulatory team specialises in regulatory defence work and has ‘one of the largest health and safety offerings in the UK market’ demonstrating ‘real strength in depth’ according to Chambers and Partners UK. We are ranked as a first tier firm by Legal 500 who believe that our practice is ‘in the top flight of firms working in this area’, with particular praise for our ‘fantastic service’ and ‘outstanding’ team.

FIRST PROSECUTION OF PUBLIC BODY FOR CORPORATE MANSLAUGHTER

By Mark Brookes and Alan Kells

The first prosecution of a Public Body for the offence of Corporate Manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) will take place early next year.

A NHS Trust will face trial, along with two doctors accused of gross negligence manslaughter, following the death of a woman giving birth by emergency Caesarean in October 2012. The trial is due to begin on 11 January 2016.

While the CMCHA specifically allows for the prosecution of public bodies, this is the first time since the Act was introduced that it has taken place.

The Prosecution will allege that:

  • The Trust managed or organised its activities in a way which caused the death
  • The death was the result of a gross breach of a relevant duty of care owed to the deceased
  • The manner in which senior management managed or organised the activities is a substantial element of the breach

We will follow the proceedings and keep you updated.

HSE FATAL INJURY STATISTICS FOR 2014/15

By Mark Brookes and Alan Kells

The HSE has published its Fatal Injury Statistics for 2014/15 which show a slight increase in fatal injuries to workers in the workplace, rising from 136 in 2013/14 to 142, although this is still lower than the average of 156 over the past 5 years. In addition, there were 102 members of the public fatally injured in incidents related to work (excluding railway related fatalities).

This means there were 258 fatal incident enquiries undertaken by investigators last year. Where a work related fatality occurs, the Police will investigate jointly with the regulator (whether HSE or Local Authority) under the Joint Work Related Death Protocol. The Police considers offences of Corporate Manslaughter (against the organisation) and Gross Negligence Manslaughter (against individuals). The HSE or Local Authority will consider health and safety offences.

What are the statistics?

When we examine the statistics, the overwhelming majority of fatalities involving workers occurred in England (113), with the North West (20) and South West (19) having the highest number per region. There were 20 fatalities in Scotland and nine in Wales.

The services sector had the highest number of fatalities (156) although when that figure is compared with the number of workers in the sector this equates to 0.21 deaths per 100,000 workers. Of the 156 fatalities relating to the services sector, 105 involved members of the public.

The most dangerous industry is agriculture with 37 fatalities which averages out as just over nine deaths per 100,000 workers. Unsurprisingly, construction also figures highly in the number of incidents recorded with 39 fatalities which, when considered as an average figure, equals 1.62 deaths per 100,000 demonstrating the significant strides being taken in this sector.

Corporate Manslaughter

The offence carries an unlimited fine if convicted. It is impossible to put a precise figure on the amount of fine because of the variables involved – size of business, turnover, level of culpability etc. – but the Sentencing Guidelines Council advise the penalty will rarely be less than GBP 500,000 and may run into the millions (although please note there will be revised guidelines issued in November 2015 which will likely suggest consistently higher penalties for large organisations in future – we will be writing with a separate update as soon as the guidelines have been issued and with details of our seminar programme on this topic).

Gross Negligence Manslaughter

The offence carries a maximum sentence of life imprisonment.

While previously the Courts have been willing to impose suspended prison sentences on those convicted (served in the community), more recent guidance from the Court of Appeal indicates this will generally not be appropriate and a prison sentence should be imposed.

THREE YEARS OF FEE FOR INTERVENTION – INCOME INCREASES FOR 2014/15

By Mark Brookes and Alan Kells

The Fee For Intervention Scheme (FFI) by which the Health and Safety Executive (HSE) recovers fees from businesses they deem to be in "material breach" of health and safety legislation has been with us for three years as of 1 October 2015.

FFI is the system by which the HSE recover the costs of investigations when there has been a material breach of the law, the Inspector is of the opinion there is or has been a "material breach" of health and safety law, and the Inspector notifies the business of this in writing. The business will then be billed GBP 124 per hour for the work completed by the HSE up to the point an enforcement decision is made. Invoices are issued every two months.

The amount invoiced or the Inspector's opinion that there is a "material breach" can be challenged by raising a Query with the HSE within 21 days of the invoice date. If not satisfied with the outcome of this, a Dispute can be raised in writing within 21 days of the HSE's response to the Query. Decisions on Queries are dealt with by the FFI Team at the HSE, and Disputes are decided by a panel of two HSE staff and one independent member. A business will not be charged for raising a Query but will be charged for the HSE's time if a Dispute is not upheld.

The HSE's most recent accounts (2014/15) confirm income for the year from FFI as GBP 10,150,000, up from GBP 8,706,000 the year before. The scheme is likely to remain, especially as the HSE has dropped the idea of duty holders voluntarily paying for inspections following consultation with a number of organisations.

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