AIMING FOR COMPLIANCE

Lachlan Nisbet outlines the evolving landscape of health and safety compliance, detailing what businesses need to be aware of in 2024 and beyond.

In 2022/23 there were 216 criminal prosecutions taken under health and safety legislation, with a conviction rate of 94%. In that same period, over 8,000 enforcement notices were issued – 6,000 prohibition notices (requiring immediate cessation of an activity) and 2,000 improvement notices (requiring, as the name suggests, an improvement to a working practice/situation). Fines in this area are linked to a corporate body’s turnover but the courts have an unlimited fining power. The largest fine seen in 2022 was £5m. This says nothing of the sometime enormous legal costs awarded to the prosecution and incurred by defendants for their own lawyers.

Some further bad news is that whereas prior to 2012 an acquitted defendant could recover the bulk of its legal fees, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 saw to it that corporate defendants in criminal trials recover no fees at all — whatever the outcome of the trial. The legislation also placed huge constraints upon the circumstances in which acquitted individual defendants can recover costs and the rates at which such costs can be recovered.

This legislation and the changes it introduced are still, notwithstanding the passage of time, not well know about by those most effected — they often only find out when they are facing prosecution proceeding.

Further, and as many may know, for over a decade now, the Health and Safety Executive (HSE) has operated a scheme called Fee for Intervention (FFI). In short form, FFI allows an HM Inspector of Health and Safety who might attend your premises and who forms the opinion that they have seen a “material breach” of a relevant legal obligation, to charge you for their time. The FFI charge can include the inspector’s time in attendance at your premises, statement taking, report writing, taking specialist advice and so on… all at the current hourly rate of £174 — up by 40% from the hourly rate of £124 employed at the inception of the scheme in 2012. This rate is said to reflect the direct costs of enforcement to the regulator — something that, unless the HSE is paying its staff considerably more than publicly available information suggests, I find difficult to understand.

The HSE’s accounts for 2022/23 show income from this scheme totalled £14.3m — up just shy of £1m on the preceding year.

This is revenue generated from a scheme underpinned by the opinion of a single inspector in respect of which there is only a very limited mechanism for appeal.

Generally, the FFI scheme aims to place the cost of regulation upon the regulated and specifically upon those who do not observe the law. Some have questioned, however, whether the scheme incentivises the use of FFI charges, for example by charging smaller amounts in a way which largely avoids scrutiny or whether the regulator is targeting inspectors to generate certain levels of revenue via the scheme. Whatever the case, the trajectory for fines, legal costs and the cost to business of the FFI scheme demonstrate that compliance with health and safety obligations has never been more important — more on that below.

LEGAL OBLIGATIONS

It never fails to surprise me how many duty holders we come across who are blissfully unaware of the extent of their exposure to risk. This gap in understanding is present across the board from the well-intentioned volunteers sitting on the boards of organisations like charities, schools and the like, right through to senior board room figures in huge corporates.

“THE FFI CHARGE CAN INCLUDE THE INSPECTOR’S TIME IN ATTENDANCE AT YOUR PREMISES”

You wouldn’t expect people at this level to understand the intricacies, but they are expected to understand health and safety on a strategic level — they are ultimately responsible for driving health and safety strategy through the organisation and cannot do that unless they know what good looks like.

This article isn’t intended to be a legal essay and so will only touch on some of the main provisions and concepts. There is a plethora of regulations, approved codes of practice and guidance relating to health and safety, and there are other offences aside from those outlined below which are related, such as corporate manslaughter and gross negligence manslaughter.

IMAGE: SHUTTERSTOCK -APCHANEL

“MY ADVICE WOULD BE TO ENSURE, FOR OBVIOUS REASONS, THAT RISK ASSESSMENTS ARE KEPT IN WRITING AND ARE REVIEWED REGULARLY IN SUCH A WAY AS TO ENSURE THAT REVIEWS CAN BE DEMONSTRATED.”

The Health and Safety at Work Etc. Act Of 1974 (HSWA)

The HSWA is the principal piece of health and safety legislation in the UK and it is broadly the umbrella under which many other regulations sit. The HSWA provides for an employers’ liability towards its own employees (section 2) and those outwith its employment who may be affected by its operations (section 3). It also places a duty on each employee towards others (section 7) and places certain liabilities on directors and senior managers (section 37). Paraphrasing for brevity, the obligation is to reduce, so far as is reasonably practicable, the risks created by your business.

Two key factors need to be borne in mind when considering this legislation.

Firstly, health and safety enforcement is not about accidents; accidents are a consequence of poorly managed risk. It is usually the case that an investigation is triggered by an accident or fatality — but there need not have been an accident or incident for an investigation to be undertaken or for a prosecution to be taken. The legislation aims to reduce to a minimum (not eliminate altogether) the risk to which people are exposed. Investigations and prosecutions relate, therefore, to the way in which risk is managed within an organisation.

Secondly, the burden of proving certain things lies with you as the duty holder. In the majority of criminal cases, it is for the State to prove the facts of a case to the criminal standard, that is, beyond reasonable doubt. In cases under the HSWA, however, there is what’s known as a reverse burden. In order for a prosecution to be taken, the HSE or local authority need only prove that the relevant organisation was i) an employer that ii) was operating an undertaking (for which read a business) which iii) exposed a person to risk (as above often but not always evidenced by an injury or fatality). Once these facts are established, it falls to the defendant to show that there were no further reasonably practicable steps that it could have taken to prevent the relevant risk arising.

DIRECTORS’ LIABILITIES

Directors and senior managers are those within an organisation who are tasked with ensuring strategic delivery of health and safety. They often call the shots in terms of what is spent on compliance and broadly how the business is operated. Unsurprisingly therefore, under the HSWA they are singled out for special attention. Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence. Proceedings can be taken against those falling within the ambit of section 37 whether or not the company are prosecuted and the penalties for individuals include a maximum term of 24 months’ imprisonment, unlimited fines (or both) and can include directors’ disqualification for a term of up to 15 years.

BE PROACTIVE

Risk assessments are the cornerstone of health and safety practice. A suitable and sufficient risk assessment should inform and underpin all aspects of safety management in your business. My advice would be to ensure, for obvious reasons, that risk assessments are kept in writing and are reviewed regularly in such a way as to ensure that reviews can be demonstrated. Employers also have a duty under the Management of Health and Safety at Work Regulations to appoint competent persons to assist with compliance of health and safety duties. This can either be an inhouse appointment or through the use of an external provider.

Problems, however, often crop up in SME’s where there isn’t necessarily the in-house skill set to undertake health and safety compliance work or there is a lack of confidence in this regard. Often these duty holders will reach out to consultants or “off-the -peg” providers for assistance. In these circumstances, the best overarching piece of advice I can provide is to avoid anything which is generic in nature. Whilst your organisation may be like many others and may have some aspects of its risk profile which are shared with other similar organisations, it is unique in lots of respects and a failure to acknowledge these differences will be glaring to inspectors and will be the “tell” that your house is not in order.

If you need to or will be appointing an external health and safety support service, ensure that you undertake due diligence on the provider to make sure you are getting a bespoke service and not something that is off the peg or generic. In addition, any provider should start by completing an initial status review to understand where your organisation is up to with health and safety compliance, document what is working well and where there are areas for improvement. If you would like to know more about health and safety compliance or require formal support in this regard, please take a look on our website at our compliance service Brabners Protect.

For more information on the issues discussed in this article, visit brabners.com