Current UK health and safety regulations impose a number of responsibilities under the current criminal law regime on the "dutyholder" – most commonly the employer or owner of a business who has the duty to secure the health and safety of employees and non-employees. Similar duties extend to the person or company in control of a building (if not the employer or owner) to ensure safe access and egress and safe use of equipment or substances.
The 2016 Health & Safety Sentencing Guidelines introduced a significant increase in the level of fines that can be imposed on companies and employers following convictions for health and safety and environmental breaches – often in the region of £1 million per breach for organisations with a turnover of £50 million or more. It is therefore imperative that employers understand the implications of their employees being involved a health and safety incident or failing to appreciate the associated regulatory risks within or around their workplace. The Health & Safety Executive (HSE), the main regulator in the UK responsible for the enforcement of health and safety breaches, is increasingly taking enforcement action against companies who fail to properly assess and mitigate risk and take appropriate action to prevent health and safety incidents. This can result in significant fines, as well as loss of reputation and civil claims based on negligence on the part of the employer.
The legislative approach
The Health and Safety at Work etc. Act 1974 (HSWA) sets out the framework for managing health and safety in the workplace. Section 2 HSWA imposes an overarching (and sometimes onerous) duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare of employees. Section 3 HSWA extends this duty to secure the health and safety of all non-employees – including members of the public and trespassers. This duty is caveated by the requirement to do what is "reasonably practicable". This essentially means undertaking a cost/benefit analysis - employers are not expected to completely remove all workplace risks. They must assess the risk level, what can be done and what it is reasonable to do in light of the financial cost, resources and time taken to mitigate a proportionate level of risk.
Further, the Management of Health and Safety at Work Regulations 1999 require employers to assess their work environment and implement appropriate controls to manage potential health and safety risks. As such, employers should put controls in place to prevent incidents, rather than reacting to incidents after they happen. The HSE will prosecute employers who fail to have adequate health and safety measures in place, even where no accident or injury has actually occurred – the focus is on managing "risk of harm", rather than any actual harm caused.
What measures should employers be taking?
It is important that employers assess the risks specific to their workplace environment and take preventative legal advice where needed to ensure that their policies and procedures are adequate to discharge their duty to take all reasonably practicable steps to address all relevant risks.
In order to satisfy this requirement, employers should ensure that:
- A full risk assessment is carried out to consider all health and safety risks that might apply in that particular workplace. Bear in mind that workplace hazards can evolve over time, meaning that risk assessments will need to be carried out periodically. A failure to have a suitable and sufficient risk assessment in place is an easy (and often the most common) breach for the HSE to prosecute.
- Adequate health and safety policies and procedures are in place. These must be tailored to the individual environment; boilerplate policies will not be sufficient. Rather, policies should reflect the findings of the risk assessment.
- Employees are given full training, updated as and when required, on relevant policies and procedures and maintaining safe workplace practices.
- Legal advice is sought if a health and safety incident or near-miss does occur. This will support an appropriate response and may assist with liaising with the HSE.
- The appropriate insurance is in place including director and officer cover. Insurance polices should cover a civil claim following injury being sustained at the workplace and may also cover legal expenses, but it will not cover the cost of a criminal fine.
- Any possible impacts of a health and safety investigation or prosecution on the company's reputation and brand have been considered. The suggestion that a company has flouted health and safety regulations may affect the company's ability to hire talented employees and work collaboratively with other organisations, thereby impacting its ability to generate income.
Enforcement action: relevant examples
These recent health and safety prosecutions demonstrate the importance of proactively assessing risk and putting in place appropriate procedures to mitigate the risk of injury and the possibility of prosecution:
- In August 2021, WH Malcolm Limited, operators of Daventry International Rail Freight Terminal, was fined £6.5 million after an 11 year old boy was killed by electric shock after gaining access to a depot with his friends to retrieve a football. He was able to climb on top of a stationary freight wagon, where he received an electric shock from the overhead line. During the trial, the court heard how WH Malcolm failed to implement measures to prevent unauthorised access to the site via unelectrified sidings and were routinely placing the wagons under the electrified lines for long periods of time.
- In June 2022,Carlsberg was fined £3 million after a worker was killed during an ammonia leak at its UK brewery. The worker died after inhaling ammonia gas that had leaked from the refrigeration system at the Carlsberg brewery. The HSE said Carlsberg had failed to put in place appropriate isolation controls to prevent exposure to ammonia before work started to remove a compressor from a refrigeration system. While the compressor was being removed, there was a large, uncontrolled release of ammonia for several days. Another worker was seriously injured and 20 other people, including emergency service workers, needed medical attention. The HSE concluded that Carlsberg had failed to put proper controls in place.
- In August 2022, technology firm Dyson was fined £1.2 million after an employee sustained head and chest injuries when he was struck by a 1.5 tonne milling machine he was trying to move. The employee narrowly escaped more serious injury or death. An investigation by the HSE found that Dyson failed to provide suitable and sufficient information, instruction, and training to those undertaking the task. They also failed to adequately assess the task and devise a safe system of work to ensure the machine could be moved safely.
How Mishcon de Reya can help
We have significant experience representing companies being investigated or prosecuted for breaches of health and safety legislation. Additionally, we regularly advise both corporate clients and senior executives on health and safety and regulatory compliance in the workplace in order to avoid the wrath of the regulators.
- Due diligence reviews of company policies and practices, with guidance on how to demonstrate compliance through best governance and leadership practice.
- Dealing with incident response protocols, including supporting corporate clients and their senior individuals in the immediate aftermath of an incident. We also assist with the management of legal and reputational risk and provide representation throughout the investigation and prosecution process (interviews with regulatory authorities or police, disclosure and trial or inquest).
- Conducting a 'healthcheck' of the company's policies and practices. A hypothetical scenario tests how systems and documents would stand up to scrutiny in the event of an incident. We can help to test how your organisation and its senior individuals would deal with the immediate aftermath of an incident.
- Provide tailored training, seminars and webinars for companies and employees on health and safety compliance and how to protect themselves and their organisation.
- Mock trials and interviews under caution, demonstrating to senior executives what can happen when a health and safety incident occurs within the workplace and the legal procedures that can follow.
- Responding to incidents, including supporting clients in the immediate aftermath, managing reputational and legal risk, liaising with the HSE and managing the investigative process and defending companies being prosecuted.
Most employers will have some measures in place to mitigate risks to the business and their employees. However, a proactive and preventative approach to existing and emerging health and safety risks will not only ensure 'best practice', but can help to avoid huge financial penalties after a successful prosecution.