The Health and Safety Executive (HSE) have recently announced that they have increased the fee they charge to investigate and advise on health and safety matters. James and Sarah consider the implications of this.

 Fee For Intervention (FFI) was established by the HSE to recover some of the costs incurred by them in identifying breaches by persons or organisations (‘dutyholders’) and assisting in putting them right.

Previously, the FFI hourly rate was £129 which has now been increased to £154, a 19% increase. The increase came into force from 6 April 2019.

Under this scheme, the HSE will recover costs from non-compliant dutyholders when a breach has been identified and needs to be rectified.

The scheme previously saw a slight increase in 2016 from £124 per hour to £129, however, we now see a much higher increase as a result of, according to the HSE, inflation and recovering its costs in completing this regulatory function. The reality is the HSE are now seeing the revenue from FFI as a means to bolster its reduced budget.

It’s worth reviewing ‘when an inspector calls’, a leaflet that can be found on the HSE website, http://www.hse.gov.uk/pubns/hsc14.pdf, to ensure everything is in order to prevent the service of a FFI notice. Otherwise it can be an expensive visit!

Whilst to charge you a FFI a material breach has to be discovered, the reality is an inspector can, and often does, find some issues when inspecting premises or activities. The bill you ultimately can be facing may be very costly, running into the thousands.

There is a challenge/appeal procedure but as is often the case prevention is better than cure!

James and Sarah consider two recent Court of Appeal Hearings and its significance following National Asbestos Awareness Week.

 

Two recent Appeal court hearings have reduced the fines imposed on the defendants for different reasons. Would you benefit from the courts stance?

 

In the first case, a company, London NPS, argued that they should have been treated as a small organisation rather than a large organisation under the Sentencing Guidelines. This would have a direct effect on the fine imposed on them. The Sentencing Guidelines are used by the courts to determine the suitable sentence passed on a defendant. The Court of Appeal ruled in the Appellant’s favour on the basis that each incorporated company is a separate legal entity. This is significant and useful to know when an organisation is operating in a group structure. It shows that the courts will treat the offender as the company that was guilty of the act. The fine was reduced from £370,000 to £50,000 as a result of this. This is not just applicable to asbestos matters, but also health and safety matters as the same considerations apply to company sizes. Smaller companies with larger groups of companies may be protected from paying for subsidiary company’s mistakes.

The second appeal concerned the court’s determination of the level of the “likelihood of harm” in a case appealed by the Squibb Group, again this relates to the Sentencing Guidelines. The court criticised the Judge that sentenced the matter for failing to explain why he had disregarded scientific evidence submitted at the trial by the defendant. The court commented that long term risks of this nature are inheritably difficult to assess and quantify and any estimate must be subject to a wide margin of error. The court went on to say that this is not a reason to reject or disregard whatever scientific evidence is available and a rational approach for a Court to adopt these circumstances is to rely on the best evidence that it has. The court reduced the fine from the likelihood of harm from medium to low and reduced the original £400,000 fine to £190,000. The guidelines set out the seriousness of the offence by considering a number of factors, including harm. The significance of this case is relevant for any business that has had work done and/or obtained reports in respect of asbestos, or indeed other issues, as these assist in cases such as this. As with most things, preparation is the key here and by keeping reports and other documents they could assist many years in the future.

Although asbestos was banned in 1999, it is still present in at least half a million buildings constructed before this time. It is important that companies are aware of their responsibility to manage exposure to asbestos whether it’s by creating an asbestos survey, regularly reviewing any work that is done to a property, and sharing information with those affected by their use/role in the building.

If you are concerned or not sure whether you are responsible for managing asbestos exposure and to what extent in relation to your legal obligations then please contact James or Sarah to discuss.

B&Q have pleaded guilty to two charges under the Health and Safety at Work etc Act following an incident at their Kidderminster store which resulted in a pole from a promotional display falling on a customer, causing serious head injuries.

The court fined B&Q £300,000 and ordered it to pay costs of £8,000.  The court heard that B&Q had failed to examine the display as part of daily checks at the store, which would have shown that retainer clips had not been fitted, which meant the signage was not secured.

It’s clear from this case the importance of checking your premises regularly, particularly those temporary structures that may be marketing/advertising displays.

Although the fine appears large enough, B&Q managed to reduce the potential fine by quickly taking action following the accident; this included removing all of the display banner poles to ensure that a similar incident would not occur. In addition it pleaded guilty to the offences which allowed a reduction in the overall fine handed down by the court by up to a third. If not for these prompt actions the fine would have been much higher.

The lesson from this case is any change within a business should be assessed for risks by way of risk assessment and regularly reviewed. Temporary changes to your premises or operations which last for one day or for a couple of weeks still need the same level of scrutiny as long established fixtures and processes. Whilst in this case the source of the accident was an incorrectly constructed advertising display, how many short term measures do you introduce to your business each year and how carefully do you check their health and safety impact of doing so?

James and Sarah consider the Sentencing Council’s report published this month into the Health and Safety sentencing.

The sentencing guidelines are used in courts to promote greater consistency in sentencing for health and safety offences. The guidelines came into force in February 2016. The Sentencing Council have now prepared a report into the effectiveness of the guidelines.

As anticipated, fines have increased overall for organisations after the guidelines came into force. In particular, fines have seen a considerable increase for larger organisations, those that have an annual turnover of £50 million and over. The report states that in the 10 months prior to the sentencing guidelines being in place, the median fine amount was £12,000. In the 10 months after the sentencing guidelines were published, the median fine amount increased to £60,000. That’s an increase of 400%! Fine amounts increased for all sizes of organisations, although the Sentencing Council have commented that they did not anticipate fines to rise for individuals – they have!

Mitigating and aggravating factors in the context of sentencing are those circumstances which may reduce(mitigating) or increase (aggravating) the sentence accordingly. Interestingly, the report states that mitigating factors were cited much more frequently than aggravating factors (90 percent of cases compared with 50 percent, respectively). On average, around two mitigating factors were cited in the report considered. This contrasts with aggravating factors where, on average, less than one aggravating factor was cited in each case. The most common aggravating factors cited were ‘previous convictions’ and ‘cost-cutting at the expense of safety’. We cannot stress the robust stance courts take when ‘cost cutting’ is demonstrated as a factor in the offence.

So what should we take from this? Clearly fines are increasing. The most stark difference is that of fines given to any organisation regardless of size are now routinely significant and in some cases terminal for the viability of that business.

The likes of Poundstretcher, Tata Steel, Tesco, and Stagecoach have all been handed fines of £1 million or more after breaching health and safety law in the last year. The £1 million fine is becoming the new ‘norm’ in the health and safety arena.

On Tuesday 7th May, an updated version of the Licence Conditions and Codes of Practice (LCCP) was issued which introduced new age and identity verification rules. The main changes are as follows:

  • New licence condition 17 which sets out minimum requirements for identity verification
  • Change to the social responsibility code provisions 3.2.11 for age verification for remote betting and gaming
  • Social responsibility code provisions 3.2.13 for age verification for some remote lotteries

Affected operators must from the 7th May, have verified the name, address and date of birth of any customer and will need to have completed this before allowing a customer to gamble. Unverified customers must not gamble.

The GC has also published important new framework for measuring gambling harm amongst children and young people which gives a better understanding of the ways that harms from gambling can impact upon the health relationships and finances of young people. The launch of this new framework comes a week after the commission launched the new national strategy to reduce gambling harm.

The GC has also been busy meeting with a number of operators to discuss anti-money laundering policies and procedures and what is expected of the operator by the GC. These meetings are not strictly classed as formal inspections and are part of a wider GC approach to inform operators as to what is expected. No doubt those operators who have been through regulatory proceedings with the GC will have experienced the range of questions asked by GC officers and it will be interesting to see how those operators who have not been through any similar proceedings deal with the issues raised in the meetings.

GC officers are very clear on a number of key points:

  • Responsibility for compliance sits both corporately and individually. The Board of Directors have responsibility as of course does any compliance committee and MLRO but also those with personal management licences who are in senior positions which may not qualify as key qualifying positions have individual responsibility to ensure compliance.

  • Customer interactions remain poor, both in the recording of them and the quality of the interaction. It is simply not enough to say “spoke to Brian and everything okay” as both the conversation with “Brian” and the recording of it should be more detailed.

 

  • Operators are still not differentiating between source of wealth and source of funds. Source of wealth does not show where the funds come from and once trigger limits have been hit, operators are expected to have personal bank statements from customers showing that funds are coming out of a personal bank account and that there is sufficient funds in the bank account.

  • Keeping up to date with all changes and requirements is still not up to the standards expected. All staff but in particular, all licensed staff are expected to regularly keep themselves up to date with any changes to regulations but also with any GC cases and operators should learn from GC reports of ongoing cases which can be found on their website.

  • The role of the MLRO and those involved in the wider AML team has changed significantly and greater resource is required to enable the MLRO and their team to ensure compliance with the regulations away from any commercial pressures.

All of the above means that it remains a very challenging team for the industry which must learn to adapt and evolve its policies and procedures so as to ensure compliance and avoid regulatory action and sanctions.

Take notice of notices!

Posted by Woods Whur | Regulatory

The operator of a wedding venue in Cheshire has recently been jailed for 20 months for breaching fire safety regulations.

The operator, Mr Mohammed Isaq, had previously been in trouble with the fire authorities in 2012 for a number of fire safety breaches and which he was required to take action and did not do so.

He received a fine of £23,815.00, but it would seem that this did not alter his attitude to fire safety and the regulatory authorities.

He fell foul of Cheshire Fire Service against recently when recently he failed to comply with a variety of notices served on him and the premises to improve fire safety arrangements.

As a result of his non-compliance he is now sentenced to 20 months in prison for these offences.

Whilst it could be argued that he was foolish to allow non-compliance to arise a second time and then when the breaches were pointed out, to do nothing about it, it also demonstrates the seriousness in which the Courts treat these matters.

A fire broke out at the premises in March and whilst no-one was injured, significant damage was caused. It could be argued that in addition to the prosecution, the premises and the revenue it generates have permanently or certainly temporarily been extinguished – pardon the pun!

As I have mentioned previously in other articles, the mind-set of a number of operators needs to change when dealing with regulators.

Enforcement action and court proceedings are not just reserved after a fall, trip, fire or fatality. Regulators, can and do, take action where simply a risk exists, which may never manifest itself into an injury or other obvious consequence.

The need to take prompt advice and action when notices are threatened or served is crucial in situations such as the one outlined above. Whilst experience shows that notices are not always served correctly, there needs to be prompt action taken to assess them and simply ignoring the importance of a notice, even if incorrect in part, or overall, is no solution to the problem.

In addition, one of the main factors that Courts take extremely seriously when sentencing offenders is their previous convictions and linked to that their safety record whether that be good or bad.

Therefore, if you are unlucky enough to have a conviction or there is evidence of non-compliance and you are subsequently prosecuted, this undoubtedly will effect whatever sentence the Court hands down. Our advice is clear. You should be unrelenting in ensuring compliance to avoid that conviction in the first instance and if you are unlucky to receive one, to redouble your efforts to prevent further convictions which may avoid you taking up residence in the next cell!

On 17 July 2016 at the Brackton Centre, part of NHS Oxley’s Foundation Trust, a healthcare assistant and a psychiatric nurse were attacked by a service user with a knife.

The Health and Safety Executive (HSE) investigated the NHS Trust following this incident which highlighted that there was no patient specific risk assessment identifying the risks posed by a patient and the measures required to control those risks prior to admission at the Centre.

Another issue that was identified by the HSE was that of the use of knives. The HSE found that staff members were entering and exiting the kitchen area several times whilst knives were in use and no instructions or control measures were put in place regarding them.

Due to the impact of the two employees that were stabbed, but also other employees that witness the incident, the NHS Trust was fined £300,000 and ordered to pay costs of £28,000.00 after pleading guilty to breaching section 2 sub section 1 and section 3 sub section 1 of the Health and Safety At Work Act.

Although this case concerned an NHS Trust, the comments of the Judge in sentencing are applicable to many other types of business. In particular, this is relevant for those employers that may have employees engaged as a lone worker. There are always a number of risks involved when employing staff and a risk assessment should be carried out at the suitable time to identify any risks that may be present. A lone working policy is essential should employers find themselves in circumstances that employees may not have other colleagues/managers around them when carrying out their duties as an employee.

It is important for all employers to determine the level of safety of operations by way of completing a suitable risk assessment for the action that is required by the employee. This not only allows for consistent record keeping, but also can be used as an effective training tool for the employees to recognise the available risks and the conduct of the actions required from them.

If you want to discuss this further or have any queries in relation to employee safety, then please contact James Thompson or Sarah Frow on 0113 234 3055 or james@woodswhur.co.uk / sfrow@woodswhur.co.uk.

2018 has seen two important rulings in respect of legal privilege as the Courts continue to interpret the scope of legal professional advice privilege and litigation privilege.

Litigation privilege applies where a document is created for the purpose of obtaining information or advice. The most recent ruling from the Court of Appeal concern West Ham Football Club and E20 (the Landlord of the Club’s Olympic stadium home). E20 claimed privilege over a number of emails exchanged between board members and stakeholders.

The Court of Appeal noted that the sole ground upon which privilege was being asserted by E20 was that the emails were created with the dominant purpose of discussing a commercial settlement of the dispute in litigation with West Ham was in contemplation. The ruling states that such “purely commercial discussions” could not be protected by privilege.

This ruling serves a reminder that organisations should be cautious when internal documents are created before or during litigation.

The latest figures released by the Health and Safety Executive show that based on their provisional data, the HSE have recorded a 144 persons dying in workplace accidents in 2017/2018 period. In addition to this, 33 members of the public were killed by workplace activities during the same period.

The figures show that there has been an increase on the previous year from 135 deaths and whilst the HSE will seek to reassure us this is an increase that could be dealt with by statistical variances, it may also be something more troubling.

The figures show that the longstanding downward trend which began in 1981 where 495 persons were killed at work has levelled off. In fact the number of deaths has remained broadly flat for some time and now we have an increase.

The development has always been of concern to those who regulate health and safety in the UK. Their strategies of recent years have been designed to ensure the current plateau of deaths does not turn into an upward trend.

Is there anything behind these statistics that we need to worry about?

Does it perhaps suggest that the strategies and campaigns to reduce the number of fatal accidents are no longer valid, is there an increased acceptance by those in the workplace that health and safety arrangements are accepted and complied with on paper and perhaps not in practice, or is it simply that as activity in the economy increases from the days of recession the chance of more accidents increase based on that increased activity?

The answer may be a combination of one or more of these, or some other unknown factor or factors. However, the simple truth is that organisations are still exposed to the possibility that one of their workers could be killed whilst at work or a member of the public affected by their activities could die as a result of them.

Those of you who are playing the odds may still think there are good chances that an organisation will not be affected by fatal accidents. However, these tragic events do befall organisations on a daily basis and without a comprehensive system of health and safety arrangements, organisations have no hope of not just of preventing an accident in the first instance, but certainly not defeating any criminal prosecution or civil proceedings that may well follow it.

If cynically, we accept that you can never remove the possibility of all accidents and some of them becoming fatal accidents, then the idea is that an organisation and those managing it must do all that they can to ensure that their systems protect themselves and the organisation from the inevitable scrutiny that follows such an accident and/or death.

Of course, organisations can exist in the most dangerous field of activities for decades without any issue, unfortunately with the consequences of conviction for corporate manslaughter meaning fines running into the millions or terms of imprisonment for individuals who own and/or manage organisations, I would not be advocating reliance on the law probability as your best defence as opposed to a well-constructed health and safety management system!

£100,000 or 10 minutes?

Posted by Woods Whur | Regulatory

Colchester Borough Council brought a prosecution against Stonegate Pub Company following an investigation that found a cellar door was found to be defective.

Stonegate Pub Company pleaded guilty to breaching the Health and Safety at Work Act and, in addition to fine mentioned above, were ordered to pay costs of £3,792.00.

This incident again highlights the importance of being pro-active when it comes to health and safety.

Colchester Borough Council investigation revealed that the goods delivery to the premises had not been risk assessed. Simple, routine and regular tasks such as deliveries need to be assessed.

It is so important that any risk is assessed accordingly to protect the safety of both customers and employees of an organisation.  The advisors consequence are fines such as this why risk a fine when 10 minutes of your time could make the difference between compliance or court.

If you are not sure of your responsibilities, then speak with James or Sarah on 0113 34 3055 / james@woodswhur.co.uk / sfrow@woodswhur.co.uk