3 Core duties on Employer Common law duty to take reasonable steps to avoid foreseeable risks to employeesProvide safe place of workProvide safe systems of workProvide safe plant and equipmentProvide competent staff
4 Core duties on Employers Health and Safety legislationStatutory duties imposed upon employers through primary legislationHealth and Safety at Work Act 1974Secondary legislation through RegulationsManagement of Health and Safety at Work Regulations 1999
5 Risk management Why is it necessary? To comply with core duties To control health and safety risks in your business and help prevent accidents and ill healthIntegral part of the business and its success
6 Risk management What is it? Process of assessing risks that arise in the workplacePutting in place sensible measures to control identified riskImplementation, monitoring and review of those measures
7 Risk Assessment Identify the hazards Decide who might be harmed and howEvaluate the risks and decide on precautionsRecord your findings and implement themReview your risk assessment
8 Risk AssessmentEngage all employees in the process - from management to shop floorCheck that what you say you do happens in practiceEnsure employees have the right trainingEnsure plant and equipment is properly used and maintainedIs there evidence of compliance with Health & Safety law
9 Accident Investigation Criminal liabilitySanction is punishment for breach of the criminal lawCivil liability - law of negligence / statutory duties.Sanction is compensatory - damages for injury/loss
10 Accident Investigation The Enforcement Authorities (criminal liability)Health & Safety ExecutiveLocal AuthorityCrown Prosecution Service
11 Accident Investigation Powers of InspectorsEnter premisesDirect work areas to be undisturbed during investigationExamine and investigate as necessaryRequire production of documentsDisable dangerous plant
12 Accident Investigation Require persons to provide information/ answer questionsS9 Criminal Justice Act (voluntary witness statement)S 20 H&SWA (compelled witness statement)Interview under PACE (suspects)
13 Accident Investigation Pitfalls in practiceInterviews under caution (suspect - senior management)RIDDOR formsDisclosure to HSE of potentially privileged documentsMust be in a position to demonstrate evidence of safety management systems/policies/risk assessments/training records
15 Criminal Liability – who gets charged? Health & safety offences can be committed by a company, its directors and managers personallyProsecution of individuals – consideration is given to the management chain and to fix criminal liability upon those who are in the position of authority and who have the power to decided corporate policy and strategy.
16 Criminal Liability – Statutory framework Health and Safety at Work Act 1974S2 - Duty of every employer to ensure ,so far as is reasonably practicable, the health, safety and welfare at work of all his employeesS3 – Duty of every employer to conduct undertaking to ensure, so far as is reasonably practicable that persons not in his employment are not exposed to risks to their health or safety (subcontractors/public)
17 Criminal liability – Statutory framework Health and Safety at Work Act 1974S37 – Offences by bodies corporateImposes personal liability where an offence by a company is committed with the consent and connivance of, or to have been attributable to neglect on the part of any director, manager, secretary or other similar officer he as well as the company shall be guilty of that offence
18 Criminal liability – Statutory framework Test for neglect – whether or not the Defendant ought to have been aware that a particular practice occurred – not whether or not he actually knew.Consent and connivance - imply both knowledge and a decision made on such knowledge – (turning a blind eye)
19 Criminal liability – Statutory framework Breach of specific Health & Safety Regulations;Management of Health and Safety at work Regulations 1999Provision and Use of Work Equipment Regulations 1998CDM Regulations 2007Work at Height Regulations 2005
20 SentencingFines should reflect the gravity of the offence and the means of the DefendantIn assessing the gravity of the breach consider how far short of the appropriate standard the Defendant fell
21 Sentencing Aggravating factors Safety compromised for profit Failure to respond to warningsWhether death or serious injury has occurred
22 Sentencing Mitigating factors Prompt admission of responsibility Co operation with enforcement authoritySteps to remedy deficienciesNo previous convictions
23 Sentencing Health and Safety (Offences) Act 2008 Fine – £20,000 for each offence in the Magistrates Court, unlimited fine in the Crown Court;ImprisonmentUp to 12 months Magistrates CourtUp to 2 years in Crown CourtInvestigation costsDirector disqualification if convicted of an indictable offence in connection with the promotion, formation or management of a company (The Company Directors Disqualification Act 1986)
24 Corporate Manslaughter Pre 6 April 2008Gross negligence manslaughterDifficult to successfully prosecute large companies – only 6 convictions between mainly of small owner managed companies.Conviction required ‘directing mind’ of organisation to be identified with requisite culpability (a senior individual who embodied the company in his actions)Herald of Free Enterprise in 1987 to rail disasters at Hatfield and Potters Bar failed to lead to successful convictions despite clear indications of safety management shortcomings
25 Corporate Manslaughter Corporate Manslaughter and Corporate Homicide Act 2007Act - applies toCompaniesTrades Unions and employers associations if employerPublic bodies – local authorities,NHS bodiesLLP’sPartnership’sGovernment departmentsPolice forces
26 Corporate Manslaughter The position of individualsOffence concerns corporate liability of organisations not individualsProsecution is against the organisation itself not directors, senior managers or other individuals
27 Corporate Manslaughter New offenceDoes not impose any new duties – all existing duties under the civil law to ensure safe systems of work, safe plant and machinery, safe workplaces, and that processes for managing health & safety are adequate, remain unalteredRemoves the obstacle of the ‘directing mind’ principle
28 Corporate Manslaughter Company guilty of corporate manslaughter if:-The way in which its activities are managed or organisedAmounts to a gross breach of a relevant duty of care owed to deceased andCauses a person’s death; and(2) The way in which its activities are managed or organised by its senior management is a substantial element in the breach
29 Corporate Manslaughter Two stage approach1) Must owe a duty of care to deceasedAs employerOccupier of premisesSupplier of goods /services; carrying out of construction or maintenance; carrying out of any other activity on a commercial basis; use or keeping of plant / vehiclesBreach of duty must be gross – conduct far below what can reasonably be expected of the organisation in the circumstancesJury must consider failure to comply with H&S legislation; seriousness of failure and risk of death that failure posed
30 Corporate Manslaughter 2) Senior managersA substantial part of the failure must have been at a senior levelSenior level means the people who make significant decisions about the organisationLinks into the importance the Act places upon a ‘safety culture’ within the organisationAct focuses on systems of work and away from individual fault
31 Corporate Manslaughter SentencingUnlimited finePublicity Order – organisation must publicise the fact of convictionRemedial Order – requiring organisation to address the cause of the fatal injuryProsecution costs
32 Civil liability Core duties Common law duty of care in negligence Statutory duties under RegulationsBreach of which gives rise to a claim in damages.
33 Civil claims for damages Letter before action under the Personal Injury ProtocolMatter referred to employers liability insurerInvestigation into liabilitySettlement?
34 Civil claims for damages – Litigation Statements of Claim and DefenceDisclosureWitness StatementsExpert EvidenceTrialAssessment of damages
35 Denison Till solicitors A leading Yorkshire-based law firm, with UK and international clientsEight specialist departments comprising: corporate and commercial, commercial property, employment, dispute resolution, construction, ecclesiastical, family and wills & trustsAccredited by Law Society, Investors in People and legal directories Legal 500 and Chambers & Partnersrebecca
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