Health And Safety: The Corporate Implications

Syedur Rahman and Nicola Sharp consider how companies can
minimise the problems that can be posed by health and safety prosecutions.

For some reason, some people in business view the issue of
health and safety breaches as among the lesser problems that can confront them.
Which, for a number of reasons, is a huge mistake. And a potentially costly
one.

A breach of health and safety regulations is a criminal
offence. Any company or individual within such a company found to be in breach
of them will face prosecution by the Health and Safety Executive (HSE).  This
can mean a large fine for a company or an individual. An individual could also
face the prospect of imprisonment.

Health and safety breaches often lead to fines in the tens
of thousands of pounds. But where a breach is found to be due to a company or
individual deliberately breaking the law or being seriously negligent regarding
appropriate procedures that reduce the risk of injury, there is the possibility
of unlimited fines and/or imprisonment.

HSE prosecutions, like any other prosecution, will see the
size of the penalty vary from case to case; depending on the circumstances.

Health and Safety at Work Act 1974

The Health and Safety at Work Act 1974 (HSWA) outlines the
obligations on companies and individuals regarding workplace safety. Section 2
states that “It shall be the duty of every employer to ensure, so far as is
reasonably practicable, the health, safety and welfare at work of all his / her
employees.’’

Section 3 extends this employers’ obligation to the likes of
contractors and visitors to the site, while other sections relate to the care
and proper use of machinery, substances and premises. Section 7 imposes an
obligation on employees to act responsibly regarding their safety and the
safety of others.

Section 37 relates to offences committed by corporate bodies
and where directors, managers, secretaries or other similar officers of the
organisation have committed an offence.

The HSE states:

“If a health and safety offence is committed with the
consent or connivance of, or is attributable to any neglect on the part of, any
director, manager, secretary or other similar officer of the organisation, then
that person (as well as the organisation) can be prosecuted under section 37 of
the Health and Safety at Work Act 1974.”

This means, therefore, that if you are a senior figure in a
company where there has been a health and safety breach, you may be the person
that the HSE seeks to prosecute. The HSE will be looking to prove that the offence
was the direct result of that person allowing it to happen, turning a blind eye
to it or being ignorant or inattentive to the risk.

Help

Further down this article, we outline the possible
punishments for such a breach. For now, we will just say that such a situation
is a hugely serious one. It can lead to a person facing huge legal, business
and financial problems. If it is not handled correctly, everything a person
worked so hard for could be at risk.

For that reason, expert legal help must be sought at the
slightest hint of an investigation by the HSE or any other body. If you are not
represented by a legal team that is well-versed in this area of law,
experienced in dealing with the authorities in such investigations and capable
of mounting a strong, proactive defence, your chances of achieving a favourable
outcome will be limited.

This is the case whatever line of work you are in. Whether
you work for an engineering firm, an NHS body or any other private or public
organisation, the outcome can be serious if the problem is not managed
appropriately.

Penalties

Section 33 of HSWA creates 15 criminal offences regarding
the Section 2 and Section 3 breaches over people’s safety.

The Sentencing Council’s guidelines on penalties for such
offences recommend fines ranging from £50 to £10M. Such a huge range not only
indicates the scope for variation between sentences: it also illustrates the
potential to minimise the harshness of the penalty by building a shrewd, evidence-based
defence to the allegations.

In its document, “Health and Safety Offences, Corporate
Manslaughter and Food Safety and Hygiene Offences. Definitive Guideline’’, the
Sentencing Council outlines that the highest penalties will be imposed when the
defendant has:

* Failed to put in place recognised health and safety
measures.

* Ignored concerns that had been raised.

* Failed to make necessary changes after a previous
incident.

* Allowed a number of health and safety breaches over a
period of time.

A more lenient approach will be taken if health and safety
procedures were in place but were inadequate. The most lenient penalties will
be imposed if a company or individual had made the necessary efforts to address
the risk and / or there could have been no warning of the danger that only
later became apparent.

Factors

The behaviour of the defendant is one of a number of factors
considered when imposing a penalty. The degree of harm the defendant’s
behaviour caused and the financial resources of the accused will also help
determine the size of the fine.

There are also aggravating factors that could lead to a
heavier penalty: Was cost cutting involved? Was illegal behaviour concealed or
justice obstructed? Has there been fake documentation used or a failure to
comply with licences? Does the accused already have a poor health and safety
record?

However, a company or individual will be treated less
severely if they can point to a previously blemish-free health and safety
record, have self-reported the problem, voluntarily cooperated with the
investigation or took steps to remedy the issue.

These factors, all outlined by the Sentencing Council, have
to be seen as an attempt to make sure the punishment fits the crime. But a
defence team has to view them as an opportunity to argue their client’s case
point by point.

The approach to sentencing in health and safety cases gives
a defence scope to emphasise the relevant positive aspects of what went on at a
workplace. Use of expert witnesses, testimonials from colleagues or trading
partners and evidence either overlooked or discarded by prosecutors can all enable
a defence team to paint a fuller picture than that which is being created by
the prosecutors.

But such action can only be most effective if the right
legal help is brought in at the earliest possible stage.

More from Rahman Ravelli