TT Talk - Health & safety: can you afford not to comply?

Many companies through the global supply chain would see safety as primary importance; it is routinely discussed at Board level and embedded in culture through the organisation. Nevertheless, incidents occur. This article ‘takes the temperature’ in the UK setting.

Despite considerable and laudable focus on safety through the industry, frequently engaging fully and successfully with the workforce, incidents sadly continue to be recorded globally, both in developed and less developed environments.

Inevitably, entities across the globe may be expected to seek to implement and follow through good practices in protecting their workforce, where something does go wrong. Further, post incident enforcement by the relevant authorities in certain jurisdictions can ensure that businesses remain highly motivated to continue improving.

Health & safety enforcement – UK case study

By way of example, since the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline (the Definitive Guideline) came into force in the UK in February 2016, health and safety prosecutions have been placed firmly on the map. Businesses operating in the UK should be aware of the potential penalties of getting things wrong when it comes to health and safety in the workplace.

Since inception, conviction rates have been high and the fines headline-grabbing. What are the facts behind the headline numbers?

Since inception, conviction rates have been high and the fines headline-grabbing

95% conviction rate

The severe fines and penalties for directors and companies have had a significant conviction to prosecution rate of 93-95% over the last five years. This means that when a prosecution is commenced the Health and Safety Executive (HSE) has a 95% chance of obtaining a conviction. Added to this, a full 8% of convicted directors received a prison sentence.

Guilty until proven innocent

The extraordinarily high conviction rate is in a large part because of the way the UK regulatory system has been constructed. In respect of almost all criminal offences in the UK, the accused is innocent until proven guilty. This basic tenet of the English Criminal Justice System is effectively reversed in health and safety prosecutions.

Section 40 of the Health and Safety at Work Act 1974 (HSWA) places the burden of proof on an accused in offences consisting of a failure to comply with a duty or requirement to do something "so far as is practicable, or so far as reasonably practicable, or to use the best practicable means to do something".
The Act provides that the accused must prove that it was not practicable, or not reasonably practicable to do more than was done, or that there was no better practicable means than that used to satisfy the duty or requirement.

Fines continue to rise

Despite the fact that turnover is widely known to be a crude measure of an entity’s profitability, fines are based upon a company’s turnover for the last three years. From the Definitive Guideline, fines may range from £500 to £10 million for health and safety offences, and up to £20 million for corporate manslaughter, with higher, potentially unlimited fines for very large organisations.

Definitive guideline health and safety fines

[Definitive Guideline – extract]

In 2021, four notable fines were handed out in the UK under the Definitive Guideline – all for corporate regulatory breaches, though not all related to health and safety matters.

Southern Water received a £90 million fine for thousands of illegal discharges of sewage that polluted areas of Kent, Hampshire and Sussex.

Tesco (supermarket) received a £7.56 million fine, although considered insufficient, with the judge calling for an amendment of the guideline to reflect such large companies. The fine was for the failure by Tesco to put in place safeguards to prevent the sale of out of date food. Interestingly, the judge commented adversely on the vast resources deployed by Tesco to avoid conviction.

W H Malcolm, operators of the Daventry International Rail Freight Terminal, received a £6.5 million fine related to the death of an 11 year old boy, who had been able to gain easy access to the rail infrastructure, climbing on top of a stationary freight wagon, incurring a fatal electric shock from the overhead line.

British Airways was fined £1.8million for serious injuries in a baggage trolley crush. An employee was struck by a tug vehicle that was transporting a train of baggage dollies and knocked under another passing tug with dollies loaded with luggage.

The average fine

While fines at the top end may be newsworthy, the average fine for a convicted company remains high; in the construction industry for 2018/19 this average has been calculated to be £107,000 per conviction.

Health and safety prosecutions on the decline

In 2018/19, the HSE prosecuted 44% fewer cases (361) for breaches of health and safety law across all sectors against the 644 cases prosecuted in 2015/16. Its annual report for that year said a lack of qualified inspectors and an increase in time-consuming legal hearings was responsible for the drop. The downwards trend continued in 2019/20 with the body successfully prosecuting 336 cases in 12 months.

Self-regulation as the future

With a 95% likelihood of conviction and an average fine of £107,000, any entity needs to consider how to maintain compliance. It might be said that the initial high prosecution rate and headline grabbing fines were part of a ‘stick’ rather than carrot approach to encourage broad self-regulation within the regulated sector.
Nevertheless, the factors giving rise to a reduction in health and safety interventions may not be as simplistic. It is clear that the potential penalties leave no room for complacency.

It is clear that the potential penalties leave no room for complacency

We gratefully acknowledge the assistance in the preparation of this article of Tristan Harwood, Barrister, Thomas Miller Law.

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If you would like further information, or have any comments, please email us, or take this opportunity to forward to any others who you may feel would be interested.

Mike Yarwood

TT Club

Date02/08/2022