Legal Update 16 May 2019 IOSH North Wales

Legal Update 16 May 2019 IOSH North Wales

Legal Update 16 May 2019 IOSH North Wales Branch Agenda

Fee For Intervention (FFI) Prohibition Notices Chevron RIDDOR NEWSFLASH: Workplace Exposure Limits Sentencing Guidelines: Sentencing Council Review H&S Sentencing Appeals Against Sentence Fee For Intervention Increase from 129 to 154

per hour Effect from 6 April 2019 15.1m income vs. 17m cost of administering (2017/2018) Emphasises importance of proactive approach to H&S and prioritising compliance Prohibition Notices Chevron The Facts? 23 April 2013 - HSE took the view that stairways and gratings leading to

helipad weakened by corrosion Prohibition Notice served - Chevron ordered to stop using the stairways Some of the metalwork was removed for testing by Chevron and those tests confirmed that the metalwork met the relevant British Standard and was not unsafe Challenge?

Chevron appealed against the Notice Employment Tribunal cancelled the Notice HSE appealed but cancellation affirmed Conflicting E&W judgment : - Rotary Yorkshire v Hague [2014] EWHC 2126 (Admin): only evidence available or which could reasonably have been available to the HSE Inspector could be taken into account when deciding an appeal Prohibition Notices Chevron cont.

Decision? Supreme Court upheld the previous decisions Ruled that later evidence can be taken into account when determining an Enforcement Notice appeal Lady Black said that: When the inspector serves the Notice, section 22 makes clear that what matters is that he is of the opinion that the activities in question involve a risk of serious personal injury. If he is of that opinion, the Notice comes into existence. However when it comes to an appeal, the focus shifts. The appeal is not against the inspectors opinion, but against the Notice itself . The Inspectors opinion about the risk, and the reasons why he formed it and served the Notice, could be relevant but I can see no good reason for confining the Tribunals consideration to the

material that was, or should have been, available to the inspector." HSE Review of RIDDOR Currently meets its objectives, remains fit for purpose and could not easily or desirably be replaced with another system. Recommendations: Narrow the scope of Reg. 5 (injuries to non-workers) to align with Reg. 4 (injuries to workers) Expand the list of reportable occupational diseases Simplify and clarify existing RIDDOR guidance

HSE not taking recommendations forward at this time. Workplace Exposure Limits Reintroduces biological monitoring guidance values Implement EU changes from 21 August 2018:

New WELs / entries New 8-hour time weighted averages New short term exposure limits New skin notations Reductions to existing WELs Transitional arrangements until 21 August 2023 HSE is currently consulting on revisions regarding carcinogens and mutagens. Sentencing Impact Assessment

Fine amounts imposed on organisations, 10 months preguideline compared with 10 months postguideline Sentencing Impact Assessment Median fine imposed 16 months pre-guideline compared with 16 months post-guideline Sentencing Impact Assessment Sentence outcomes for offenders sentenced for health and safety offences (2011-2017)

Sentencing Impact Assessment Fines imposed on individual offenders 10 months preguideline compared with 10 months post-guideline ATE The Facts Leading used truck and trailer specialists Used scrap metal dealer to dismantle trailers for many years worked from a number of premises Didnt pay him for work but he was allowed to keep the metal and sell it for scrap Scrap metal merchant hit hard times so ATE allowed him to use part of their premises to carry on his business he paid them 50 per

trailer in lieu of rent. Debate as to whether defined area. Some debate over method used (albeit involved FLT to provide support) Scrap metal merchant fatally injured when trailer he was dismantling fell and struck him on the head No witnesses ATE - Plea

Initially pleaded not-guilty no responsibility for contractors work / method Later pleaded (on invitation of HSE) guilty to Reg 3 MHSWR (s. 3 HSWA dropped) on basis didnt provide written risk assessment for few occasions ATEs own employees completed same task (albeit using different method as had crane available) HSE criticised contractors method but no criticism of ATEs own method

ATE / HSE agreed: Low culpability Level A harm (ATE said low likelihood, HSE said medium) Offence had more than minimal, negligible or trivial connection with the accident leading to Mr Prices death but that it was not a major cause on basis that possible contractor would have changed his method if hed seen ATEs risk assessment Plea basically accepted guilt in respect of contractor via breach to its own employees ATE Crown Court

Found high culpability: failed to put in place measures that are recognised standards in the industry allowed the breach to subsist over a long period of time Agreed Level A harm but found high likelihood Turnover meant ATE was just within range for medium Gave full credit for plea Fined 475,000 Starting point 625,000 Increased to 750,000 for actual harm and risk to

others Reduced for plea and mitigation ATE Court of Appeal Grounds for appeal Fine manifestly excessive Judge made factual errors ATE not completed task itself many times Period of offending limited on indictment No industry standards ATE employees separated from contractors activities

Judge departed from agreed basis of plea without justification Low culpability was correct Low likelihood of harm due to many years without accident Harm Category 3 up to 2 ATE Court of Appeal Prosecution position: Low culpability (1) it was not an operation habitually undertaken; (2) ATE otherwise had good safe systems of work;

(3) ATE genuinely, though mistakenly, believed that it had no responsibility for the way Mr Price did his work; (4) there had been no prior warning. The seriousness of harm was at level A. There was a medium likelihood of the risk of harm materialising; the work was inherently dangerous with a hidden lurking danger; it was undertaken without a risk assessment. Factor 2 ii) was engaged so an uplift was to be considered (to harm category 1). ATE Court of Appeal Judgement

Confirmed that court not bound by agreed position but promoted sensible agreement and that court should only depart after careful consideration. Some concern re artificial nature of plea Culpability - agreed low should only consider ATEs own method not method of contractor No industry standard Went outside time period in indictment Judge not justified in finding high culpability

ATE Court of Appeal Judgement Medium likelihood of harm (Harm Category 2) Accident free period didnt mean likelihood of harm low Paragraph 2a risk to others didnt apply as no evidence Paragraph 2b death did apply (moved up to Harm Category 1) Starting point at top of Harm Category 1 - 300,000 Full credit for plea Fine reduced to 200,000

Appeals Against Sentence Some appeals are successful but on the whole an appeal is unlikely to make a material difference to the outcome A fatality justifies moving not only into next category but to the top of next category range Inconsistent approach to VLO Large company table is

broadly sufficient Risks of VLO status Recent Appeals Against Sentence Squibb Limited Demolition contractor for school refurbishment project Asbestos survey conducted before work commenced and steps taken to remove the identified asbestos Additional asbestos later discovered after demolition works had already begun Found guilty of breaching s.2 but acquitted s.3

Turnover 29.5m, High Culpability, HC2 Fined 400,000 Recent Appeals Against Sentence Squibb Limited Unsuccessful appeal against conviction Court of Appeal disagreed with the company that its culpability could be properly categorised as Medium All parties agreed asbestos exposure = Level A Harm Court of Appeal agreed with the company that the judge had been wrong to disregard expert evidence

regarding the likelihood of harm from exposure Fine reduced to 190,000 (High Culp, HC3) Recent Appeals Against Sentence Squibb Limited Learning Outcomes Importance of expert evidence in sentencing Approach to managing asbestos: Don't just rely on vague or verbal assurances Detail of survey proportionate for the work Check any survey caveats and assumptions What areas the surveyor was able to access?

Does this correspond with the areas for work? Act upon survey recommendations Recent Appeals Against Sentence NPS London Limited Joint venture between property consultant and LA Responsible for managing refurbishment project Commissioned asbestos survey but failed to identify deficiencies in survey. Asbestos later discovered by contractor Squibb Guilty plea to breaching Section 3

Turnover 4.9m, High Culpability, HC2 Fined 370,000 (treated as large organisation based on turnover of parent company) Recent Appeals Against Sentence What do the Sentencing Guidelines say? Recent Appeals Against Sentence NPS London Limited Court of Appeal concluded judge had been wrong to treat NPS as a Large organisation

Just because an offender is a subsidiary is not sufficient for the court to take into account the resources of a parent or linked organisation Resources of linked organisation may still be relevant when assessing financial circumstances in the round (e.g. where subsidiary can rely on parent for financial support in paying a fine) Fine reduced to 50,000 Recent Appeals Against Sentence Faltec Europe Limited

Manufacturer of parts for other car manufacturers (Nissan, Renault, BMW, Honda) Two outbreaks of legionella between October 2014 and June 2015. Four employees and one nonemployee who lived near the companys premises were diagnosed with Legionnaire's Disease Explosion involving flocking machine on 16 October 2015 which injured an employee Three offences: Section 2 and Section 3 (legionella) and Section 2 (flocking machine explosion) Recent Appeals Against Sentence

Faltec Europe Limited Turnover 36.4m Fine 1.6m (800k in connection with each incident) Recent Appeals Against Sentence What do the Sentencing Guidelines say? Recent Appeals Against Sentence Faltec Europe Limited Appeal

Legionella fine reduced from 800,000 to 380,000 Flocker machine fine upheld at 800,000 Recent Appeals Against Sentence Faltec Europe Limited Other Lessons Judge was critical of weak line management, with insufficient priority being given to even the most fundamental issues of health and safety. simply subcontracting out [health and safety] obligations cannot provide an answer to failures to properly monitor and overview that contractor's work.

Impact on sentencing of making a reserve in accounts against a future? Questions? Emma Evans Senior Associate Pinsent Masons 0161 234 8346 / 07721 118 112 [email protected]

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