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HEALTH & SAFETY: An Introduction

Contributed by Guy Bastable, Richard Reichman and Tom McNeill of the Corporate Crime & Regulation Team at BCL Solicitors LLP

COVID-19 dominates the health and safety landscape. It is unlike anything that businesses have had to deal with since the UK’s health and safety laws were transformed by the Health and Safety at Work Act 1974 (HSWA) almost 50 years ago.

The HSWA and subsidiary legislation imposes on businesses onerous general duties to take all reasonably practicable measures to ensure the health and safety of employees and others, breach of which is a criminal offence. Even if an organisation has devised a safe system of work, a failure to operate that system, whether by an employee or by a contractor, may place the employer in breach of its duty. Reasonably practicable steps will include not only instructing employees on safety procedures, but also ensuring that they are followed, such as by reasonable supervision and monitoring. A ‘proportionate’ approach to enforcement decisions, as well as resourcing limitations, means that in practice it is usually only when things go wrong that businesses are prosecuted.

COVID-19 poses a particular challenge to businesses and regulators alike. What are reasonably practicable measures in a world of uncertain science, changing and contradictory government guidance and a nationwide debate on how best to balance risks to health against economic and other interests? The HSE has stated that its regulatory approach “will continue to take proportionate account of the risks and challenges arising from the pandemic”. But what is proportionate when the risks are still so little understood and apparently changing all the time? While causation is not a prerequisite – the offence is in creating a risk of harm – harm caused is an important factor in deciding whether there is a public interest in prosecuting and it is relevant in the sentencing exercise. But how is causation to be assessed in the context of an airborne infection with a one- to two-week incubation period during a global pandemic?

The HSE will doubtless give some leeway to businesses doing their best to follow the latest Government guidance, not least because the HSE and other authorities are unlikely to have the resources to undertake widespread enforcement action (they are stretched in ‘normal’ times). The lockdown has also exacerbated the backlog of outstanding investigations and court proceedings. At the time of writing there have been no COVID-19 prosecutions for health and safety breaches, while two improvement notices have been issued. However, there is time yet. Where there is evidence of deliberate flouting of Government guidance, particularly if businesses suffer unusually high or catastrophic outbreaks, the risk of enforcement action including prosecution will remain.

Any COVID-19 prosecution would give rise to novel challenges. If establishing that all reasonably practicable steps had been taken may sometimes prove difficult (whether before a jury or a court which continued to operate with only modest adjustments throughout the pandemic), attempting to categorise the seriousness of any offending by reference to the Sentencing Guidelines could prove even more so. The likelihood of harm is just one question that would currently test the world’s leading experts, let alone the criminal courts.

While COVID-19 understandably preoccupies minds, the duties of businesses to manage and control other risks to health and safety remain in force. What is the right balance between managing COVID-19-related risks and the usual risks inherent in ongoing operations? What about risks created or exacerbated by COVID-19 controls, including the impact of returns to work following lockdowns, new working practices and employee absences? How sympathetic will investigators and ultimately the courts be in relation to breaches arising from a failure to effectively manage these competing risks?

Health and safety fines are determined by the seriousness of the breach and the financial circumstances of the offending organisation, with particular reference to turnover. The pandemic has induced one of the deepest recessions on record. Inevitably this will impact on many defendant organisations. Courts are already adjusting fines downwards in light of the economic consequences of the pandemic. However, some discretion remains with the courts. In May 2020, in fining Modus Workspace £1.1 million, the sentencing judge declined to reduce the fine to reflect the likely halving of turnover, noting that at that stage it was too early to determine the long-term effects of the pandemic. The judge did indicate leniency for the payments timetable.

In other news, the Grenfell Tower Inquiry published a four-volume report on the first phase of its public inquiry, which looked at the events of the night, the cause of the fire and its spread. The report criticised the London Fire Brigade’s preparation and planning as “gravely inadequate”. It also found “compelling evidence” that the tower’s external walls were non-compliant with the Building Regulations 2010 in that they actively promoted the spread of fire. This will be investigated further in phase two.

The establishment of a Building Safety Regulator within the HSE to “give effective oversight of the design, construction and occupation of high-risk buildings” was announced on 20 January 2020. This was one of the proposals set out in the Government’s 2018 consultative document following its acceptance of the recommendations of the Hackitt review. Other proposals included setting out five duty holders responsible for the building’s safety during the design and construction, an “accountable person” legally responsible for the domestic premises’ fire and structural safety and effectively holding those who work on buildings to account. A draft Building Safety Bill was published in July 2020.

The Fire Safety Bill laid before Parliament on 19 March 2020 (with a second reading on 29 April 2020) will amend the Regulatory Reform (Fire Safety) Order 2005 to clarify that the relevant person for multi-occupied, residential buildings must manage and reduce the risk of fire for the structure and external walls of the building, as well as the entrance door to individual flats that open into common parts. It will also enable the government to make secondary legislation to implement the recommendations from phase one of the Grenfell Tower Inquiry.

Going forwards, psychological health is certain to feature more prominently in health and safety enforcement. Following the Government-commissioned 2017 review of mental health conditions in the workplace by Lord Stevenson and Paul Farmer, the HSE announced a priority plan to tackle work-related stress (reported to account for 37% of all ill-health cases and 45% of all working days lost due to ill health). The HSE is now reportedly considering ways to supplement its enforcement of how employers manage psychological stress in the workplace, including the possibility of inspectors examining employers’ sickness records. Work-related stress arising from the lockdown may be a particular focus.