HEALTH & SAFETY: An Introduction
The plot of health & safety law in 2019/20 has obviously been dominated by the Covid-19 pandemic. Employers were required to implement challenging guidance (to PPE or not to PPE?), against the backdrop of rapidly developing science and an enigmatic but undoubtedly material risk, while HSE faced corresponding pressure to bring enforcement action against those slow to do so. Meanwhile, health & safety jury trials ceased alongside all others; unfortunately, the exceptionally low incidence of individual defendants in custody and the typically unattractive length of health & safety trials work against their prioritisation in the Courts’ work to clear the backlog.
However, health & safety trials would seem to be eminently suited to “Blackstone” Courts for much the same reasons. Further, after its enforced hiatus, Phase 2 of the Grenfell Tower Inquiry is under way in London, and the Inquest into the Croydon tram crash in 2016 is still scheduled to go ahead in September 2020.
In the throes of the national lockdown, the Government introduced the Fire Safety Bill and, more recently, the Building Safety Bill, which will establish a new regulator within HSE. This legislation promises wholesale reform of the construction industry and fire safety duties and, no doubt, a significant bedding-in period for duty holders and regulators alike.
The latest figures for enforcement by the HSE were published in October 2019, before the coronavirus pandemic hit. The number of cases brought by the HSE and, in Scotland, the COPFS, fell 23% from 509 in 2017/2018 to 394 in 2018/2019. Consequently, the total of all fines reduced for the first time since the Definitive Guideline for Health & Safety Offences et al. figures were first published. However, the average fine per conviction rose again to £149,661. This was an increase of less than 2% from the year before. This stands in stark contrast to the over 100% increase in average fine between 2015/2016 and 2016/2017, when the Guideline was introduced, and the 17%-odd increase in average fine between 2016/2017 and 2017/2018 – a clear sign that the average fine is levelling out post-Guideline.
As for the likely impact of the coronavirus pandemic on sentencing, the global total of all fines will inevitably reduce for the year to October 2020 as a result of the Court closures and consequent backlog. The full impact of Covid-19 on the average fine will only be visible when the new figures are released in October 2020, but our experience is that the Courts have been open to making real reductions to reflect both realised and anticipated downturns in companies’ fortunes as a result of Covid-19.
In Leeds Crown Court, HHJ Stubbs QC reduced the fine of IFG Drake Ltd, a Medium Company, in a fatal case relating to inadequate guarding from £650,000 to £550,000, before reduction for plea to £366,860, to reflect the projected impact of Covid-19 on turnover and profit. In Sheffield Crown Court, HHJ Thomas QC was sympathetic to corresponding arguments in imposing a fine of £140,000 after a one-third discount on PMS Limited, a VLO, for a long-running but non-causative HAVS breach – albeit both of these cases concerned companies that already had markedly low profit margins.
Pre-Covid-19, in Wolverhampton, DB Cargo (UK) Limited was fined £1.2 million net of full credit for a near repeat of the circumstances of an electrocution incident for which it was fined £2.7 million after a trial in Newcastle in 2019. Costain Limited also received a fine of £1.2 million net of full credit in July 2020, not reduced for Covid-19 considerations, also on facts which the Prosecution alleged were strikingly similar to those behind a previous conviction pre-Guideline. Both cases involved life-changing injuries, not fatalities.
The impact of VLO status continues to vary from case to case, but our team’s experience in fatal cases brought against organisations of all sizes is that the Whirlpool approach to starting points is becoming increasingly commonplace.
There were, unsurprisingly, fewer workplace deaths in the year to July 2020 than in recent years. This year, 111 workers died at work. That is a rate of 0.34 deaths per 100,000 workers (employees/self-employed), whereas the five-year average rate is 0.42 per 100,000 workers. It is worthy of note that falls from height were the main kind of fatal accident again this year, accounting for 29 deaths, and followed as usual by those struck by a moving vehicle, at 20 deaths.
Sadly, in the construction industry (where many workers could not work from home during the coronavirus lockdown) the number of deaths actually increased in the year to July 2020, with 40 deaths, up from 31 in the previous year. Given this specific rise, it seems likely that the drop in total deaths at work is very largely attributable to the lockdown and the total is therefore likely to be higher, absent a further lockdown, in the year 2020/21 as people return to “normal” working practices.
The two corporate manslaughter prosecutions outstanding at the start of the year have concluded: Ace Waste Haulage Ltd and its director were acquitted of corporate and gross negligence manslaughter respectively after a trial in the Old Bailey in January 2020. The corporate manslaughter charge against Roofing Consultants Ltd was dropped in favour of a Health & Safety at Work etc. Act 1974 charge, to which it pleaded guilty. It will be sentenced following the related trial listed for September 2020.
The highest-profile individual gross negligence manslaughter case in the last year was, of course, that of David Duckenfield, who was ultimately acquitted in November 2019 in relation to the Hillsborough Disaster.
New corporate manslaughter prosecutions remain sparse. The corporate manslaughter and gross negligence manslaughter prosecutions relating to the 2015 Bosley Mill explosion remain listed for the first quarter of 2021. Most recently, in July 2020, West Midlands Police announced that specialist recycler Alutrade Ltd would be charged with corporate manslaughter relating to a single worker death in July 2017 – the case is in the Magistrates’ Court in September 2020. Alongside these cases, our team are involved in two more corporate manslaughter cases expected to reach trial in 2021/22.
Prosecution of individuals
Section 37 prosecutions of directors and officers continue apace. However, the number of immediate custodial sentences as a proportion of all sentences (3%) fell for the first time since at least 2017. The number of suspended sentences remained static at 9%.
It remains too soon to assess the impact of the new Definitive Guideline on Manslaughter which took effect on 1 November 2018.
Food safety continues to be a growth area within health & safety. Arguably, the highest-profile matter to look out for will be the inquests into the 2019 Manchester and Liverpool hospital listeria deaths approaching in the coming year.
The year ahead
Phase 2 of the Grenfell Tower Inquiry is likely to dominate health & safety headlines for the rest of 2020 and well into 2021, when the Inquiry will turn from consideration of the exterior of the building to look at the fire safety measures inside the building. Our experience since the conclusion of Phase 1 strongly indicates a continuing increase of fire safety enforcement action as the directions of travel of Phase 2 crystallise.
As the HSE becomes increasingly mobilised and vocal regarding Covid-19-related spot inspections and enforcement, we anticipate significant related litigation contesting Enforcement Notices will emerge from late autumn onwards.
As the Building Safety Bill and the Fire Safety Bill continue their journeys through Parliament to the statute book, it will be for health & safety lawyers to navigate, advise and litigate their way through the infancy of their implementation.
All in all, 2020/21 promises to be another very eventful year in the dynamic world of health & safety.
Harry Vann & Katie Sage of Crown Office Chambers