HEALTH & SAFETY: An Introduction
HEALTH & SAFETY
Contributed by Richard Reichman and Tom McNeill, BCL Solicitors LLP
The backdrop to the UK’s current health and safety picture continues to be the ongoing global coronavirus (COVID-19) pandemic. This coincides with an increased focus by boards on Environmental, Social and Governance (ESG) issues, driven by changing societal attitudes, increased regulation and ever-increasing penalties, now reaching levels previously reserved for financial crime and breaches of competition law.
Following an end to 16 months of significant restrictions on daily life and the abolition of work-from-home guidance, businesses are attempting to manage the ongoing risks posed by the COVID-19 pandemic, including risks to remote workers and mental health. How to address the public health risk of a highly contagious, airborne, infectious disease in a workplace context, rather than a risk generated by a work activity, continues to present challenges to health and safety professionals.
The HSE and local authorities are continuing COVID-19 workplace inspections. Between 10 April 2020 and 14 August 2021, 34,835 notifications were received through RIDDOR reporting where occupational exposure was suspected, including 409 notifications of fatalities. Between 1 April 2020 and 31 March 2021, HSE inspectors were involved in around 16,500 cases relating to spot checks and inspections triggered by concerns, providing verbal advice in around 35% of cases, a letter in around 9% of cases and issuing enforcement notices in around 1% of cases, i.e. on around 165 occasions. The HSE has also undertaken 671 investigations following COVID-19 outbreaks, with 43% resulting in verbal advice, 12% a letter and 1% where an enforcement notice was served. As at March 2021, the HSE was investigating 74 COVID-19-related deaths, and enquiries were ongoing regarding whether to commence a full investigation in a further 89 cases. It is clear that the HSE is active in this area.
The Prime Minister has indicated that a COVID-19 public inquiry will begin in the spring of 2022, considering the government’s pandemic response and learning lessons for the future.
Beyond COVID-19, a significant development regarding inquest conclusions occurred in the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire  UKSC 46. The Supreme Court found that all conclusions in coronial inquests, including unlawful killing and suicide, whether short form or narrative, are to be determined on the civil standard of proof, i.e. "on the balance of probabilities". Previously, the burden of proof applied was the criminal burden of proof, i.e. "beyond reasonable doubt". There are likely to be more inquests considering unlawful killing and more unlawful killing conclusions in the future.
The challenge for the prosecution to prove causation in corporate manslaughter and gross negligence manslaughter cases has been highlighted in several recent cases. In August 2020, judgment was handed down in R v Broughton  EWCA Crim 1093, a case involving the tragic death of a young woman at a music festival. The Court of Appeal held that expert evidence of a 90% chance of survival with medical assistance was not sufficient to prove causation to the criminal standard and the case should have been withdrawn from the jury.
In the case of R v Wood Treatment Limited  EWCA Crim 618, following the July 2015 explosion and fire at the Bosley Mill wood treatment plant in Cheshire, expert evidence provided four credible scenarios that could have caused the explosion. One of the four scenarios did not necessarily involve negligently accumulated dust, but instead related to the failure of a piece of equipment. The Court of Appeal agreed with the judge at first instance that there was no or not sufficient evidence to prove that the alleged negligent acts or omissions played any substantial part in causing the explosion; it was a realistic possibility that the explosion may well have happened if the defendants had not been negligent in any of the ways alleged by the prosecution.
There have been important legislative developments arising out of the Grenfell Tower tragedy. Following recommendations from Phase 1 of the public inquiry, the Fire Safety Act became law on 29 April 2021. The Act clarifies that for any residential building containing two or more sets of domestic premises, the Regulatory Reform (Fire Safety) Order 2005 (RRO 2005) applies to the building's structure and external walls and any common parts, including the doors between domestic premises and common areas; responsible persons must consider these areas when addressing fire safety risks. The Act also clarifies that external walls include "doors or windows in those walls" and "anything attached to the exterior of those walls (including balconies)".
As part of the Government’s Grenfell response, the Building Safety Bill has been introduced to Parliament and is intended to overhaul building safety for high-rise residential and other in-scope buildings. The Bill establishes the HSE as the Building Safety Regulator to enforce the new requirements. A key proposed change is that high-rise residential buildings will need a safety case, and in September 2021, the HSE published safety case principles to provide early industry support regarding the anticipated reforms. The Bill also contains further proposed amendments to the RRO 2005. The Bill is at an early stage (currently anticipated to come into force in 2022/2023), but significant new regulatory responsibilities are anticipated.
We have continued to see very high regulatory fines, particularly for very large organisations. For example, in July 2021, a corporate defendant was fined £90 million for illegal sewage discharges, following the Environment Agency’s largest ever investigation. Tesco Stores was fined £7.56 million after pleading guilty to 22 out-of-date food offences which occurred at three of its stores, a figure unparalleled in food safety prosecutions.
Food safety regulation has also attracted press attention due to the reform of allergen labelling requirements for pre-packed for direct sale (PPDS) foods, with the introduction of The Food Information (Amendment) (England) Regulations 2019, also known as Natasha’s Law. From 1 October 2021, any food business that produces PPDS food will be required to label it with the name of the food and a full ingredients list, emphasising all allergenic ingredients.