HEALTH & SAFETY: An Introduction

Health and Safety Overview 2022  

by Harry Vann and Katie Sage of Crown Office Chambers

Introduction 

The last year has seen things return to closer to normal for the world of health and safety, as those on both sides of the court catch up with the inevitable delays from the pandemic and the shift of the archetypal corporate position from pondering the size of its impact to quantifying the losses.

Evidence in the Grenfell Inquiry has concluded and the much anticipated Building Safety Act has become law, albeit that much of it is yet to come into effect, and the HSE consultation on its new role as the Building Regulator will continue into 2023.

As one Inquiry concludes (at least, evidentially), another begins, with the Covid Inquiry attracting many in the regulatory field.

Corporate and Gross Negligence Manslaughter trials have again drawn the headlines in the field, with the resolution of the Alutrade prosecution and the trials in DekoPak and Greenfeeds heard earlier this year. Shredmet is still to come at the time of drafting – a clear indication that there is currently no sign that the Corporate Manslaughter & Corporate Homicide Act 2007 has run its course!

Workplace injuries and fatalities 

We are pleased to report that workplace fatalities fell to 123 in the year to March 2022, which puts the rate of fatal injuries per workers at 0.38 per 100,000. Excluding 2019/20 when the workplace was affected by the pandemic, this is the first time in five years that the number of fatalities has fallen below 140 and we can only hope indicates the start of a downward trend. Construction remains the most dangerous industry in terms of fatalities, followed by agriculture, forestry and fishing, and manufacturing. Between them, these industries account for 60% of all workplace fatalities. Falls from height remain the main kind of accident that results in fatality.

The latest available non-fatal injuries data records that there were 51,211 employer-reported injuries in 2020/21. That is the lowest reported number of injuries since 2014 and follows the downward trend of the data over the past seven years. The most common injury is a slip, trip or fall on the same level (33%), followed by a handling, lifting or carrying accident (10%). In contrast to fatal accidents, falls from height only account for 8% of non-fatal accidents.

Alongside physical injury in the workplace, it is worth noting the significant statistics relating to work-related stress, depression or anxiety. These types of illness make up 50% of new and long-standing cases of work-related ill-health and, despite changes in working practices for many, reported rates of these illnesses have increased since before the coronavirus pandemic. By industry, stress, depression or anxiety is most prevalent in education and human health and social work activities.

Enforcement 

There was a significant reduction in the number of enforcement and improvement notices issued in 2020/21. Only 2,929 were issued, compared to 6,922 in the previous year. Both of these years would have been affected by the pandemic, which we suggest is the likely reason for the significant drop. From March 2015 to March 2019, the average number of notices per year was just over 9,000. It is also worthy of note that in contrast to previous years, the percentage of prohibition notices as a proportion of all notices was 38%, 11% more than in 2019/20.

The number of prosecutions for which a verdict has been reached also fell in 2020/21, but the conviction rate remains steady at over 90%. The average fine has risen again, returning to pre-pandemic levels at £145,290.

Prosecution of individuals 

Five HSE prosecutions resulted in immediate custody in 2020/21, with 24 suspended sentences and 17 community sentences. That represents a decrease in the percentage of immediate custodial sentences as a proportion of all sentences from the previous year, down from 5% to 2%. There was a slight increase in suspended sentences as a proportion of all sentences, up from 9% to 10%.

The prevalence of custodial sentences, whether suspended or immediate, underscores the significance of charging decisions, especially given the apparent determination on the part of the Executive to maintain cases against individuals notwithstanding the willingness of the associated corporate defendant to plead guilty.

Manslaughter  

We have recently been provided with data from the CPS on the sentences for gross negligence manslaughter for the last ten years. Those who practise in this area will know that new sentencing guidelines came into effect on 1 November 2018. Since then, of the nine convictions, there has been only one suspended sentence, compared with six between 2012 and 2017. Four of the convictions since 2018 have resulted in sentences of nine years or more, when the longest sentence before the new guidelines was six years. These longer sentences have a significant impact on individuals, who are required to serve at least two-thirds of the sentence in prison before being released on licence.

The year ahead 

Several changes in the landscape of health and safety are at large. In particular, the HSE is taking on the mantle of building safety regulator; and the shift in emphasis from safety to health continues – the Executive has widely publicised its crackdown on exposure to dusts of all types under COSHH and, more recently, on the measures it proposes employers take to safeguard employees’ mental health.

As these newer frontiers emerge, there is still much work to be undertaken to clear the backlog of enforcement action from the pandemic and before, promising a busy 2023 for health and safety lawyers.

Conclusion  

Uncertainties regarding the criminal justice system abound. The dynamic world of health and safety continues to move with the biggest issues of the day, and there can be little doubt that the publication of the Grenfell Inquiry’s findings, the commencement of the remaining sections of the Building Safety Act and the continued work to clear the remaining backlog of cases from the pandemic will keep the legal profession in the field busy in 2023 and beyond as new areas develop and novel points come before the courts.