HEALTH & SAFETY: An Introduction

HEALTH & SAFETY  

Contributed by Tom McNeill, Richard Reichman and Suzanne Gallagher, BCL Solicitors LLP

The HSE has published its ten year strategy for 2022-2032, with strategic objectives including reducing work-related ill health, specifically focusing on mental health and stress. While the HSE has already published various guidance for employers specifically focused on mental health conditions in the workplace (and launched the ‘Working Minds’ campaign), it remains unclear to what extent the HSE’s role in this area could or should move beyond guidance and instruction to bringing enforcement action, with a number of potential legal and evidential issues arising.

Another HSE strategic objective is to ‘increase and maintain trust to ensure people feel safe where they live, where they work and in their environment’, which includes as a practical focus the HSE’s new role as Building Safety Regulator. Meeting recommendations from Phase 1 of the Grenfell Tower Inquiry, the Building Safety Act 2022, provides for a new regulatory regime during the design and construction phase for ‘higher risk’ buildings, meaning buildings that are at least 18 metres tall or have at least seven stories and contain at least two residential units. The 2022 Act creates new criminal offences with the risk of enforcement action and prosecution.

A further strategic objective is to ‘enable industry to innovate safely to prevent major incidents, supporting the move towards net zero’. The HSE’s role in establishing Great Britain as world leaders in net zero is perhaps overstated, but certainly new technologies will present new risks and methods of controlling risks. The ORR’s annual health and safety report for 2021-22 included as a running thread technological innovation to improve risk management, sometimes expressly with a view to minimising reliance on people (for example when dispatching trains).

The HSE’s strategy does include as a more traditional objective maintaining Great Britain’s record as one of the safest countries to work in, interestingly noting: ‘The maturity of business and their increased level of understanding of safety risks means that we can look to regulate in different ways. This should allow us to focus on achieving similar improvements in workplace health.’ Current trends suggest that that could mean less enforcement action.

HSE enforcement notices and prosecutions fell to record lows in 2020/21. Once again, COVID-19 accounts for the decreases in part; however, the pre-pandemic underlying trend already indicated a fall. In the five years between 1999/00 and 2003/04, the HSE served an average of 11,627 notices per year. In 2020/21, the HSE served 2,929 enforcement notices, less than half of the 6,922 issued just one year earlier, and prosecuted just 199 cases, a 42% drop from the previous year. The number of cases has declined every year for the past five years, from 683 in 2015/16, halving by 2019/20, before dropping in 2020 to 2021 to a third of the 2015/16 levels.

Phase 2 of the Grenfell Tower Inquiry has concluded its public hearings. The Inquiry is now undertaking the necessary steps for the completion and publication of its final report. The Phase 1 report already stated that it would be an ‘affront to common sense’ to suggest that the external building walls complied with the requirements of building regulations, which state that the external walls should adequately resist the spread of fire, giving regard to the height, use and position of the building. There was ‘compelling evidence’ that its external walls were non-compliant, in that they did not adequately resist the spread of fire having regard to the height, use and position of the building. On the contrary, the external walls ‘promoted’ the spread of fire.

With the Inquiry drawing to a close, attention will increasingly turn to the Metropolitan Police and Crown Prosecution Service, with the potential for criminal prosecutions to follow. Due to the scale of the tragedy, a large number of organisations and individuals will be involved in the police investigation, at least while the police seek to establish respective roles and responsibilities.

The conclusion of the Grenfell Tower Inquiry public hearings occurs at a time when another significant public safety inquiry begins with the Covid Inquiry opening in July 2022. Criminal prosecutions could be considered against both corporate and individual defendants in relation to matters considered by the Covid Inquiry. In the last decade, several concluded inquiries have had associated prosecutions. Potential offences relating to COVID deaths which could be investigated include corporate manslaughter, gross negligence manslaughter, health and safety offences and care offences (such as failings relating to the provision of safe care and treatment).

A number of recent corporate manslaughter convictions (under the Corporate Manslaughter and Corporate Homicide Act 2007) exemplify the kind of flagrant, wilful or reckless disregard for safety that were at the time of its enactment the intended targets of health and safety prosecutions under the Health and Safety at Work etc Act 1974 (‘HSWA’). The most egregious was Greenfeeds Ltd. A worker cleaning an unventilated tanker collapsed unconscious and drowned in semi-liquid pig feed, with the worker who went to rescue him suffering the same fate. The sentencing judge remarked: ‘Not only did the company fall exceedingly short of the required standard, but obviously so. Indeed, barely any attempt was made to reach even a basic standard of safety. The non-compliance was widespread and universal, and employees who sought to challenge or avoid the dangerous activity were either rebuffed in strong terms…or simply ignored.’

The company was fined £2 million for two counts of corporate manslaughter following this double fatality, with no additional penalty for a guilty plea to a breach of the HSWA (the company is in liquidation, with little prospect of the fine being paid). In addition, one of its owners / managers was imprisoned for 13 years after being convicted of two counts of gross negligence manslaughter and an offence under the HSWA, and the company’s managing director imprisoned for 20 months after also being convicted of an offence under the HSWA.

Far less culpable, but still judged sufficiently ‘serious’ to warrant prosecution and a substantial fine for breach of the HSWA, the transport company Hermes Parcelnet was fined £850,000 following a guilty plea after an employee was fatally injured during training (on the safe movement of trailers). It was found that Hermes had not taken reasonably practicable steps to ensure that its in-house trainer had himself been sufficiently instructed or monitored, and that the trainer conducted the training in an unsafe manner. (The fine was only a fraction of pre-tax profits of over £130m.)