HEALTH & SAFETY: An Introduction to UK-wide

Health and Safety Enforcement: A Change of Direction?

Prior to being elected, Labour vowed to “review health and safety guidance and regulations with a view to modernising legislation and guidance where it does not fully reflect the modern workplace”. While light on detail, their Plan to Make Work Pay highlighted sectors where working temperatures are regularly unacceptably high, including for those working in sedentary jobs, and a continued focus on the wellbeing of workers and mental health, picking up on areas prioritised by the Health and Safety Executive (HSE) in their 10-year strategy and elsewhere.

Labour’s plan also included considering whether existing regulations and guidance are adequate to support those experiencing the symptoms of long COVID; ensuring that health and safety reflects the diversity of the workforce; and strengthening the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts (an area that the HSE has previously told Parliament was outside of its remit).

What changes are implemented, and whether such priorities ultimately lead to a change of focus in enforcement action, remains to be seen: for the time being, injury and industrial disease remain the focus. In relation to mental health for example, notwithstanding the HSE’s stated intention to “deliver interventions that make a real difference”, there is a stark absence of enforcement action (the HSE has suggested that some current enforcement action is indirectly related to mental health issues).

In fact, if the HSE and Government are determined to make a real difference to mental health, the first place they should look is the Prison Service, where suicide rates are around one per 1,000 prisoners annually. Despite repeated shocking safety failings in prisons across the country that have contributed to the suicides of possibly hundreds of prisoners, the Prison Service continues to be protected by Crown immunity in relation to health and safety offences, while the HSE has neglected the limited power it does have in such cases to “censure” for more than ten years.

Building safety will remain a priority for the HSE this year amidst the changing legislative landscape and its settling into its role as the Building Safety Regulator. On 28 November 2023, the Building Safety Regulator published its first three-year strategic plan, which promises “fundamental improvements to the safety and standard of buildings in England” and “increased competence and accountability among those working in the built environment”.

April 2024 marked the end of the six-month transitional period following the coming into force of the Building Safety Act 2022 in October 2023. One of the key provisions is the introduction of the roles of “accountable person” and “principal accountable person” under Sections 72 and 73 of the Act in respect of “higher-risk buildings” (buildings over 18 metres, or seven storeys, tall). Accountable persons and principal accountable persons must ensure that effective, proportionate measures are in place to manage building safety risks in buildings, or parts of buildings, for which they are responsible. Failure to comply with their duties under the Building Safety Act 2022 could result in the imposition of an unlimited fine and/or a custodial sentence of up to two years.

We are beginning to see litigation arising from the new regulatory regime, with its sharp focus on competence and accountability. Notwithstanding this focus, the Upper Tribunal in Unsdorfer v Octagon Overseas Ltd [2024] UKUT 59 (pending appeal) confirmed that a “manager” appointed under Section 24 of the Landlord and Tenant Act 1987 (ie, a manager appointed by the court to look after a premises where a landlord was failing to meet its obligations) could not be an accountable person under the Bank Secrecy Act (BSA) 2022. This outcome may not have been intended by Parliament and demonstrates once again the complexities that arise when building and fire safety law interact with property law.

Phase II of the Grenfell Tower Inquiry concluded in August 2024, with the final report being published on 4 September 2023. The Inquiry’s criticisms of those involved in the events leading up to the fire were severe and widespread, including an allegation of dishonesty against those who made and sold the rainscreen cladding panels and insulation products. Many of the criticisms have been hotly contested during the inquiry process, and will continue to be as the police progress their investigations of 77 individual and corporate suspects. Charging decisions by the Crown Prosecution Service are not expected until 2026 at the earliest.

Meanwhile, the routine business of prosecuting companies following serious accidents continued, with a number of high fines, as follows.

• In January 2024, a recycling company, Ward Recycling, was fined a total of GBP2.15 million following the death of a worker in January 2020. The worker was walking across a traffic area in the worksite when he was struck by a loading shovel and run over.   
• In May 2024, a metals recycling company, CF Booth Limited, was fined GBP1.2 million after a worker struck by a wagon was injured at a processing site in August 2020. The worker, who sustained a fractured skull and collar bone (but made a full recovery), was walking across the yard site when he was struck by a moving 32-tonne skip wagon.
• In June 2024, the construction company BAM Nuttall Ltd was fined GBP2.345 million following the death of a worker who drowned in the River Aire on 30 October 2017. The worker was on a boat removing debris from the bottom of the weir gates at Knostrop Weir when the boat capsized.
• In July 2024, a recycling company, Veolia ES (UK) Ltd, was fined GBP3 million following the death and serious injury of two demolition operatives undertaking the decommissioning and dismantlement of offshore structures in October 2019. The workers were removing an overhanging piece of metal pipework when the structure designed to support oil and gas rig platforms gave way, throwing the two men to the ground 12 metres below. 
• In August 2024, a logistics company, Southampton Container Terminals Limited, was fined GBP1 million following an incident in September 2022 when a worker fell through an open hole, of which he was unaware, falling 11 metres onto a concrete floor and sustaining serious injuries.
• In September 2024, the National Grid was fined GBP3.2 million after an incident on 3 December 2020, where a pylon worker received an electric shock of 33 thousand volts, resulting in burns to 40% of his body and life-changing injuries.