HEALTH & SAFETY: An Introduction

Health and Safety Prosecutions: A Growing Backlog and the Potential of the CCDCS to Streamline the Process

One of the greatest challenges impacting health and safety prosecutions remains the record backlog of criminal cases in the Crown Court. With Crown Court trials already being listed into 2027 and beyond, new cases face substantial delays in reaching resolution where allegations are contested. With individual defendants in health and safety cases almost never remanded in custody awaiting trial, and more often than not concerning corporate defendants, the timely listing of health and safety matters will inevitably receive lower priority. Some defendants may see this as an advantage – for some it will allow time to improve safety systems and enhance other mitigation in the event of eventual conviction, for others, it may be a less admirable hope that witnesses, including injured persons, will become frustrated with delays and lose interest in co-operating with the process. Equally, there will be difficulties in sentencing organisations, but particularly individuals, many years after offences have taken place.

Annual statistics released by the Health and Safety Executive show that construction remains the industry with the highest number of work-related fatalities. There were 51 construction worker deaths in the year ending 31 March 2024 – more than double the 23 deaths in agriculture, forestry and fishing, the next most dangerous sector in terms of fatalities. Indeed, deaths in construction made up one third of the overall work-related deaths in the period, which totalled 138. Falls from height remain the biggest single killer, with 50 such deaths, and fatalities caused by being struck by a moving vehicle the next most common type of incident, resulting in 25 deaths. With ambitious government targets for house building and industry experts predicting growth in the construction sector more widely, it seems likely that despite improving standards, construction will remain a focus for health and safety enforcement.

Health and Safety Executive (HSE) prosecutions have seen two key changes in recent times: the reduction in use of solicitor agent prosecutors and the adoption of the Crown Court Digital Case System (CCDCS) for uploading and managing evidence in the Crown Court. It remains to be seen what impact, if any, these changes will have on the efficiency and speed with which prosecutions are brought, but the modernisation and streamlining of the service and presentation of evidence at court is undoubtedly a welcome development which should also positively impact case management.  

Growing Penalties and Their Effect on Litigation Strategy

Fines are on the rise, with the trend towards the imposition of greater penalties for health and safety offences apparent to all who practise in this sector, with seven of the ten highest financial penalties for health and safety offences having been imposed in the last three years (2022–2024). Headline-grabbing multi-million-pound fines for “very large organisations” (VLOs), with a turnover significantly exceeding GBP250 million, provide the clearest illustration of this. Whilst Court of Appeal authorities providing guidance as to how the Sentencing Guidelines apply to penalties for VLOs includes confirmation that the assets of a parent company should not be taken into account as regards a subsidiary’s turnover or available funds, greater and greater penalties continue to be the direction of travel for the courts dealing with these cases.

As a result, large and very large organisations will need to consider with even greater care the merits of their case from an early stage. Co-operation with investigations, obtaining early legal advice and timely consideration of expert evidence will be key to such considerations. Where penalties are so substantial, fighting a case to trial, or even delaying a plea, may become less appealing. The highest-level of credit available for an early guilty plea – a one-third reduction in any fine imposed – is now only available in cases where such pleas are entered in the Magistrates Court. The most recent Sentencing Guideline on Guilty Pleas post-dates the Definitive Guideline on Health and Safety Offences and makes no distinction between health and safety offences and other criminal charges. With a reduced 25% credit available for a plea at the first hearing in the Crown Court, the six weeks between first appearance in the Magistrates Court and a Plea and Trial Preparation Hearing in the Crown Court could cost a defendant more than an additional 8% of any fine imposed – potentially a very substantial sum where a fine is in the millions. That being said, some will still see an incentive in proceeding to trial in the hope that the overall fine imposed will be lower once a court has heard the evidence, rather than assessing the penalty as a paper exercise, and so “litigate to mitigate”. Either way, early engagement with legal representatives and instruction of expert witnesses will be crucial to ensuring the best results for larger corporate clients.

Legislative Developments: Possible Amendments to the Health and Safety at Work Act

In terms of legislative developments, the Health and Safety at Work etc. Act 1974 (Amendment) Bill has been introduced in the House of Commons to amend the Health and Safety at Work etc. Act 1974 (HSWA) to impose new requirements for employers in relation to violence and harassment in the workplace. If the Private Members Bill becomes law, employers will be required to take proactive measures to prevent violence and harassment in the workplace and to protect women and girls.

The first reading of the bill in the House of Commons took place on 21 October 2024, and the second reading is scheduled for 7 March 2025. The draft bill proposes amendments to Section 2 of the HSWA that will create new duties aimed at the prevention of violence and harassment in the workplace and which will require duty holders to adopt proactive and preventative measures to protect all persons working in their workplace from violence and harassment, including gender-based violence, sexual harassment, psychological and emotional abuse, physical and sexual abuse, stalking and harassment, including online harassment, and threats of violence.

The draft bill also proposes new duties on employers to prepare, and as often as may be appropriate revise, an assessment to identify potential risks of violence and harassment in the workplace and implement policies and procedures to eliminate these risks so far as is reasonably practicable, and to provide training to all employees on recognising and preventing violence and harassment in the workplace, with a focus on “gender-responsive approaches”, meaning taking into account the various needs, interests, and experiences of people of different gender identities, including women and girls, when designing and implementing policies and procedures. The bill defines “persons working in the workplace” as including employees; full-time, part-time, and temporary workers; interns and apprentices; volunteers; and job applicants. It also includes remote and hybrid work environments in the definition of workplace.

It remains to be seen how these proposals might work in practice should the bill become law, but it also creates new duties on the HSE to:

• develop, publish and as often as may be appropriate revise a health and safety framework on violence and harassment in the workplace;
• work with other relevant bodies, including the Equality and Human Rights Commission and law enforcement agencies, to develop and revise this framework; and
• issue guidance for employers about the protection of women and girls in the workplace.

It therefore seems that the HSE will be expected to lead on what is expected of employers and shoulder the challenge of enforcing these new duties in the years ahead. How this is achieved by an already stretched HSE carrying out its functions in relation to physical workplace safety may be the greatest challenge these new proposals could create.