Mention the words ‘health and safety’ and people’s eyes glaze over in boredom. Many employers think it is optional to take reasonable care of their workforce, however, they may be alarmed to know that it is mandatory, with potentially severe legal repercussions should they be found to have not met their legal responsibilities. Health and Safety law is ‘criminal law’ and if an employer is found to have breached their legal duty, then the Health and Safety Executive may very well prosecute them or at the very least, issue an enforcement notice. Here are six actions that the Health and Safety Executive or Local Authorities might decide to take should they find an employer not meeting their legal duty:
1. Simple caution – this is issued, most often by Local Authorities, providing that the evidence available suggests that a conviction is more likely than an acquittal before a court. The offender admits to the offence and agrees to the simple caution. HSE enforcement officers do not tend to use simple cautions and are more likely to follow the ones below.
2. Improvement Notice – this is issued where the inspector thinks that health and safety law is being breached or a breach has occurred and is likely to be repeated. An Improvement Notice can be appealed within 21 days and the Notice does not stay in place until after the appeal has been heard and decided. (please note if the Notice is upheld, this information is available to the public for five years)
3. Prohibition Notice – this is issued where the inspector thinks that there is an imminent risk of serious personal injury. The Prohibition Notice will state that the activity must stop until such time as it has been rectified. A Prohibition Notice can be appealed within 21 days; however, it will stay in place until appeal decision has been made. (please note if the Notice is upheld, this information is available to the public for five years)
4. Fee for Intervention (FFI) – if you do not break the law, then there is no fee! – The Fee for Intervention is applicable if the HSE visits your workplace and finds that you are in ‘material breach’ of health and safety law, you will have to pay for the time it takes for the HSE to identify what is wrong and to help put things right. The current standard rate is £154 per hour and would result in the offender being charged for the entire duration of the visit/s. Fee for Intervention is currently not applicable in Northern Ireland.
5. Prosecution – The HSE consider all health and safety concerns and make risk-based decisions when considering what actions to take. When they investigate; they gather and establish the facts, identify immediate and underlying causes and lessons to be learned, take actions to prevent recurrence, identify any breaches of legislation and consider appropriate enforcement. The size of the investigation will depend on the severity of the incident or complaint and may result in the person or persons breaching the law, being prosecuted. Summary offences are considered minor offences and are decided in Magistrates’ Court. The penalties for most offences are an unlimited fine; and/or six months in prison. Indictable Offences are the more serious type of offence, and the trial takes place before a judge and jury in the Crown Court. Penalties for these offences are an unlimited fine and/or up to two years in prison.
6. Manslaughter – In rare occasions, organisations and/or individuals are charged with manslaughter associated with a health and safety failure that has caused a fatality. This is a very serious criminal offence. Individuals can be charged with gross negligence manslaughter, where their conduct fell well below the standards of a reasonable man and resulted in someone’s death. (this carries the maximum sentence of life imprisonment). Organisations can be charged with corporate manslaughter where the penalty on conviction is an unlimited fine and the organisation may be ordered to publicise its offence and/or remedy its management failings. The Corporate Manslaughter and Corporate Homicide Act 2007 states that an organisation will be guilty of the offence if the way that the organisation managed or organised its activities: caused a persons death, amounts to gross breach of their duty of care to the deceased and if the way in which the organisation is managed or organised by its senior management is a substantial element in the gross breach.
It is important to note that in some cases, individuals and organisations have been charged with offences under the Health and Safety at Work (NI) Order and with corporate manslaughter offences such as:
Everybody has legal responsibilities under health and safety law. The law sets boundaries for us to stay within. If we stay within the boundaries, we can put in place controls to reduce the risk of people being harmed at work so far as is reasonably practicable, however, if we ignore or try to stretch those boundaries, there is a much greater risk of harm occurring and we have to be aware of the consequences.
The above only gives a short outline on the legal consequences of breaching health and safety law, however the moral and financial implications are huge and will be discussed in later blogs.
© 2021 Nicola Penman. All rights reserved.