The Importance of Health and Safety In the Salon by Kate Woods on 20 July, 2009 in Legal Advice The introduction of the new Corporate Manslaughter Act 2008 and the relatively unnoticed Health and Safety (Offences) Act 2008, have increased the significance of health and safety in the UK. Despite this, there remain a number of myths surrounding the subject. We asked Stuart Ponting, a specialist health and safety solicitor with international law firm DLA Piper LLP, to unveil some of these myths about the topic. Myth one: Health and safety law enforcement is just more red tape and form filling The sharp end of health and safety law enforcement is dealt with by the Health and Safety Executive (HSE) through the Criminal Justice System, not by civil servants in local government or the local council. We are talking about criminal law. Companies who are prosecuted by the HSE often believe that they can negotiate or settle their case by paying compensation or a fine – this isn’t about settling a case, this is pleading guilty to criminal offences. Pleading guilty to a criminal offence results in a conviction and a criminal record and crucially, there is no ability to settle ‘out of court’. Myth two: The HSE must prove what I did wrong and what I should have done All the prosecution must prove in a health and safety case is that there was a risk of harm or injury to employees or third parties. They do not have to prove anything more. Health and safety law contains a reverse burden of proof, so the defendant must prove they did take all reasonably practicable measures to ensure the health, safety and welfare of employees or those who come into contact with their business. The HSE does not have to prove that the defendant did not take all reasonably practicable measures. Myth three: Insurance will cover our costs and any fine imposed by the courts Legal expenses insurance may cover the costs of your own lawyers and possibly any experts that you engage to help you with your case, but it is very unlikely to cover anything else. You should also be wary of the type of cover you may have in place. Some insurance policies will cover your legal fees from the date the summons is issued, while others kick-in much earlier at the point that an investigation is started against you. Crucially, as a matter of public policy, you cannot insure against a fine imposed by the courts and so irrespective of whether you have your legal costs covered, you will never have insurance for any fine imposed by the court. If you are convicted, insurance doesn’t cover costs awarded against you that have been incurred by the prosecution and HSE in investigating and prosecuting the case, so you have to pay those too. Insurers rarely cover cases that are heard in the Crown Court. Myth four: Even if I am found guilty, I will only face a fine It is accepted law that when a company is found guilty of health and safety offences it must pay the fine imposed by the court and the costs of the prosecution and the costs of the HSE’s investigations. In simple magistrates’ court cases, HSE legal and investigation costs alone can exceed £10,000, and that is before any fine or your own defence legal costs are considered. Being prosecuted is an expensive business. Importantly, from January 2009, new legislation has created the power for courts to imprison individuals for breaches of health and safety, so while a company cannot be jailed, individuals certainly can. Myth five: Fines in health and safety cases are small Fatal accident cases regularly result in fines of £250,000 or more, and now even cases that involve minor injuries or in fact, no injuries at all, can attract fines in excess of £10,000. Setting the level of fines for corporate defendants has always proved a headache for the courts. There is little guidance to the courts on what appropriate fines should be although it is accepted practice that fines should be significant enough to not go unnoticed by the company. The average fine on conviction for health and safety offences in 2007/08 was £12,896. Myth six: Prosecutions are rare Between 1999 and 2008 there were 17,094 prosecutions brought by the HSE or local authorities for health and safety breaches. Of these, some 13,570 resulted in convictions – giving a conviction rate of 79%. Over the same period, the HSE and local authorities also issued a colossal 145,105 Enforcement Notices to businesses. Myth seven: Accepting an improvement or prohibition notice has no real consequences Improvement and prohibition notices are issued on a regular basis by the HSE but few businesses realise their significance. Firstly, enforcement notices are matters of public record, accessible to anyone at hse.gov.uk/notices/. It is also often argued by the HSE in a prosecution that accepting an enforcement notice is accepting that you have broken the law. After all, with improvement notices in particular, the HSE Officer cannot issue a notice unless they believe you have broken the law. If you accept the notice, it is often argued by the prosecution that you accepted the breach of the law. Myth eight: Health and safety is only an issue for the company Under the Health and Safety at Work Act 1974, duties and responsibilities are imposed on directors, managers and employees as individuals. Not only does the employer owe a duty to the employees, the employees owe themselves and fellow employees a duty to take reasonable care for their health and safety. - See more at: hji.co.uk/blogs/2009/07/the-importance-of-health-and-s/#sthash.SPYmYxk1.dpuf
Posted on: Mon, 09 Sep 2013 18:23:51 +0000
Trending Topics
Recently Viewed Topics
© 2015