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Unsafe myths

In seeking to counter some health and safety myths in the flooring industry, we sought the views of two lawyers on where they see problems appearing.

HEALTH and safety law is central to regulatory intervention. But this wasn’t always so, and as a result, myths have become entrenched in operations leaving some unable to tell fact from fiction.

But as soon as an incident occurs management quickly see the myth-based traps that they have just walked into.


In seeking to counter some of these myths, we sought the views from two lawyers on where they see problems appearing. In this, the first part, we spoke to Paul Verrico, partner in the Eversheds Sutherland EHS team.


Myth No 1:
We can delegate our liability to our contractor

Many firms see the attraction of using contractors. But for Verrico, the ability to pass on liability is not one of them; he observes that for decades there have been prosecutions of those that have failed to properly manage contractors.


As he explains: The use of contractors forms part of a client’s ‘undertaking’ – that is, the way it runs its business – and therefore invokes a duty of care under Section 3 of the Health and Safety at Work etc Act 1974.’


The natural question is that if the appointment of contractors does little to mitigate liability, why use them at all? There are, of course, two good reasons – contractors are often experts in what they do; and contractors may be able to ‘bulk buy’ labour in a way that a client cannot.


Nevertheless, Verrico sees a conundrum – accepting a duty of care in a situation when the client does not have the expertise and/or the resource necessary to provide constan t specialist support.

Helpfully, he says that ‘the legal duty of care requires clients to do only what is ‘reasonably practicable’.’ To this he adds: ‘There’s an acceptance that clients need to rely on the expertise of a contractor in the right circumstances and that a client may need to trust a contractor to ‘do the right thing’ when they’re not around.’


As to what is regarded as ‘reasonably practicable’, Verrico points to what has been laid out by the Health and Safety Executive (HSE) – the need to plan work appropriately; select the most suitable contractor; ensure the contractor is provided with the right information; provide suitable monitoring and supervision; and regularly review the contractor’s performance.


Verrico explains each of the steps should be ‘proportionate to the risk of the work being performed as well as other factors such as previous experience with the contractor’.


Myth No 2:
Mental health at work isn’t regulated and therefore we don’t have duties under safety law
In the past few years awareness and education around mental health and wellbeing has improved societal attitudes. This, according to Verrico, ‘has assisted in reducing the stigma and prejudice associated with these unseen illnesses; the shift in attitudes has encouraged organisations to direct focus on the ‘health’ in health and safety management’.


None of this should be new to management for, as Verrico says, ‘organisations have a duty to assess levels of work-related mental health issues and implement measures to remove or reduce identified risks as far as reasonably practicable’.


He details how guidance from the HSE focuses on work-related stress but also acknowledges that work can aggravate pre-existing conditions and can bring on symptoms or make them worse.

‘Organisations,’ says Verrico, ‘often fail to address these risks and frequently wellbeing in the workplace is forgotten.’ He continues, noting ‘the number of suicides has increased year-on-year since 2013. As an unnatural death they’re referred to the coroner’s service for investigation’.


Verrico tells how, when considering such cases, enquiries will often extend to the suitability and implementation of workplace wellbeing frameworks: ‘A focus on training, signposting of services, disciplinary communications and line manager check-ins to consider workloads and concerns, are all matters that I would seek to explore.’


And if there are inadequate procedures and assessments, failures in training managers and educating the workforce on mental wellness, he warns an organisation may find itself subject to a Prevention of Future Death Report.


Myth No 3:
Only companies that don’t care about health and safety have accidents
Any organisation can have an accident and Verrico knows they happen when a series of events or circumstances come together. Referring to what’s known as Reason’s Swiss cheese model, he explains that ‘an organisation that prioritises health and safety will often have more layers of defence to those factors lining up, but it doesn’t mean they cannot or won’t line up’.


As he says, ‘no employer can eliminate all risks – even the best are vulnerable to unwanted events and sometimes the events that lead to an incident are only a hair away from no incident happening at all.’


So why do incidents happen? In answer Verrico says that there is never usually one reason, but there is usually complacency, stagnation, or a culture that the health and safety job is done. That’s why he says: ‘it’s so important for organisations to regard health and safety as an ongoing business critical risk, monitored at the highest levels and periodically revisited’.


A key point he makes is the ‘well-known health and safety risks have been joined by psychosocial risks around work related stress, mental health, and wellbeing that employers are obligated to manage’. For him, it’s only a matter of time before these new risks become subject to enforcement – ‘the legislation is there to do it’.


In his view, ‘the real measure of an organisation is how it evolves its culture after an accident to make what is an awful situation into one which puts health and safety at the heart of everything it does’.


Myth No 4:
Good health and safety advisers just tell people off when things go wrong

For many, references to health and safety conjure up negative stereotypes, and ‘quite often,’ Verrico says, ‘this includes descriptors about health and safety advisers being ‘fun spoilers’, ‘killjoys’, or ‘bureaucrats’.


However, in his view, ‘it’s an unfair, misleading and an unhelpful myth that needs busting’. He refers to 1972 when Lord Robens published his report into health and safety regulation in the UK. Written in the wake of the Aberfan disaster, six years earlier, ‘the report recommended wholesale revisions to the old Factory Inspectorate regime which led to the ‘90s introduction of new health and safety regulations, and an increase in corporate governance, leadership, and a standards-driven approach to health and safety’.


Further, Verrico notes: ‘The Management of Health and Safety at Work Regulations 1992 introduced responsibilities upon employers to carry out risk assessments and health surveillance as well as requirements relating to the sharing of information with employees; and competence, capabilities and training.’


Turning to the role of the health and safety adviser, Verrico says it’s ‘to assist organisations in implementing strategies and control measures that appropriately address risks arising in the workplace, and to ensure that hazards are controlled’.


Notably, he says, the regime requires advisers ‘ensure all employees understand the health and safety systems in place within the business, importantly, why, and how these are designed to protect them, and what they must do to protect themselves’.


The role, says Verrico, necessarily requires ‘engagement and co-operation with the workforce, to secure their buy-in to those safety arrangements, and thereby encourage compliance with the organisation’s safety policies and procedures’.


From his perspective, good health and safety management systems recognise that compliance cannot be achieved by ‘unilaterally imposing rules and seeking to enforce them’. Rather, they seek to engage, discuss, and involve the workforce in those rules and procedures.


Myth No 5:
Even if the HSE investigates, unless it prosecutes, we won’t be hit with costs

Following a conviction for a health and safety offence, the HSE will seek to recover its investigation and legal costs. However, it often comes as a surprise that it can also charge for time spent investigating matters that don’t result in legal proceedings.


Verrico says since its controversial introduction in 2012, ‘when the HSE inspects a company and identifies a material breach of the law, the company will have to pay a fee for intervention – FFI’. He details how work undertaken by the HSE is recorded on an hourly basis and includes time spent identifying the breach, the provision of advice to rectify the breach and also investigate and take enforcement action.


He explains that a material breach occurs where ‘the HSE inspector deems it to be serious enough to notify the company in writing… normally be in the form of a Notification of Contravention.’ That said, HSE inspectors are required to apply HSE guidance to their decisions and any enforcement decision should be based on the principles of the HSE’s enforcement decision-making frameworks.

Even so, Verrico says ‘the subjective nature of the FFI regime has attracted much criticism’.


He tells how many labelled the scheme as unfair and argued ‘it was particularly unjust for the HSE to play judge, jury and executioner’. But having faced the threat of a Judicial Review in 2017, the HSE introduced an independent panel to decide invoice disputes – ‘this,’ he says, ‘is generally accepted to be working well and has provided much needed transparency’.


His advice to companies is to carefully scrutinise FFI invoices upon receipt and raise any queries promptly with the HSE: ‘With a current hourly rate of £160, FFI invoices can be significant, particularly where multiple site inspections or specialist support is engaged by the HSE for complex issues’.


HINDSIGHT is a wonderful thing, but when it comes to health and safety law it’s akin to playing Russian Roulette with not only human life but also the survival of a business. And with many managers operating according to a set of myths, it’s only a matter of time before they become entangled with the authorities.


In this part, we spoke to James Lowe, regulatory partner in the commercial litigation department at Wright Hassall, on the health and safety myths that he regularly must bust.


Myth No 6:
Government’s Covid restrictions have been removed, so companies don’t need specific measures in the workplace

Lowe says employers have a legal responsibility under the Health and Safety at Work etc. Act 1974 to ensure the health, safety, and welfare of their employees whilst at work and other persons, so far as reasonably practicable. He says, though, that ‘this general duty to protect employees and others from harm and to take reasonable steps to protect those in the workplace is not a static obligation – it needs to be reviewed regularly’.


In his view, the pandemic is a dramatic example of a new risk to workplaces which should be assessed and addressed whether Covid legislation specifically requires it.


Lowe continues: ‘Since the pandemic began, government has published Workplace Guidance which it updates each time national restrictions change. This guidance doesn’t supersede employers’ existing legal obligations relating to health and safety.’ His point is that the guidance is likely to be considered the minimum that businesses need to implement when complying with general health and safety obligations.


So, his advice – for the moment at least – is that when employers carry out health and safety risk assessments, ‘the risks concerning Covid-19 should always be included, and reasonable steps taken to ensure risks are mitigated so far as reasonably practicable’.


And to embellish the point, he adds that ‘as local or national Covid-19 restrictions change, employers should continue to update their Covid-19 risk assessments and if necessary, the measures are in place to reflect any changes’.


It’s important to remember the HSE and local authorities are the lead enforcement authorities for all health and safety legislation, and ‘this,’ says Lowe, ‘includes Covid-19 compliance and enforcement’.

Any business failing to address Covid-19 related risks in the workplace may therefore face improvement notices, prohibition notices, investigations, and prosecutions.


Myth No 7:
Health and safety management systems just cause red tape

The second problem area for Lowe is that relating to health and safety management systems – the formal framework to help an organisation manage and improve its health and safety. He notes that ‘they’re not legally mandatory, so businesses can choose whether to have one – and many avoid what they perceive to be unnecessary bureaucracy. But regardless, what is needed in any organisation is a culture of safety, whether or not a formal health and safety management system is used’.


He reiterates the point that employers have a legal obligation to manage health and safety risks in their business. This is why he thinks that by establishing a health and safety management system ‘an organisation should be able to demonstrate that it has identified and considered such risks and can address them to ensure that they are managed and controlled’.


The system doesn’t have to be complex. In fact, Lowe thinks ‘a simple, straightforward system, with clear responsibility and a structured approach to assessing, controlling, and monitoring will not only contribute to an organisation meeting its legal obligations, but will demonstrate to employees that they are valued at work and that their health, safety, and wellbeing is prioritised’.


He knows from experience that this will also improve the culture of health and safety in organisations and should, in theory, reduce workplace accidents and ill health – which he says, ‘is the ultimate purpose of all health and safety systems’.


Further, and with an eye on the bottom line, there’s evidence that having an established health and safety management system in place will reduce certain insurance costs, increase the likelihood of attracting investment into a business from financial institutions and others.


Myth No 8:
I cannot be liable for the consequences of my actions in the course of my employment

This is an important myth to dispel in Lowe’s opinion. He says: ‘It’s settled law that an employer can be held responsible for the actions of their employee if such actions were committed during their employment. This is known as vicarious liability.’


He carries on to explain ‘that employers in businesses are usually legal entities such as companies, so if an employee acts negligently or illegally, a company may end up being prosecuted’.


But worryingly, not many realise that in relation to health and safety legislation, there are, says Lowe, ‘situations where individuals can also be held personally liable for their actions, even though these were undertaken as part of their job. Employees may be prosecuted if they haven’t discharged their individual duty to take reasonable care for their own health and safety and that of others who are affected by their acts or omissions’.


It’s just as pertinent to note directors and officers of a company are firmly in the firing line and can be personally prosecuted if a company commits a health and safety offence which can be shown to have been committed through their consent, connivance, or neglect.


On this Lowe details that ‘the Health and Safety Executive has used its powers much more frequently in recent years; fines on conviction can be considerable and custodial sentences are more likely since the introduction of the Definitive Guideline for sentencing Health and Safety Offences’.


Myth No 9:
Fines for breaching health and safety laws aren’t significant

Another worry for Lowe is that some ignore the law since they believe that if they’re caught that the penalties will be trivial. The reality, says Lowe, is that ‘there are various penalties for breaching health and safety laws depending on which laws are breached, and the circumstances of the particular matter’.


It should be noted that prior to 2015, the maximum fine that could be imposed on a company in a Magistrates’ Court was £20,000 per offence, although it was unlimited in the Crown Court. That upper limit has now been removed in the Magistrates’ Court and unlimited fines can now be imposed in both jurisdictions.


As to what may be levied, Lowe points to the Definitive Guideline for sentencing Health and Safety Offences. It sets out the scope and parameters for sentencing such offences and have ‘led to significant increases in the fines imposed by the courts which now take in to account a company’s turnover, as well as culpability, harm and other factors when considering the appropriate penalty in any prosecution’.


Notably, 2021 saw some of the highest ever penalties for health and safety breaches. Here Lowe cites the largest fine of £4m plus costs was given to National Grid Gas plc (see Myth No 5). Then there’s the cases involving British Airways, Essex Partnership University NHS Foundation Trust, Enterprise Managed Services, and Drayton Manor theme park – all of which were fined over £1m where fatal injuries had occurred.


Other cases to note are Aster Healthcare Ltd, which was fined £1m for corporate manslaughter after the death of an elderly woman at a nursing home in Bracknell and other workplace accidents at Nestle and Young’s Seafood have led to significant fines.


As Lowe summarises: ‘Businesses cannot count on fines for breaching health and safety laws being insignificant. In all likelihood the contrary will be true on conviction. The costs to the business may be enormous and it is vitally important to secure early legal representation when an incident occurs.’


Myth No 10:
HSE won’t prosecute as there was no accident

The very last myth Lowe busts is that prosecutions only follow on from accidents. While he says many health and safety prosecutions occur after an accident or death in the workplace, ‘many of the fines handed out in 2021 – including the largest – resulted from a risk of harm, rather than an incident occurring that led to injury or death’.


In the example noted in Lowe’s fourth myth, National Grid Gas plc was fined £4m for failing to ensure its records relating to gas risers in some high-rise multi occupancy building were up-to-date, even though this failure had not actually resulted in an accident or death.


National Grid Gas operates the nationwide gas transmission system and the gas distribution systems supplying gas to approximately half of the UK domestic and industrial gas customers, including the gas pipes in high rise multiple occupancy buildings (HRMOBs).


Lowe explains that in 2016 it sold part of its operations to Cadent Gas Ltd, including inspection and routine maintenance obligations in various HRMOBs. ‘It was subsequently discovered that incomplete records about the HRMOBs were transferred to Cadent who therefore were unknowingly inspecting only a portion of the buildings for which they had become responsible. Routine safety inspections on hundreds of properties therefore did not take place for many years creating a risk of harm.’


He adds that after this discovery was made by the HSE in 2018, Cadent took appropriate remedial action. National Grid Gas were prosecuted for its failings, and pleaded guilty to breaching health and safety law, resulting in the hefty fine: ‘It was shown that National Grid Gas didn’t have a robust system for recording the details of the gas pipes within HRMOBs, and when the data error had been identified, it had failed to act to correct these.’


Summary
So, with these 10 myths debunked, health and safety offences don’t only relate to situations where harm is caused, they can also centre around omissions in administrative processes that have the potential to cause harm. When these failures, and their possible consequences come to the attention of the authorities, they’ve shown they’ll not hesitate to prosecute.

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