Category: Health & Safety

Health & Safety: A cautionary tale arising out of a recent appeal to the Court of Appeal (Criminal Division)

Health & Safety: A cautionary tale arising out of a recent appeal to the Court of Appeal (Criminal Division)

Health & Safety at Work

The recent decision of the Appeal Judges to reject the submissions on behalf of a defendant company is a reminder of the liabilities of a business for the actions, sometimes very foolish, of its employees.

The case was Polyflor Ltd v Health & Safety Executive which was heard on 8th July 2014.

Polyflor Ltd was a Manchester-based company specialising in the manufacture of commercial and domestic vinyl flooring.

It had 350 employees and used a machine called a granular infeed conveyor which enabled the recycling of unused vinyl products fed in between conveyor belts and lifted to a granulator before the resultant product was then fed into a suction pipe and taken to another stage to sort what had been produced into neat pieces prior to bagging.  It was a specialised and complex piece of machinery.

On 28th February 2013 at Manchester Crown Court, after a trial lasting 4 days, the company was convicted unanimously by a jury of an offence of failing so far as reasonably practicable to ensure the health and safety of its employees contrary to section 33(1) (a) of the Health and Safety at Work, etc, Act 1974 (‘the 1974 Act’).  The applicant was fined £7,500 and ordered to pay £34,000 in costs.

What happened?

A Technical Support Engineer was performing maintenance activities on the machine following a blockage incident when the spanner he was holding was plucked into the fast moving machinery before he was able to release his grip and, as a consequence, he suffered a fractured arm and was off work for 7 weeks.  In many ways, it might be said, he was fortunate, to get away with just a broken arm but be that as it may there are principles to remember arising from this case.

There had been a not dissimilar incident involving this machine not very long before this accident and lessons had been learnt; access and visibility issues had been addressed and even the victim of the earlier incident was able to advise the company on ways it could improve the safe maintenance of it and many of his recommendations were implemented.

However despite the improvements and the fact that the Engineer on this occasion had requested permission to work on the jammed machine he agreed in cross examination that he had been blasé and that he had taken a risk.

Could the company escape liability for the foolish actions of its employee?

No, the Court of Appeal said the creation of a material risk by the carelessness (including gross carelessness) of an employee remains a material risk for the purposes of section 33(1) (a) of the 1974 Act.  The prosecution needed only to adduce some evidence of exposure to risk – in other words, some evidence that an employee was, or employees were, exposed to a possibility of danger. Once that is established the onus shifts to the defendant company to show on the balance of probabilities that it did all that was reasonably practicable to ensure that its employee was, or its employees were, not exposed to such risk.

So the pressure very much remains on companies to be very alert to the potential for risky actions of employees and to assess the reasonable practicalities of averting such behaviours.

If your company is facing an investigation by the HSE then approaching a law firm with expertise in this field and the resources and contacts to make the difference should be at the top of your list.

 This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice.  Newnham &   Jordan Solicitors cannot accept  responsibility for   any loss as a result of acts or omissions taken in  respect of this   article or any external articles it may refer or link to.

 

 

 

Operation Safeway concluded successfully

You’re probably wondering what exactly Operation Safeway was all about and what relevance does it have to road traffic?

As it happens Operation Safeway, which was concluded on 10th January 2014 and has a great deal of relevance to urban road safety, drivers’ habits and indeed the conduct of cyclists.

Operation Safeway was the Metropolitan Police’s response to an alarming and widely reported increase in cycling deaths on the streets of the capital

It involved flooding the streets of London with 2,500 police officers at road junctions and at many other locations on the capital’s streets and needless to say thousands of road traffic offences were detected as a direct consequence affecting drivers and cyclists alike.  The statistics published for this aptly-named operation include figures for Fixed Penalty Notices [FPNs] issued against both drivers and cyclists.

The figures, while perhaps predictable enough, are worth reviewing:

  • Contravening traffic signals (red lights): 1,113 FPNs/reports for summons
  • Using a mobile phone while driving: 2,597 FPNs/reports for summons
  • Failing to wear a seatbelt: 2,484 FPNs/reports for summons
  • Driving without due care and attention: 93 FPNs/reports for summons
  • Other matters (e.g. driving without insurance, defective vehicles, bald tyres and so on) = 3,853 FPNs/reports for summons

10,140 drivers received FPNs or reports for summons

Cyclists were also monitored carefully and 4,269 individuals were the subject of FPNs or reports for summons of which the two most prevalent offences were using a pedal cycle at night without lights and contravening traffic signals.

An urban area like London is inevitably going to see a concentration of certain types of offence and the wide use of mobile phones whilst driving is perhaps no great surprise although there can be no excuse for it.  However the numbers of drivers not bothering to buckle up is depressing some 31 years after it became compulsory for drivers and front seat passengers to wear seat belts.

The seriousness of this is reflected in a maximum fine of £500 for the failure to wear a belt and of course the law has been considerably extended since 1983

Traffic signal offences were also prevalent in the figures and again in the capital with its huge number of junctions this is unsurprising but it is also worth observing that contravention of traffic signals – disobeying a red light – is the third most common road traffic offence in this country according to one leading online insurance broker.

TS10, the code for this offence, carries 3 points and discretionary disqualification plus the standard victim surcharge at a court hearing, as well as the considerable likelihood of increased insurance premiums

As Operation Safeway progressed and as the weeks passed the need to issue FPNs declined noticeably as attitudes changed, London’s roads became somewhat safer, and that must be the positive side of this story.

Newnham & Jordan can advise you on all road traffic legal matters including potential insurance offences.

 Call us now on 0845 680 7871

This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice. Newnham &   Jordan Solicitors cannot accept  responsibility for   any loss as a result of acts or omissions taken in  respect of this   article or any external articles it may refer or link to.

Operation Safeway concluded successfully
Health & Safety Investigation?

Health & Safety Investigation?

So what might be the implications of a conviction?

First of all it helps to know just how common prosecutions are and how successful they are.

In the period 2010/11 statistics show there were 551 cases prosecuted by the HSE (and the Office of Rail Regulation). The prosecutors achieved a high conviction rate of 94% but local authorities did even better, achieving a conviction rate of 97% in the 129 cases they brought in the same period.

What will be the impact on my business?

It is no exaggeration to say that an HSE or local authority prosecution can have far-reaching implications both on the business and the individuals running it. It is vital to understand that it is a criminal offence to breach the obligations contained within Health & Safety legislation.

Fines are the most common outcome

Safety breaches of the most serious nature routinely attract fines in the hundreds of thousands of pounds. Invariably there will be an application to pay the prosecution’s costs and while that may be open to challenge it still means the business can be hit very hard financially.

Damage to Reputation is another consideration that can long outlast the financial impact

Nowadays companies often seek to scrutinise the safety record of their potential business partners and it has become commonplace to request details of “safety” convictions on tender questionnaires.

The position of individuals in workplace accidents

Inspectors routinely assess the role of individuals. Whilst courts may not impose the largest fines, the impact on the individual will almost certainly be far-reaching.

Imprisonment is an ever present possibility for breaches of Health & Safety legislation, with sentences of up to 6 months in the Magistrates Court and of up to 2 years in the Crown Court. Convictions will often have other unwelcome consequences, such as restrictions upon foreign travel which for a business may present a commercial difficulty of its own, particularly in the case of the smaller business.

So who can be prosecuted for Health & Safety offences?

There are a number of distinct groups that can face prosecution for breaching Health & Safety regulations and the range is wide. It includes:

• Employers
• Self-employed individuals
• Owners of workplace premises
• Employees
• Designers, manufacturers, importers or suppliers of work equipment

What is the criteria for a prosecution?

These are examples where the HSE are very likely to prosecute:

• Death arose out of a breach of legislation
• There was evidence of a reckless disregard of Health & Safety requirements
• Obstruction of inspectors acting in accordance with their duties
• False information has been provided or there was an intent to deceive

It is not all doom and gloom though

In some less serious cases it may be possible to influence the enforcing body’s decision whether to prosecute. Examples of positive steps that can make the difference include:

• Cooperation with the regulator’s investigation
• Readily accepting an invitation to send a representative of the business to an interview under caution or by providing written answers to questions under caution
• Providing evidence that robust rectification procedures have been introduced independently of the investigation

Insurance cover

• Many insurance policies will include legal expenses cover in the event of an investigation and criminal prosecution for a safety-related breach
• Typically insurance companies have panels of law firms and will refer their insured to them for legal advice. However, a business can still properly consider the desirability of representation by a specialist lawyer of its own choice
• Although there will be indemnity for defence costs, any fine imposed following conviction certainly will not be covered. Similarly, where there is an order to pay the prosecution’s reasonable costs in bringing the case, these costs are rarely covered by business insurance

Newnham & Jordan Solicitors are able to assist and advise you with regard to a variety of Health & Safety and Regulatory issues.

 Call us now on 0845 680 7871

This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice. Newnham &   Jordan Solicitors, in Wimborne Dorset, cannot accept  responsibility for   any loss as a result of acts or omissions taken in  respect of this   article or any external articles it may refer or link to.

 

 

 

Mustard or Molluscs?

Food Health and safety regulationsWhat can possibly be the matter with these foods?  Well, food businesses need to be mindful of the Food Safety Information Regulations 2013  which come into force on 13th December 2014 and which have real significance for the presence of allergens – and both mustard and molluscs are right up there along with the likes of peanuts, soya and cereals.  There are 14 allergens listed in the new Regulations and if a food product, menu dish or food accompaniment contains any of them the consumer will need to be advised before they consume the food in question.

Many businesses will rightly consider they already do supply and serve safe food but under the new regulations they must provide safe food that is honestly described and presented.  This will be key.

There’s still some time to go and specific guidance on how to comply with the Regulations has yet to be issued but initiating a thorough review of all food safety procedures already in place maybe just as important preparation as the creation of a seafood feast.

Michael McGhie,  at Newnham & Jordan Solicitors is experienced in the defence of  Health & Safety prosecutions brought by the Health & Safety Executive or Local Authorities.  Cases include acting for small to medium sized businesses; various matters including food safety, industrial injuries arising from unguarded machinery (including serious accidents arising from reckless operation by employee, investigations into asbestos removal processes and precautions, and issues with hazardous working practices such as unsafe securing of ladders to exterior of building and consequent serious injuries suffered by employee in accident).

 At Newnham & Jordan Solicitors we are able to assist and advise you with regard to a variety of Regulatory issues including Food Safety, Health & Safety industrial injuries arising from unguarded machinery (including serious accidents arising from reckless operation by employee, investigations into asbestos removal processes and precautions, and issues with hazardous working practices such as unsafe securing of ladders to exterior of building and consequent serious injuries suffered by employee in accident).

 Call us now on 0845 680 7871

This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice. Newnham &   Jordan Solicitors, in Wimborne Dorset, cannot accept  responsibility for   any loss as a result of acts or omissions taken in  respect of this   article or any external articles it may refer or link to.

Mustard or Molluscs?