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:
• Self-employed individuals
• Owners of workplace premises
• 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
• 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.