Article detailing Health and Safety Laws in the UK
- Criminal & Civil laws
- The HSE at Work act 1974
- Enforcement of HSE Policy
- Company Directors Disqualification Act 1986
- Corporate Manslaughter Legislation
1. Criminal & Civil Laws
Laws are written codes of conduct setting rules for individual behaviour for the good of society have existed since Egyptian times, some 3000 years BC.
The law is the cement of society and an essential medium for societal change.
The law is divided into two branches (or systems), civil and criminal which have different purposes. Any given event may give rise to both civil and criminal consequences.
Criminal law: if minimum legal standards are not met the enforcing authority may prosecute the offender in the criminal courts.
Civil law: if an individual suffers loss (injury / ill-health or death) the victim, or his dependants, may sue for damages (compensation) in the civil courts.
- What is duty of care in regards to contractors?
- UK HSE Enforcement Policy
- 6 steps to effective safety management
Civil and Criminal Consequences
Consider an accident in which an employee cuts off their fingers using an unguarded band saw.
They could take a civil action against their employer, blaming the employer for negligently causing his injury and seeking compensation (damages) for their loss.
A criminal prosecution may also be taken by the HSE (assuming the accident was reported, or the HSE was otherwise made aware). The purpose of the prosecution would be to punish the employer (through a fine and/or imprisonment) for failing to comply with health and safety legislation (the guarding requirements of the Provision and Use of Work Equipment Regulations – PUWER).
The key differences between civil and criminal law are shown in table 5.
|Civil Law||Criminal Law|
|Tort e.g. negligence||Crime e.g. breach of Health and Safety at Work Act or specific regulations|
|Civil wrong||Criminal offence|
|Wrong to an individual||Offence against society|
|Action taken by injured party||Prosecution taken by enforcing authority / Crown Prosecution Service|
|Heard in civil court||Tried in criminal court|
|Loss necessary for action||Loss not necessary|
|Seeks compensation for loss||Seeks to punish for breach of law|
|Liability proved on the “balance of probabilities”||Guilt proven “beyond all reasonable doubt”|
|Can be insured against (Employers Liability Insurance is generally compulsory)||Cannot be insured against fines|
When an employee is injured at work and seeks to make a personal injury claim the employee may sue under the tort of negligence, or the tort of breach of statutory duty.
Negligence may be explained as careless conduct injuring another. For the injured party (claimant) to succeed in a negligence claim, he must prove:
- That the defendant (usually the employer) owed him a duty of care;
- That this duty was breached; and
- That the claimant was injured as a result of the breach.
The Duty of Care
Prior to 1932 there was no generalised duty of care in negligence. The tort was only applied in particular situations where the courts had decided that a duty should be owed, such as road accidents or dangerous goods.
In Donoghue v Stevenson (1932) Lord Atkin attempted to lay down a general principle which would cover all the circumstanceswhere there could be liability for negligence. He said:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
The requirements that must now be satisfied before a duty of care is held to exist were established by Lord Bridge in Caparo Industries v Dickman (1990):
- Foreseeability of the damage, i.e. whether a ‘reasonable person’ would have foreseen damage in the circumstances;
- A sufficiently ‘proximate’ relationship between the parties (i.e. a neighbour relationship); and
- It must be fair, just and reasonable to impose such a duty.
Relationships that are sufficiently proximate to be deemed a neighbour relationship include:
- Employer to employees;
- Employer to contractor and contractors employees; and
- Occupier to authorised visitors.
The common law duty of care owed by an employer to its employees was defined in the case of Wilson’s and Clyde Coal Co v English (1938). In this case, the employer was compelled by law to employ a colliery agent who was in charge of safety in the mine. Nonetheless, when an accident occurred, the employer was held liable. The case confirmed that the employer’s duty of care to his employees was personal and could not be delegated to a manager or safety advisor.
The case also determined that employers must provide:
- A safe place of work and equipment;
- Safe systems of work; and
- Reasonably competent co-workers.
Breach of the Duty of Care
The duty of care is breached if the defendant has failed to exercise the reasonable care expected of a reasonable man in the circumstances.
Breach Caused the Injury
The claimant must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm and that the harm would not have occurred “but for” the negligence of the defendant.
Contributory Negligence – Contributory negligence arises when the claimants own carelessness, or disregard for personal safety, contributes to the injury or loss which arises partly because of the claimants own fault and partly because of the fault of another (the defendant). Damages recoverable in respect of the claim will be reduced to the extent the court thinks is fair having regard to the claimant’s share of responsibility for the damage.
Vicarious Liability – In general terms vicarious liability is a legal liability imposed on one person making them liable for torts committed by another. With regard to a personal injury claim for an accident in the workplace if an employee, acting in the course of normal employment injures another employee the employer will be held vicariously liable for the losses incurred.
Limitations Act 1980 – The Limitation Act 1980 sets a time limit for starting proceedings for claiming compensation for personal injury. This is primarily three years from the date of the negligence that caused the harm, or in the case of disease three years from the date of diagnosis. This primary limit may be extended in the following circumstances: If the injured person is suffering from mental disability then the time limit does not start to run until mental capacity has returned; and
- For minors (under 18 years of age on the date that they were injured) the three year period does not start running until the eighteenth birthday.
The courts also have discretionary powers to alter the time limits but such discretion is rarely exercised.
Damages – ‘Damages’ refers to the payment of financial compensation for a tort. In principle the claimant is entitled to full compensation for any losses incurred. The intention is to put the complainant in the same position as if the tort had not been committed. The damages that can be recovered as a result of a successful personal injury claim fall into two categories:
- General Damages – Actual and/or probable loss of future earnings, to be incurred after the case; and
- Special Damages – Quantifiable losses incurred before the case, mainly loss of earnings and medical expenses.
Employers Liability Insurance – The Employers’ Liability (Compulsory Insurance) Act 1969 requires most employers to have at least £5 million pounds of insurance cover (most policies offer at least £10 million of cover) available for compensation payments to employees injured or made ill as a result of work. The exceptions to the Regulations include businesses with no employees, family businesses and public organisations such as a local authority or NHS Trust.
Civil Procedures Rules – The Civil Procedure Rules came into action in 1999 with the aim of ensuring that cases are dealt with in a just way and removing control of cases from legal professionals to the court. In addition Lord Woolf’s Access to Justice Report of July 1996 recommended the development of pre-action protocols in order to establish:
- More pre-action contact between the parties;
- Better and earlier exchange of information;
- Better pre-action investigation by both sides;
- Enable cases to be settled fairly and early without litigation; and
- Enable proceedings to run efficiently to the court’s timetable if litigation is necessary.
Pre-Action Protocol for Personal Injury Claims
Early notification – Notifying the defendant as soon as they know a claim is likely to be made, but before they are able to send a detailed letter of claim.
The Letter of Claim – Should contain sufficient information for the defendant to assess liability and the likely size of the claim.
Disclosure of Documents – Early disclosure of documents by the defendant to promote an early exchange of relevant information to help in clarifying or resolving issues in dispute.
Alternative Dispute Resolution (ADR) – Both parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, e.g.:
- Discussion and negotiation;
- Early neutral evaluation by an independent third party; or
- Mediation assisted by an independent neutral party.
The letter of claim should contain a clear summary of the facts on which the claim is based together with an indication of the nature of injuries suffered and financial loss incurred.
The letter should ask for details of the insurer and that a copy should be sent by the proposed defendant to the insurer where appropriate.
The defendant should reply within 21 calendar days of the date of posting of the letter identifying the insurer (if any) and, if necessary, identifying specifically any significant omissions from the letter of claim.
If there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings.
The defendant(’s insurers) will have a maximum of three months from the date of acknowledgment of the claim to investigate and reply stating whether liability is denied and, if so, giving reasons for their denial of liability including any alternative version of events relied upon.
If the defendant denies liability, he should enclose with the letter of reply, material documents which would be likely to be ordered to be disclosed by the court.
If the defendant admits liability he will be bound by the admission for all claims up to a total value of £25 000.
2. Health & Safety Act 1974
The Health and Safety at Work Act is still the main health and safety legislation in the UK. It is an Act of Parliament (primary legislation) that prescribes general duties to all at work, regardless of the work activity or context. Failure to comply with a duty under the Act is a criminal offence which may be punished by fine or imprisonment (see table 7)
Regulations – Section 15 of the Health and Safety at Work Act enables the relevant Secretary of State to make health and safety regulations. Regulations (statutory instruments / secondary legislation) are usually more detailed than the general duties of HASAWA and are usually problem specific (e.g. noise, hazardous substances) many regulations are prompted by European Directives. Failure to comply with a Regulation is a criminal offence which may be punished by fine or imprisonment.
Approved Code of Practice (ACoP) – An Approved Code of Practice (ACoP) gives practical advice on how to comply with the law. If the advice in the ACoP is followed compliance with the law is assured in respect of those specific matters on which the ACoP gives advice.
The ACoP has special legal status. In a prosecution for a breach of health and safety law, if it is proved that a relevant provision of the Code was not followed; compliance with the law in some other way must be proved.
Guidance – guidance is not compulsory and other action may be taken. Following guidance will normally be enough to demonstrate compliance with the law. Health and safety inspectors are likely to refer to guidance as an illustration of good practice.
Levels of Legal Duty within the HSE ACT
Duties in health and safety law may be absolute (i.e. must be done) or may be qualified. The two major qualifications of health and safety law are those imposed by the phrases ‘practicable’ and ‘reasonably practicable’.
Absolute Duties – Usually preceded by the word ‘shall’ an absolute duty must be complied with. The employer has absolute duties to prepare a safety policy and to undertake risk assessments.
Practicable – If a duty applies so far as is ‘practicable’ it is a less onerous duty than an absolute one. Practicable means feasible in the light of current knowledge and invention, i.e. if it can be done it must be done.
Reasonably Practicable – Reasonably practicable requires the degree of risk (likelihood x severity) of a particular activity or environment to be balanced against the costs (time, trouble and physical difficulty) of taking measures to avoid the risk.
The greater the risk, the more likely it is that it will be reasonable to go to very substantial expense, trouble and invention to reduce it.
If the consequences and the extent of a risk are small, the same substantial expense would be considered disproportionate to the risk and it would be unreasonable to have to incur them to address a small risk.
The size and financial position of the employer are not taken into account in consideration of what is ‘reasonably practicable.’
Health & Safety ACT Objectives
- Securing the health, safety and welfare of people at work; and
- Protecting people other than those at work against risks to their health and safety arising out of work activities.
HASAWA applies to all types of work activity and situations and imposes duties on everyone concerned with work and workplace activities, including: employers, the self-employed and employees; manufacturers, designers and suppliers; and people in control of premises.
Duties are imposed on individuals and employing organisations be they corporations, companies, charities, or government departments and are intended to encourage employers and employees to take a wide ranging view of their roles and responsibilities.
Duties of Employers
General duties of employers to their employees
- Every employer has to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
- Examples of the extent of the general duty include (so far as is reasonably practicable):
- The provision and maintenance of plant and systems of work that are safe and without risks to health;
- Arrangements for ensuring health and safety with the use, handling, storage and transport of articles and substances;
- The provision of information, instruction, training and supervision to ensure, the health and safety at work of employees;
- Maintenance of any workplace, under his control, in a healthy and safe condition, including any means of access and egress; and
- The provision and maintenance of a safe and healthy working environment with adequate facilities and arrangements for the welfare of employees at work.
Duties to non- employees – Every employer has a duty to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment, who may be affected, are not exposed to risks to their health and safety.
Exmple R v Associated Octel Ltd (1994)
Associated Octel Ltd maintained its plant and equipment during factory shutdown each year. In 1990, this work was carried out by Resin Glass Products (RGP) Ltd as contractors. An employee of RGP cleaning the inside of a tank was badly burned because of an explosion inside the tank.
RGP Ltd was convicted under section 2 of the Act and Associated Octel Ltd was convicted under section 3 for failing to protect non-employees from health and safety risks from their “undertaking.”
Associated Octel appealed arguing that RGP was an independent contractor and that the work was not part of Associated Octel’s ‘undertaking’ and that s.3 did not involve liability for the actions of independent contractors.
The appeal was dismissed. The word “undertaking” means “business” or “enterprise” and this activity was clearly part of Associated Octel’s ‘undertaking’ as the tank was part of their plant and the work formed part of their planned maintenance programme.
Associated Octel should have specified the necessary requirements for avoiding risks to health and safety.
Duty of person in control of premises
Any person who has, to any extent control of:Work premises;
- The means of access or egress; or
- Any plant or substance in such premises.
Has a duty to take all reasonable measures to ensure that all are safe and without risks to health of non-employees who use non-domestic premises as a place of work or as a place where they may use plant or substances provided for their use.
The duty overlaps with the general duties of sections 2 and 3, which would take precedence when there is clearly an employer’s duty. The aim is to place a duty on whoever has the power to remedy a particular source of hazard.
Section 6 – Duties of designers, manufacturers, importers, suppliers and installers
Any person, who designs, manufactures, imports, or supplies any article or substance for use at work has duties to ensure, so far asisreasonably practicable:
- That the article or substance is safe and without risks to health when properly used;
- Any necessary research and testing or examination of the article or substance is properly undertaken; and
- Adequate information is provided to ensure its safe use.
Erectors and installers have a duty to ensure that nothing about the way in which an article intended for work is erected or installed makes it unsafe or a risk to health when properly used.
Section 7 – General Duties of Employees at Work
Every employee has the following two duties while at work:
- To take reasonable care for the health and safety of himself and of other persons who may be affected by his work ; and
- To co-operate with his employer so far as is necessary to enable the employer to comply with his own duties.
Section 8 – Duty to not interfere with or misuse anything provided in the interests of health, safety or welfare
No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare whether for the protection of employees or other persons.
NB This duty is imposed on all people, including children, be they at work or members of the public.
Offences Due to Fault of another Person
If person ‘A’ commits an offence because of an act or default of person ‘B’, then person ‘B’ may also be charged and convicted of the offence as well as, or instead of person ‘A’.
3. Enforcement of Health and Safety
The enforcement of health and safety depends upon the main activity undertaken at a place of work.
The HSE typically enforces at higher risk workplaces such as construction sites and factories.
The Office of Rail and Road (ORR) enforces on the railways.
Local Authorities (Usually Environmental Health Officers – EHO’s) enforce at lower risk premises such as retailers, offices and warehousing.
Powers of Inspectors – All authorised inspectors have the same powers, regardless of the area of enforcement. Inspectors can:
- Enter any premises which they think it necessary to enter for the purposes of enforcing health and safety law. The power of entry can be exercised without permission or prior notice, at any reasonable time or at any time if dangerous;
- Take a police constable with them if they have reasonable cause for thinking they might be seriously obstructed;
- Take any other person authorised by their enforcing authority, such as a specialist, and any equipment needed;
- Order that areas be left undisturbed; take measurements, photographs and samples, carry out tests on, and/or confiscate articles and substances; and inspect and take copies of relevant documents;
- Seize any article or substance which they have reasonable cause to believe presents an immediate danger of serious personal injury and have it made harmless, by destruction if necessary; and
- Interview and take written statements from anyone they think might give them information relevant to their examination or investigation.
Enforcement Action – Inspectors have a range of enforcement options and tools available including:
- Informal advice
- Improvement Notice
- Prohibition Notice
The best option(s) will be chosen in each case. There is no hierarchical escalation route from informal advice to prosecution.
Informal Advice – Based on level of risk and level of management cooperation an inspector may deal with a situation informally by verbal advice or an explanatory letter. Provided agreed actions are completed on time no formal action will be taken.
Improvement Notice – An improvement notice may be served whenever health and safety legislation is being contravened. An improvement notice will specify the breach of legislation and may specify a means of complying. It has to allow a reasonable time (minimum 21 days) to complete any specified works.
Any appeal against an improvement notice must be made to the Employment Tribunal with 21 days of the date of service. The requirements of the notice would be suspended until the appeal was heard.
The Employment tribunal may uphold, cancel or vary the improvement notice as a consequence of the appeal.
Prohibition Notice – A prohibition notice maybe issued when the inspector considers that there is a risk of serious personal injury. The notice prohibits the carrying on of the work activity giving rise to the risk of injury.
If the risk of injury is imminent, the notice must take immediate effect and stop the work activity at once. If not, the prohibition notice is deferred, specifying the time by which the work activity must cease.
Any appeal against a prohibition notice must be made to the Employment Tribunal with 21 days of the date of service. The notice would stay in effect until the appeal was heard.
Prosecution – Any breach of legislation may give rise to a prosecution in the criminal courts. Health and safety offences are usually ‘triable either way’, this means the case may be heard in a magistrates court or a crown court.
The sanctions available to a crown court are greater than in a magistrate’s court. Table below shows the maximum sentences available to each court for breaches of HASAWA and health and safety regulations.
HASAWA Section 2-8
Term not exceeding 6 months and/or
|Term not exceeding 2 years and/or|
|Regulations||Term not exceeding 6 months and/or|
|Term not exceeding 2 years and/or|
|* For offences committed after 12th March 2015 (Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012)|
Fees for Intervention (FFI) – The HSE now operates a Fee for Intervention (FFI) cost recovery scheme, which came into effect on 1 October 2012.
Under The Health and Safety (Fees) Regulations 2012, those who ‘materially’ break health and safety laws are liable for recovery of HSE’s related costs, including inspection, investigation and taking enforcement action.
The fee payable by duty holders found to be in material breach of the law is £124 per hour.
HSE Enforcement Policy – The HSE has published its Enforcement Policy Statement in accordance with the Regulators’ Compliance Code and the regulatory principles required under the Legislative and Regulatory Reform Act 2006.
Enforcing authorities are required to give regard to the principles when allocating resources.
The 6 Principles of Enforcement
The HSE believes in firm but fair enforcement of health and safety law informed by the following five principles.
1. Proportionality – Enforcement action should be proportionate to the risks, or to the seriousness of any breach, which includes any actual or potential harm arising from a breach of the law.
The enforcing authorities should take particular account of how far the duty holder has fallen short of what the law requires and the extent of the risks to people arising from the breach.
Duty holders will be expected to follow relevant good practise.
2. Targeting – Enforcing authority efforts should be targeted primarily on those whose activities give rise to the most serious risks or where the hazards are least well controlled.
Action should be focused on the duty holders who are responsible for the risk and who are best placed to control it – whether employers, manufacturers, suppliers, or others.
3. Consistency – Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends. In practice consistency is not a simple matter. Decisions on enforcement action are discretionary and require consideration of a range of variables including the degree of risk, the attitude and competence of management, any history of incidents or breaches involving the duty holder, previous enforcement action, and the seriousness of any breach.
All enforcing authorities are required to have arrangements in place to promote consistency in the exercise of discretion.
4. Transparency – Transparency means helping duty holders to understand what is expected of them and what they should expect from the enforcing authorities. The enforcing authorities should make clear to duty holders not only what they have to do but also what they don’t by distinguishing between statutory requirements and advice or guidance about what is desirable but not compulsory.
5. Accountability – Regulators are accountable to the public for their actions. This means that enforcing authorities must have policies and standards against which they can be judged, and an effective and easily accessible mechanism for dealing with comments and handling complaints.
6. Investigation – The following factors should be considered in determining which complaints or reported incidents to investigate and in deciding the level of resources to be allocated:
- The severity and scale of potential or actual harm;
- The seriousness of any potential breach of the law;
- Knowledge of the duty holder’s past health and safety performance;
- The enforcement priorities;
- The practicality of achieving results; and
- The wider relevance of the event, including serious public concern.
Enforcing authorities should normally prosecute in the public interest, i.e. where, one or more of the following circumstances apply:
Death was a result of a breach of the legislation;
- The gravity of an alleged offence, taken together with the seriousness of any actual or potential harm, or the general record and approach of the offender warrants it;
- There has been reckless disregard of health and safety requirements;
- There have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;
- Work has been carried out without or in serious non-compliance with an appropriate licence or safety case;
- A duty holder’s standard of managing health and safety is found to be far below what is required by health and safety law and to be giving rise to significant risk;
- There has been a failure to comply with an improvement or prohibition notice; or there has been a repetition of a breach that was subject to a simple caution;
- False information has been supplied wilfully, or there has been an intent to deceive, in relation to a matter which gives rise to significant risk; and
- Inspectors have been intentionally obstructed in the lawful course of their duties.
Enforcing authorities should identify and prosecute individuals if they consider that a prosecution is warranted. In particular, they should consider:
- The management chain; and
- The role played by individual directors and managers.
Action should be taken against them where the inspection or investigation reveals that the offence was committed with their consent or connivance or to have been attributable to neglect on their part and where it would be appropriate to do so.
In 2010/11 there were 43 prosecutions of directors under section 37 of the Health and Safety at Work Act with 35 convictions. Seven faced charges as a result of a fatal incident; 15 were prosecuted after non-fatal incidents; and 21 resulted from an investigation where no incident of any nature had occurred.
Five of those convicted were given prison sentences; and three also received prison sentences for perjury.
Fines imposed ranged from £150 to £99 900.
Where appropriate, enforcing authorities should seek disqualification of directors under the Company Directors Disqualification Act 1986.
4. Company Directors Disqualification Act 1986
The sanction of disqualification for company directors is available to the courts in England, Scotland and Wales under the Company Directors Disqualification Act 1986 (CDDA). An equivalent regime operates in Northern Ireland.
The court has the power to make a disqualification order in relation to a person who has been convicted of an indictable offence in connection with the promotion, formation, management, liquidation or striking off of a company, with the receivership of a company’s property or with his being an administrative receiver of a company.
In the context of health and safety enforcement and sanctioning, the relevant part is the conviction of an indictable offence “in connection with the management… of a company.”
“Management” is interpreted contextually. The court’s jurisdiction will only arise if there is a demonstrable link between:
- The offender and the company’s management; and
- The offence itself and the company’s management.
To be disqualified, the offender must be someone who identifiably performs a management role, or discharges or assists in the discharge of a managerial function, and the particular offence must be attributable to the activity of management.
The maximum period of disqualification is 15 years if the order is made by the crown court or 5 years if made by a magistrate’s court.
Disqualification proceedings are civil and not criminal although the disqualification order may be made following criminal proceedings by the court which convicted the person concerned.
The purpose of disqualification is directed at the protection of the public and not punishment.
In the period between the introduction of the Act in 1986 and 2005 just ten directors had been disqualified for health and safety reasons, compared to more than 1 500 for financial reasons.
In 2010/11 three directors were disqualified for periods of between four and five years.
Between 2011 and 2014 a further seven directors were disqualified for health and safety reasons.
5. Corporate Manslaughter Legislation
Manslaughter by individuals is a ‘common law’ crime. The case of R v Adomako (2005) sets out the current test to prove the offence. An individual commits (involuntary) manslaughter when he causes a death through gross negligence.
The test of whether a “company” could be found guilty of common law manslaughter was intrinsically linked to the ‘identification doctrine’. A director or senior manager (a controlling mind and will) of the company had to be found guilty, for the company to be found guilty.
There were a number of disasters in the 1980’s and 1990’s which lead to failed prosecutions for corporate manslaughter.
The Southall rail crash on 19th September 1997 resulted in 7 deaths and 151 injuries, leading to Great Western Trains (GWT) pleading guilty to contravening Section 3(1) of the Health and Safety at Work Act, and receiving a record fine of £1.5 million.
Mr Justice Scott-Baker expressed his concern regarding “a serious fault of senior management”. However a charge of manslaughter could not succeed because no individual could be prosecuted and found guilty of gross negligence manslaughter.
The HSE commented that death or personal injury resulting from major disasters was rarely due to the negligence of a single individual but was more likely to be the result of the failure of systems controlling the risk, with the carelessness of individuals being a contributing factor.
The Corporate Manslaughter and Corporate Homicide Act 2007
After much lobbying to address the shortcomings of prosecutions of corporate bodies under common law the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) was introduced.
Under CMCHA, corporate manslaughter:
- Can only be committed by organisations and not by individuals;
- Requires a breach of the duty of care under the law of negligence;
- Requires that the breach is a gross breach, i.e. where the conduct of the organisation falls far below what should reasonably be expected;
- Requires that a substantial element in the breach is the way in which the organisation’s activities are managed or organised by its senior management; and
- Is committed only where death is shown to have been caused by the gross breach of duty.
The sanctions available to the courts include unlimited fines, publicity orders and remedial orders.
The Sentencing Guidelines for Corporate manslaughter suggests that an appropriate level of fine will seldom be less than £500,000 and may be measured in millions of pounds.
Publicity Orders may require publication in a specified manner of:
(a) The fact of conviction;
(b) Specified particulars of the offence;
(c) The amount of any fine; and
(d) The terms of any remedial order.
Any specific failings involved in the offence ought to have been remedied by the time of sentencing and if not will deprive the defendant of significant mitigation.
If, the failings have not been addressed a remedial order may be used if it can be made sufficiently specific to be enforceable.
As the remedial order requires only what should already have been done the cost of compliance with the order should not be considered in setting the fine.
R v Cotswold Geotechnical (Holdings) Ltd. (2011)
Cotswold Geotechnical (Holdings) Ltd was found guilty at Winchester Crown Court of the corporate manslaughter charge relating to the death of Alexander Wright, and fined £385 000.
Mr Wright aged 27, was working alone in the 12.6ft (3.8m) deep unsupported trial pit when it caved in at a development site near Stroud, Gloucestershire, in September 2008.
The company director Peter Eaton was personal charged with common law gross negligence manslaughter and a breach of section 37 HASAWA. Mr Eaton was seriously ill with cancer and was unable to stand trial.
The judge said that Peter Eaton was in substance the company and his approach to trial pitting was “extremely irresponsible and dangerous”.
R v JMW Farms Ltd. (Northern Ireland) (2012)
Robert Wilson was washing the inside of a large metal bin which was positioned on the forks of a forklift truck. He jumped onto the side of the bin which then toppled. He fell to the ground with the bin falling on top of him resulting in his death. The forklift truck was a replacement for the normal truck which had gone for servicing a number of weeks earlier. The position of the forks on the replacement truck did not correspond with the position of the sleeves on the bin and therefore the bin was unstable.
The company was held to be aware of the danger as it had carried out a risk assessment which included instructions for anyone operating the forklift truck. However no assessment had been made of the position of the forks of the replacement truck and the sleeves on the bin.
The Recorder said that the appropriate fine would have been one of £250,000.00. He reduced that by 25% to reflect the plea of guilty. He thereby imposed a fine of £187,500.00. He allowed the company 6 months to pay the fine and the costs of the prosecution (which amounted to £13,000.00 plus 20% VAT).
R v Lion Steel Equipment Ltd. (2012)
Steven Berry died from his injuries after an accident on 28th May 2008 when he fell through a fragile fibreglass roof panel thirteen metres to the factory floor at the Lion Steel site in Hyde, Cheshire.
The company pleaded guilty to the offence on the basis that three directors were not prosecuted for common law manslaughter or section 37 offences.
Mr. Berry was expected to go up on the factory roof to make roof repairs, unsupervised, with no training and with no safety equipment such as crawl boards or a fall-arrest harness. The roof, which had been patched up at various times over the previous decades, had no warning notices about fragile sections — despite the firm being warned on this point by an HSE inspector in 2006.
In sentencing Judge Gilbart noted that though the company was in profit, it had substantial loans, the directors were not paying themselves extravagant salaries, and shareholders had not received a dividend for three years.
The fine was set at £480 000 but mindful of the jobs of Lion’s 140-strong workforce the judge specified that Lion Steel should be allowed to pay the penalty in four instalments over three years. The prosecution’s claimed costs of £140,000 were reduced to £84,000 and the company were given two years to pay.
R v Mobile Sweepers (Reading) Ltd. 2014
Malcolm Hinton suffered fatal crush injuries on 6 March 2012, while attempting to repair a hopper on a road sweeper operated by the defendant company Mobile Sweepers (Reading) Limited.
The sweeper was elevated from the ground by a hydraulic function but was not propped.
Mr Hinton accidently cut through a hydraulic hose while attempting the repair and the sudden loss of hydraulic pressure caused the half tonne hopper, to fall back on to the sweeper chassis and crush him.
Mobile Sweepers (Reading) Limited ceased trading soon after the fatality and a new company, Owens Sweepers Limited was set up by the company’s sole director, Mervyn Owens around six months later.
In response to the issue of businesses being put into administration and subsequently resurrected as new or ‘phoenix’ businesses Mobile Sweepers (Reading) Limited was fined a mere £8 000 whereas Mervyn Owens was fined £183 000 and disqualified under the Company Directors Disqualification Act for five years.
Owens was convicted of an offence under section 2 / section 37 of the Health and Safety at Work etc. Act 1974; and a charge of gross negligence manslaughter was left to lie on file.
The case is also significant due to the first imposition of a publicity order which was drafted by Judge Boney and published in the legal notices of the Basingstoke Gazette and Newbury Weekly News; on the10th April 2014.
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