Health and safety e-bulletin
17 February 2011
First conviction for corporate manslaughter
Cotswold Geotechnical Holdings is the first corporate entity to be convicted under the Corporate Manslaughter and Corporate Homicide Act 2007. As the corporate entity was a small one, the proceedings did not answer many of the questions concerning how the Act will be applied to large corporate entities. In particular, how, in practice, the court will approach the question of identifying who within a large organisation is to be identified as a "senior manager". This is central to the new offence as senior management failure must be a substantial element in the corporate entity's breach of its duty of care. Cotswold was described in court as being in a "parlous financial state" and therefore the fine of 385,000 indicates that very high fines will be imposed. Mr Justice Field in his sentencing remarks observed that a larger fine would cause the company to be liquidated and that people would lose their jobs. He added "It may well be that the fine in terms of its payment will put this company into liquidation. If that is the case it is unfortunate but unavoidable, but it is a consequence of the serious breach".
Duty to carry out a risk assessment cannot be delegated Under the Management of Health and Safety at Work Regulations 1999 the employer is required to make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they are at work, and the risks to the health and safety of individuals not in his employment arising out of, or in connection with, the conduct of the business. Questions can arise as to whether an employer is required to conduct a risk assessment and, if so, in what form, where the employee is under the supervision and control of another corporate entity, a scenario which commonly arises in different industries. Will it suffice that the controlling entity is the only one to carry out a risk assessment? In a recent Court of Appeal decision of Uren v Corporate Leisure (UK) Limited and MOD [2011] EWCA Civ 66, the court confirmed that the requirement on the employer to carry out a risk assessment could not be delegated to another. The case concerned a claim for damages arising from the serious injury which occurred to a serviceman during a "Health and fun day" at RAF High Wycombe. Corporate Leisure had supplied the equipment and individuals who oversaw the day and questions arose as to the respective responsibilities of Corporate Leisure and the MOD. The MOD accepted it had a duty to carry out a risk assessment and this was confirmed by Lady Justice Smith who said: "It seems to me that the duty to undertake a risk assessment is so closely related to the common law duties of the employer that it would be remarkable if the duty to undertake a risk assessment were delegableI do accept that what amounts to "a suitable and sufficient" risk assessment may well vary according to the circumstances. For example I can see that if an employer uses a contractor for some activity and satisfies himself that the contractor has carried out a thorough risk assessment in relation to that activity, that might well lead to the conclusion that the risk assessment carried out by the employer is suitable and sufficient, even though it is not as detailed as would be otherwise required. That would be a question of fact in each individual case and it is impossible to generalise as to the standard of risk assessment which will be required of an employer". In the context of a health and safety prosecution it is clear that the investigating authorities will require evidence that the employer has carried out a risk assessment. The decision, however, is to be welcomed because it emphasises that what is a suitable and sufficient risk assessment is a matter of degree, to be determined by what is appropriate having regard to all the relevant circumstances. Contacts
Howard Watson Partner +44 20 7466 2088
David Bennett Associate +44 20 7466 6435
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Environment Agency to get new enforcement powers From 4 January 2011, the Environment Agency ("EA") has begun to implement enforcement powers granted last year under the Environment Civil Sanctions (England) Order. These powers (or "civil sanctions") differ from the existing criminal sanctions available to the EA because they can be imposed directly by the EA without recourse to the courts. Click here to read the Order. The civil sanctions There are six civil sanctions available in relation to specified offences which are set out in Schedule 5 of the Order:
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Compliance Notice requiring actions to be taken to comply with the law or to return to a state of compliance. Restoration Notice requiring steps to be taken within a specific time scale to restore harm caused by non-compliance with rules. Fixed Monetary Penalty Enforcement Undertaking an offer form through which an entity that wants to repair any environmental damage may set out how it proposes to do so. If the proposal is accepted by the EA it becomes a legally binding agreement. Sample forms are available on the EA website. Variable Monetary Penalty Stop Notice requiring an entity to immediately stop an activity which is causing serious harm or represents a high risk of causing serious harm.
The civil sanctions are not available for all the activities that the EA regulates. It is expected that they will be used mainly in the hazardous waste, water resources and packaging waste sectors and they can be applied only to offences committed after 6 April 2010 in England and after 15 July 2010 in Wales. In order to ensure consistent application of the civil sanctions the EA proposes to introduce a national panel to supervise their use and to increase staff training. Follow this link for further guidance. Health and Safety Executive plans to charge for improvement notices The Chair of the Health and Safety Executive ("HSE"), Judith Hackitt, announced on 7 December 2010 that the HSE is considering charging those entities that create risks in the workplace. She described this as the "fee for fault" principle. This would mean that companies failing an inspection could be charged for the work the HSE undertakes following a notice to remedy the fault. This could raise concerns about the levels of fines which may be imposed by incentivised HSE inspectors. Ms. Hackitt also mentioned the possibility of raising the fees the HSE charges for consultancy services. Ms. Hackitt has said that the HSE recognise that safeguards would need to be implemented to ensure the system was transparent and open to scrutiny. To read Judith Hackitt's full speech click here. Health and Safety Executive consults on changes to RIDDOR A consultation paper on proposed changes to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 ("RIDDOR") commenced on 17 January 2011. The consultation paper comes in response to Lord Young's report in October 2010 on health and safety ('Common Sense, Common Safety', as discussed in a previous e-bulletin. In his report Lord Young suggested that the length of employee absence caused by an incident at work which triggers the requirement for the employer to report the incident should be increased. Currently Regulation 3 of RIDDOR requires an employer to report an incident that causes an employee to be absent from work for more than three days. The proposal would increase the relevant period to seven days, which would allow an employee to obtain a "fit note" from their GP and to have a medical assessment before a report needs to be made. The consultation will be open for three months and will close on 9 May 2011, after which HSE will consider the responses and submit recommendations to the Secretary of State for Work and Pensions. To view the consultation paper click here. To subscribe or unsubscribe To enquire about further publications, or to unsubscribe from this e-bulletin, please email, or visit the Herbert Smith website here. The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication. Herbert Smith LLP, Gleiss Lutz and Stibbe are three independent firms which
