IOSH LONDON METROPOLITAN BRANCH - PowerPoint Presentation

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IOSH LONDON METROPOLITAN BRANCHLEGAL Update - 2017

Kizzy Augustin, Senior Associate

Pinsent Masons LLP

Tuesday 9 May 2017

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Important changes in the last yearLooking ahead to

2018

Review of significant cases under the new Sentencing GuidelinesA look at the latest appeals against sentence

Topics

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Theresa May triggered Article 50 on 29 March 2017Businesses now on notice that within 2 years we will leave the EU

The

Great Repeal Bill- It will repeal the European Communities Act 1972

Will convert existing EU law into domestic law, wherever

practical,

to preserve existing laws that come from the EU so that there’s no great change on the day we leave. EU laws can be unpicked later on.

BREXIT

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Fees For Intervention (FFI)OCS Group UK Ltd- Judicial Review re dispute process- accepted by the HSE

Current process- suspended- lack of independence, very difficult to challenge

New process- In force from 1 September 2017- keep an eye out for it!HSE’s Annual Report and Accounts 2015/16 – income from FF1 £14.7m but cost of recovery £17.5m!

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Sentencing Reductions for Guilty PleaDefinitive Guideline on Reduction in Sentence for a Guilty Plea, applies from 1 June 2017

Normal Rule: maximum reduction available if guilty plea is at the ‘first opportunity’

Guideline formally introduces exceptions to the normal rule- includes following situation where:“there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made”.

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New PPE RegulationsNew EU Regulations apply to the manufacture, importation and distribution of PPE from

21 April

2016.

21 April 201

8

: New Regulations apply in full.21 April 2019: PPE certified under old directive can no longer be placed on the market.

21 April 2023

: all certificates under old directive expire.

The Personal Protective Equipment at Work Regulations 1992 still apply.

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HSE statistics 2015/2016

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HSE Stats – fatal / non fatal injuries (2015/16)Key figures for Great

Britain

1.3m working people suffering from work-related illness 2,515 mesothelioma deaths144 fatal injuries to workers

72,702 non fatal injuries reported to RIDDOR621,000 non fatal injuries to workers

30.4m working

days lost at an estimated cost of £14.1bnhttp://www.hse.gov.uk/statistics/

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Prosecutions – 2015/16Prosecutions696

cases

660 cases resulting in conviction for at least one offence95% conviction rate

£38,266,663 total fines (2015-2016)

£57,980

average fine per conviction

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Looking Ahead

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ISO 45001Aims to provide a framework to improve employee safety, reduce workplace risks and create better, safer working conditions all over the world.

Designed for use by any organisation (irrespective of size or industry) and to be integrated into existing H&S programmes.

Further draft circulated mid April 2017.Can feedback via IOSH to the consultation Committee responsible for drawing it up meeting again in September 2017 with a view to finalisation by end of the year.

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HSE Business Plan 2017-18Undertake targeted programme of 20,000 inspectionsInspection timescale targets

80% fatal incident investigations within 12 months of taking on investigation

90% non fatal within 12 months of incident.

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HSE Sector PlansThe HSE has published sector plans for 19 sectors- still in draft formShow top three priorities per sector for next 3-5 years

Available on the HSE website- worth a look for your sector

Each identifies the priorities of the HSE for that area

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Sentencing guidelinesCase update

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2016 H&S Sentencing GuidelinesApply to health and safety, corporate manslaughter and food safety and hygiene offences in England and Wales from 1 February 2016.

Nine step approach to calculate fines.

Fines now explicitly linked to company turnover to have ‘a real economic impact ’.Significant fines imposed solely based on the risk of injury.

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Impact of sentencing guidelinesHuge increase in fines seen in the last yearFines over £1m now the norm for large companies

Fines Total:

Feb 2015 - Feb 2016 = £30.3mFines total: Feb 2016 - Feb 2017 = £54m

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Increase by geographical area

Area

2015-16

2016-17

% change

West Midlands£76k

£832k

↑1094.7%

North East

£45k

£412k

↑915%

London

£47k

£198k

↑421%

Yorkshire

£116k

£57k

↓ 200%

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Fines post-1 Feb 2016Very largeTravis Perkins –

£2m

(May 16) – fatalTata Steel - £1.98m (July 16) – non fatalNetwork Rail - £4m

(Sept 16) – fatalTarmac Trading - £1.3m

(Oct 16)

– fatalLargeG4S Cash Solutions - £1.8m (Sept 16) – non injuryDecco -

£2.2m

(Sept 16) – fatal

Merlin Attractions -

£5m

(Sept 2016) – non fatal

Cristal Pigment UK

-

£3m

(Nov 2016) – fatal

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Wilko Retail Facts:20 year old employee seriously injured while manoeuvring an overloaded roll cage out of a lift.Roll cage toppled over due to overloading, uneven weight distribution and uneven ground.

Sustained a fractured spine, now paralysed below hips and only 1% chance of ever walking again.

Turnover: £1.5bn Profit before tax: £26m

Fine: £2.2m

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Wilko Retail Sentencing remarksHigh culpability, harm category 2.

Exposed

a number of employees to a risk of harm.“With a turnover in the region of over £1.4bn, it is very significantly higher than figures anticipated in the guideline – it is not even in the same unit of measurement”.CommentaryFor a large company facing the same charge, the starting point would be £1.1m with a range of £550k to £2.9m

Actual fine of £2.2m also takes into account credit for guilty plea and mitigation therefore judge moved outside of usual range when imposing the fine

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Whirlpool UK AppliancesFactsWhirlpool Factory, Bristol, tumble dryer manufactureSub contractor moving a heat detector, standing on elevated platform between two conveyors with baskets hanging down

Elsewhere in the factory maintenance of the conveyor was ongoing

Conveyor maintenance workers could not see injuredConveyor was started and a basket hit the platform toppling itFatal injuries

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Whirlpool UK Appliances BreachS3(1) HSWA 1974Inadequate risk assessment for maintenance and inadequate permit to work for heat detector

Sentencing remarks

Turnover: £16.25 billion (v large)Culpability: lowHarm: category 3Early guilty plea, good safety record, full co-operation with investigation

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Merlin AttractionsFactsIn June 2015, passenger train on Smiler rollercoaster collided with empty train

Operatives overrode system’s safety mechanisms to allow train to proceed

16 passengers suffered physical and psychological injuriesTurnover: £385m (2015)Fine

£5m

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Travis Perkins Trading Company Limited

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Facts

A customer was loading planks of wood onto the roof of his car when he fell backwards onto the yard

service

The customer

was run over by a company vehicle operating in the yard and died from crushing

injuries

Turnover:

£2.198bn

Profit before tax:

£125m

Fine

£2 million

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Tata Steel UK

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Facts

Two workers suffered injuries to their hands in two separate

incidents.

Firstly

, a

worker lost

two thirds of his left hand and his middle and ring fingers whilst trying to clear a blockage on a steel tube manufacturing line which had unsuitable

guarding

Secondly

and in a separate incident, a

worker

lost part of his little finger when his left hand was caught, again in an inadequately guarded

machine

Turnover: £

4.2bn / Loss

before tax: £306m

Fine: £1.98m

(£185,000 for the first offence and £1.8m for the second offence)

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Decco Chesham homeware firm prosecuted by LA (Chiltern District Council). Agency worker fell 8 ft onto concrete from platform while unloading delivery and died.

No working at height training

High culpabilityHarm Cat 1: starting point of £2.4m, max £6mInitial fine of £3.3m imposed reduced by one third to reflect early guilty pleaFine almost as much as pre-tax profit

Highlights the importance of identifying plea early as this can dramatically reduce the fine imposed.

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Appeals against sentence

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Appeals against sentence ConocoPhillips (UK) Ltd

November 2012: two

uncontrolled and one controlled but unexpected gas releasesThe lives of 66 workers were put in dangerFine: £3m (£1m for each offence) without reference to guideline

Sentencing hearing began on 22 January 2016 but the company was only sentenced on 8 February 2016 – does the guideline apply?

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Appeals against sentence ConocoPhillips (UK) Ltd - Appeal October 2016

Court of Appeal suggested the guideline should have been applied but would be unjust to do so now.

Level of fine manifestly excessive? No.Turnover £4.8bn (2014) = “very large organisation”;£5m fine would have been approx. 0.1% of turnover;Company lucky to have been given full credit.

For ‘very large organisations’, necessary to move well beyond range of fines to achieve proportionate sentence.

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Appeals against sentenceWatling Tyre Service Limited27 January 2006

– fatal

incident2006 to 2011 – the police investigate2011 to 2013 – Coroner's investigation and inquest2014 – papers released to the HSE

July 2015 – summonses issued29 January 2016 – company pleads guilty

1

June 2016 – fine of £1m imposed

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Appeals against sentenceWatling Tyre Service Limited – Appeal October 2016

Appealed on the

grounds that:the guideline should not be

applied;if the guideline was applied, the sentence should

be reduced;

full credit should be given for an early guilty plea.Court of Appeal disagreed on all points.

Delayed prosecution can be mitigation but

cannot

disapply the increase in fines under the Guideline.

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Appeals against sentenceKenneth Thelwall

Fatal accident 29 January 2014

KT (sole director) sentenced 26 August 2016Aggravating features – previous convictionSentenced to 12 month imprisonment (with one third credit for early guilty plea) suggesting harm category 1 and high or very high culpability.

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Appeals against sentenceKenneth Thelwall (October 2016)

Grounds of appeal:

Medium culpability – poor judgement only;Risk of harm assessed too highly;

Likelihood of harm assessed too highly

Too

much emphasis placed on previous conviction.Court of Appeal disagreed on all grounds and the sentence was upheld.

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So………Lots of changes planned for 2017 /18HSE focus on certain sectors – need to be proactiveSentencing Guidelines set to have greater impact, partcularly on cases commenced after Feb 2016.

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Questions?

Kizzy Augustin,

Senior Associate

Pinsent Masons LLP

E:

kizzy.augustin@pinsentmasons.com

T:

020 7418 9573

M:

07776 151786

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