Directors Warning

Under the Health & Safety Act 1974, if a health and safety offence is committed with the consent of or connivance of, or is attributable to any neglect on the part of a director (or manager, secretary etc) then that person as well as the organisation can be prosecuted under section 37 of the Act.

Recent case law has confirmed that directors cannot avoid a charge of neglect under section 37 by arranging their organisation so as to leave them ignorant of circumstances which would trigger their obligation to address health and safety breaches.  So saying “I didn’t know” is no defence.

If a director is found guilty, they will most likely be found liable for a fine and, in more serious cases, imprisonment.  They can also be disqualified under a separate legislation.  This will be a matter for the discretion of the Court.

The Corporate Manslaughter and Corporate Homicide Act 2007 is a much bigger discussion however from a legal point of view, this doesn’t impose any further duties or obligations on a director.  There are still the duties imposed under various work regulations and the 1974 Act however as long as Directors are complying with those they should not worry. 

In the recent case of Laxmi Developments Limited a construction company and its director were fined after carrying out unsafe demolition and construction work at a house in Surrey.  The HSE inspector attended a building site in June and served a Prohibition Notices (“PN”) and 3 Improvement Notices.  The PN was in respect of a failure to have edge protection to prevent falls when knocking down the house at first floor level.  The director instructed workers to go ahead with demolition without scaffolding and without edge protection.  The 3 Improvement Notices were to ensure sufficient demolition planning, improvement of welfare facilities and ensure the site supervisor was competent to carry out the works. 

In September the HSE received photos showing the PN being contravened and poor demolition practices continuing.  The HSE telephoned the director to remind him of the PN and the dangers of working at height.  In October, the HSE visited the site and the standards were again found to be very poor.  Two further PNs were issued.  The HSE became aware that workers were continuing to work at height with no protection.  What followed was a prosecution.  It has to be said that the HSE gave the company and the director every chance to remedy the issues first.

The company plead guilty to breaches of the Health and Safety Act:-

1. section 2(1) – which concerns ensuring the health, safety and welfare of all employees.  That was clearly contravened on a number of fronts.
2. section 33(1) - which makes it an offence to contravene any Notice,
3. There was also a breach of Regulation 5 of the Control of Asbestos Regulations 2006 (a company must do an assessment before carrying out any work likely to expose employees to asbestos).  They had not done any such assessment. 

The company was fined £15,000 and costs of almost £12,000

In terms of the director personally, he plead guilty to breaching section 33(1) of the same Act (by virtue of section 37(1) which makes any manager or other officer guilty if the offence of the company was committed with consent or connivance of).  He was fined £1,500 and disqualified from acting as a company director for 3 years.  The fine itself is fairly small but it is perhaps the latter of these which will harder hit a director and his company.  If you have a small company, reliant on one or two directors and one of them is disqualified, then that can be a major obstacle.

Asbestos Update - Control of Asbestos Regulations 2012

The Control of Asbestos Regulations 2012 came into force on 6 April 2012.  These came into play to comply with the European Commission’s line of thought that the UK had not fully implemented some parts of a previous Directive in the 2006 Regulations.

Employers carrying out some types of low risk short duration work will now require to comply with 3 requirements:-

• Notify the work to the relevant authority – this has to be done now.
• Carry out medical examinations – this has been given a 3 year period to take effect.  All workers doing notifiable non-licensed work have to be under health surveillance of a doctor by April 2015.
• Keep registers of work with asbestos – i.e., copy of the notification with a list of workers on the job, likely level of exposure.  It does not mean air monitoring for every job, just an estimate based on similar jobs or published guidance.

All other requirements remain unchanged – i.e. the 2006 Regulations.  The requirements which stay the same are:-

• Work with asbestos requires to be done by a licensed contractor in the majority of cases
• The control limits of 0.1 fibres per cubic centimetre of air
• Mandatory training for anyone liable to be exposed to fibres at work.

The outcome of the consultation process was that most in the industry who contributed to the consultation were in favour of the changes.  In effect the changes have led to the exemptions being narrowed.

These changes will mean that in the future, fewer types of lower risk work will be exempt from the 3 requirements.  This will involve increased costs for businesses and perhaps a smaller pool of work of people prepared to carry out this type of work.  One outcome perhaps is that some SMEs will regard the extra cost of compliance as not commercially viable. Another risk is that there may be a high degree of non-compliance.  This may come partly from confusion as to the new obligations – time will tell…

Riddor Update

On 6 April 2012 the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR’s Regulations) “over 3 day” reporting requirement changed.  The “trigger point” has increased from “over 3 days” to “over 7 days” incapacitation.  That doesn’t include the date the accident happened.  It also means 7 consecutive days.  Incapacitation means that the worker is absent or unable to do work that they would normally do.   Also, the deadline by which the “over 7 day” injury must be reported has increased to 15 days from the day of the accident.  Note that under EU law, all employers should still keep a record of all “over 3 day injuries”.  So an accident book entry will be enough.  The details which must be recorded are set out in Schedule 4 of the Regulations and includes information such as the date and time of the accident, the name, occupation and nature of injury of the injured worker and the location where the injury occurred.

Importance of Risk Assessments by Employers

In a recent Scottish case an engineering company was fined after the death of an employee in December 2008.  John Smith had been working on a piece of equipment at the company’s premises when he was struck by an unguarded piece of moving machinery.  Following an investigation by the Health and Safety Executive, the company was fined £133,000 at Glasgow Sheriff Court for a breach of section 2 of the Health and Safety at Work etc Act 1974.  This would have been £200,000 however the company pled guilty in the action.  It turned out that the equipment Mr Smith was using was around 25 years old and did not come with interlocking guarding.  Guarding had been made available by the company however Mr Smith had not used this in this case.  One of the main failings identified was the lack of sufficient risk assessment being carried out for the work that was being done.  Elaine Taylor, Head of the COPFS Health and Safety Division, said ‘This case yet again demonstrates the crucial importance of employers carrying out suitable and sufficient assessment of risks to their employees in the course of their daily work, taking the steps necessary to identify such risks, and thereafter ensuring that safe systems of work are in place and dangerous machinery parts are properly guarded.

Top 10 Worst Health and Safety Myths

It is not surprising that people say that Health & Safety has gone mad given the myths that exist.  To help challenge these myths the HSE has published a list of its top ten worst myths.  The top 10 are as follows:-

1. Children being banned from playing conkers unless they are wearing goggles
2. Office workers being banned from putting up Christmas decorations
3. Trapeze artists being ordered to wear hard hats
4. Pin the tail on the donkey games being deemed a health and safety risk
5. Candy floss on a stick being banned in case people trip and impale themselves
6. Hanging baskets being banned in case people bump their heads on them
7. Schoolchildren being ordered to wear clip on ties in case they are choked by traditional neckwear
8. Park benches must be replaced because they are three inches too low
9. Flip flops being banned from the workplace
10. Graduates ordered not to throw their mortar boards in the air

There is also now a Government department where you can report and challenge questionable decisions or reasons given on health and safety grounds – called myth busters. The contact URL is http://www.hse.gov.uk/contact/contact-myth-busting.htm. The one thing that these myths all have in common are that they are not required by Health & Safety Law!!!

Fairgrounds - The Crazy Frog

At this time of year fun parks and fair grounds are becoming ever more popular.  However they are not without their risks which one unlucky employee found out the hard way.  On 31 May 2010 Martin Brown was working for Elliot Crow, of ride owners Alan Crow Amusements, as a ride attendant on the Crazy Frog Ride.  Mr Brown occupied one of the cars in order to balance the ride. However, shortly after the ride started he was thrown from the ride and suffered serious injuries including a fractured skull, wrists, jaw and eye socket.  An investigation by the Health and Safety Executive (HSE) found Mr Crow failed to check Mr Brown was seated in the ride properly or was adequately restrained, leading to his colleague being thrown from the car once the ride had started.  Elliot Samuel Crow has been found guilty of breaching Section 7(a) of the Health and Safety at Work etc Act 1974 and was fined £520. He was also ordered to pay £500 costs and a £15 Victim Surcharge, the proceeds of which will be spent on services for victims and witnesses.