I attach our most recent newsletter and hope that you find the articles of interest. This edition strikes me in particular as having a number of diverse issues which simply goes to show the challenges that face all practitioners in the area of health, safety and environment. 

---

 

Conciliating times?
New figures released recently by ACAS show that the number of businesses and employees trying to avoid employment tribunal claims continues to rise. The monthly number of calls to the ACAS helpline offering a pre-claim conciliation (PCC) service has almost doubled since September 2009.

ACAS expects the rise to continue. The PCC service was launched in April 2009 alongside the new ACAS Code of Practice on Disciplinary and Grievance Procedures. The service aims to settle workplace issues without a tribunal hearing. ACAS estimates that over 5,000 tribunal claims have been avoided already.

Corporate manslaughter trial
Cotswold Geotechnical Holdings is the first company to be prosecuted under the Corporate Manslaughter Act 2007 and is accused over the death of 27-year-old geologist Alex Wright. Director Peter Eaton, needed "urgent and intensive medical treatment" and the trial was adjourned after both sides agreed Mr. Eaton was not fit to participate.

Both Mr. Eaton and his company also face one charge each of failure to discharge a duty, under the Health and Safety at Work Act 1974. Mr. Eaton also faces a charge of gross negligence manslaughter. This was unlikely to be a case that assisted with the interpretation of some of the more complex issues such as "Senior Manager" nevertheless the outcome is awaited. If a conviction is secured then it may be prove to be informative in the application of the new sentencing guidelines.

More directors' liability?
Butchers Pet care was fined £100,000 plus costs after a machine crushed an employee to death. The Company's operations director (who assumed responsibility for health and safety) was also fined £10,000 plus costs for the offence of personally not preventing access to dangerous parts of machinery contrary to Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1998. The HSE said that the use of the regulation was appropriate but would not seek to employ it on a regular basis. The preferred approach is to utilise S37 or S7 of the HSAW 1974.

Directors Again
A director of a fuel tank manufacturing business has been banned from directing any company for five years after breaching a raft of health and safety regulations.

Brian Nixon of Evesham, Worcestershire, and managing director of Transtore (UK) Ltd was also fined £17,000.

Workers at Transtore (UK) Ltd in Stratford-upon-Avon were exposed to lead and other harmful chemicals while paint was sprayed at the plant without the correct safety measures in place. Workers were also put at risk of falls from height with no safety equipment provided.

HSE served four prohibition notices on the company during its investigation to immediately stop unsafe work. It also issued four improvement notices. Mr Nixon ignored the notice prohibiting work at height and continued to instruct his employees to work on top of the tanks.

Recent Fines
There is a sense that the fines are increasing at least that is apparent from HSE press releases in April. Rubb Buildings Ltd being fined £100,000 for a fatal airport hanger fall; Ashtead Plant Hire Company fined £200,000 following a fatality; Simms Group UK Ltd a fine of £200,000 after a lorry driver's death and Corus £240,000 after a lorry driver was crushed to death at its site in Staffordshire.

And finally
Not only do incidents lead to criminal investigation but also to civil claims.

In January of this year in the matter of Robert Lee Uren v MOD and Others the court found that organisers of a fun day had not been in breach of their common law duty when the Claimant suffered serious personal injury after diving head first into an inflatable pool as part of a relay game. This is a case to be welcomed particularly as organisations are looking at their summer events and various family and staff fun days. It follows that careful planning and appropriate risk assessments as well as a thoughtful selection of organisers remain important. These claims are frequently fact sensitive but should encourage those that plan and supervise their events rigorously to find if in the event that an incident occurs then they are defendable. This type of case should hopefully encourage less references to the Health and Safety Executive banning fun days but of course the media's attention is always drawn towards stories that help support the contention "health and safety gone mad". Little attention is given to cases such as this.

---

An environment of regulation and compliance?

Philip Hampton was commissioned in the 2004 budget to consider the scope for reducing administrative burdens on business by promoting more efficient approaches to regulatory inspection and enforcement, without compromising regulatory standards or outcomes.

The Hampton Review of Regulatory Inspection and Enforcement covered the inspection and enforcement work of 63 national regulators, as well as 203 trading standards offices and 408 environmental health offices in English, Scottish and Welsh local authorities.

The report was published in March 2005, and called for the burden of enforcement to fall most on highest-risk businesses and least on those with a good compliance record. It was deemed that penalties should, at the very least, reflect the economic advantage gained by not complying.

As a consequence, the Regulatory Enforcement and Sanctions Act 2008 was passed. This act has made provision for an increase in the options available to regulators which include fixed and variable monetary penalties and compliance notices. The aim was to give regulators greater flexibility to impose more appropriate sanctions on non-compliant businesses.

The Environment Agency and Natural England became the first regulators to be given the new civil powers. Whilst Natural England welcomed the announcement by DEFRA that they were to be given similar new powers to those accorded to the Environment Agency, they have yet to launch the consultation phase. Before the new sanctions can be used, Natural England will need to undertake a three-month consultation on policy and guidance. Details of the consultation will be announced in due course. We will update readers at the time.

The Environment Agency commenced the consultation phase on 15 February 2010 and will continue consulting to 7 May 2010 as to how the new powers will be implemented. They are seeking input on the following matters:

• the methodology for calculating variable monetary penalties; and
• the revised approach to enforcement and sanctioning; and
• proposals for the Environment Agency's governance structures and monitoring requirements for the use of civil sanctions.

The consultation can be accessed here: http://www.environment-agency.gov.uk/research/library/consultations/115595.aspx

Use of the Civil Sanctions should start in September 2020.

The new powers will give the Environment Agency the discretion to avoid having to take businesses to court, but will not replace existing informal methods such as advice and guidance. The powers will include: monetary penalties; the power to make business repair environmental damage (organisations will also be given a formal opportunity to restore voluntarily any damage they cause); and the power to stop businesses from continuing operations that are damaging the environment. The new powers are expected to be used sparingly, and the Environment Agency clearly state that they will still take criminal cases against business and individuals that cause deliberate, reckless and grave environmental damage.

In respect of the new powers, businesses and individuals will have access to an appeals process through an independent and impartial tribunal.

Notably, when considering whether they wished to be granted the new civil powers , the HSE determined that the health and safety regime was sufficiently mature with no significant gaps in effective enforcement. They also took the view that prosecution was an essential part of their armory. Therefore they had no need to avail themselves of these additional sanctions, but would continue to review their development.

Despite the appearance that the powers and sanctions are less formal and draconian, we would wish to reinforce to businesses that advice must be taken whenever action is threatened in environmental actions -- civil or criminal -- as the consequences for the business are inevitably serious.

A survey by NetRegs of 10,000 SMEs in 2009 found that only 19% were aware of the WEEE Regulations; highest awareness was for the Hazardous Waste Regulations at 41% and lowest at 10% for Reach.

---

Fit for purpose?

The Statement of Fitness for Work, or 'fit note', is a new Medical Statement that General Practitioners will issue from 6 April 2010. It replaces the old 'sick note' and aims to focus on what an employee may be able to do at work rather than what they cannot do.

Under the new medical statement, the doctor will be able to advise that: the employee is 'not fit for work'; or the employee ';may be fit for work', and give advice about support that could help the employee return to work.

The fit note will also include: space for the doctor to give general advice about the impact of the illness or injury; and tick boxes for the doctor to suggest, if necessary, common ways in which the employer could support return to work. The doctor will therefore be able to advise that the employee may be fit for work if they think that returning to work -- with support from the employer -- will help the employee.

A review of the new medical fit note will be carried out after it has been in place for 12 months, but there are some obvious wrinkles that will need to be ironed out in the early days:

• The British Medical Association supports the changes but is concerned that doctors might not be equipped with the right knowledge of a patient's workplace in order to make informed recommendations.
• There has also been some expressed concerns that employers may feel forced to accept an early return to work.
• Similarly there is the potential for disputes between employer and employee as to what is required.
• Finally, there has also been concern about the impact on differing size organisations -- large employers may have occupational health advisers, whereas small organisations may struggle.

A challenging time ahead for all employers, particularly small employers who do not have the resources or access to occupational health departments or specialists.

Government advice to employers can be accessed here:- http://www.dwp.gov.uk/docs/fitnote-employer-guide.pdf

---

Safety Culture -- does it link with safety performance

Safety culture is an incorporation of values within an organization that has a direct influence upon members of the organization's perception towards safety as a practicable and realizable concept within the workplace. A paragon safety culture would preclude accidents and injuries, whereas a weak safety culture may actually contribute to accidents and thus denigrate from expected health and safety standards.

Research commissioned by IOSH and carried out by Professor Andy Smith and Dr. Emma Wadsworth from Cardiff University attempts to highlight the potentiality for links between safety culture and safety performance. Twenty-eight organizations were involved in the research; these included both private and public sectors. The total number of business units involved amounted to thirty-three, based on several of the organizations' possession of multiple business units. The HSE's Health and Safety Performance Indicator was utilized as a means of charting organizational health and safety performance. Furthermore, the HSE's Climate Survey Tool helped elucidate examples of corporate safety culture.

The results of the research:

• The IOSH research summary states that "The business units had fairly high levels of corporate health and safety performance…[and] their benchmark overall hazard management and incident scores were also in the 'average' band."
• The more hazardous sectors (health and utilities, transport, construction, manufacturing) of employment allegedly had worse overall hazard management and incident scores.
• The less hazardous sectors achieved poorer benchmark scores.
• Organizations made up of more than 250 employees had generally higher benchmark performance scores.
• Organizations which were constituted of less than 250 employees had better overall hazard management scores, however, a lot of these organizations exist in less hazardous sectors.
• According to the IOSH research summary, around a third of the health and safety practitioners of these business units felt that improvements were required in the following: the involvement of the workforce in proposing improvements to health and safety (contributing to a strong safety culture); risk assessments; the health and safety committee; workforce involvement in identifying hazards; audits and inspections.
• There was a perceived trend that highly trained IOSH members and practitioners were careful to ensure that increased elements of the safety system were in place.
• Perhaps quite worryingly, only one third of those involved in the research felt that health and safety was considered of equal importance to alternative facets of the business.
• It was observed that health and well-being increased as a result of positive attitudes towards safety. A positive safety culture is seen as inextricably linked with augmented corporate safety performance.
• Several interesting links were discovered between practitioners' competence and experiences and corporate safety performance. Remarkably, "lower hazard management scores were linked with higher levels of training and education of advisers", declares IOSH. This could be as a result of the increasingly meticulous reporting of incidents.
• IOSH's research summary denotes that "Positive links between advice and both specific hazard management areas (repetitive movement, noise and vehicle handling) and benchmark hazard management scores suggest that more competent advice may also be linked to improved safety performance."

The results of this research indicate that a more efficacious safety culture is conjoined with a better safety performance. However, the relationship between advice and performance is more difficult to discern and there does not appear to be a strict pattern. It is perhaps too problematic to achieve research without any limitations present. Problems faced included vastly different amounts of business units for each sector, which does not provide an equal or accurate reflection of opinion or achievement. There is also a significant chance that only organizations with high levels of health and safety put themselves forward.

---

Rita Donaghy report Government response

Despite vastly improved standards and results that place the UK at the summit of the world of health and safety, "One death is too many" is the unanimous sentiment of those involved in the construction industry, a sector marred by a rate of fatalities four times more severe than that of any other. The Government commissioned Rita Donaghy, the former chair of the Advisory, Conciliation and Arbitration service, to carry out the inquiry. The resulting report contained 28 recommendations, many of which were rejected by the government . The report covered issues such as building regulations, legal aspects, public procurement, skills and training, worker participation, and the wider effects of injuries in construction (effects on the family of those involved in an accident etc.).

Points of interest:

• Recommendation 2 suggested that "the remit of the Gangmasters Licensing Regulations should be extended to include construction. Alternatively, a Regulation should be made which has the same effect". The application of this licensing regime to construction would ensure sufficient cooperation between the labour supplier and hirer to guarantee allocation of responsibility with regards to health and safety. However, it appears that sufficient legislation is already in place to assure this. In fact, it was the VWEF report (Vulnerable Worker Enforcement Forum) that was published in August 2008 that went further in attempting to protect the basic rights of all construction workers. Problems arise when we consider the diversity of the construction industry; it is clear that many firms only arrange and finalise labour after securing building contracts, not to mention the fact that there exists the problematic concept of false self-employment. The government has thus decided that it will continue to consider whether or not to implement a licensing regime; other obstacles including the extensive costs involved in licensing what would more than likely be over 200,000 different construction businesses.
• Donaghy suggested that the courts would benefit from guidance when debating over the appropriate sanctions to be implemented upon those responsible for health and safety incidents. As a result, the Government took into account Donaghy's contention when discussing new regulations concerning offences with the SGC (Sentencing Guidelines Council). Donaghy also underscored the inconvenience of lengthy trials, resulting in the Government's concurrence and indication that work is being carried out within the Crown Court to assess reasons for the augmenting workload faced by the Crown Court itself, along with any potential means for improving its efficiency.
• The Government rejected Donaghy's proposal for a Minister for Construction on the grounds that it had appointed Paul Morrell OBE as Chief Construction Adviser in November 2009, as a means of linking more efficiently both the Government and the construction industry.
• In relation to public procurement, Donaghy stated, " I recommend that Office of Government Commerce guidance and the mandatory Common Minimum Standards should be applied throughout publicly funded construction projects, including local authorities, and systems for accountability should be more effectively monitored and enforced with appropriate sanctions." This was accepted by the government, and it has been noted that the HSE is carrying out investigations into how increased comprehension regarding methods of procurement can be achieved whilst strictly adhering to the CDM Regulations.
• In its response the Government reaffirmed its appreciation for Construction Skills and the grant scheme that they provide for the construction industry.
• Donaghy recommended that the Construction Skills Certification Scheme Card and its system "should be further consolidated and renewed with a more strategic approach as to its future development". CSCS has agreed to this and is looking into a methodology that will ensure that trained and competent individuals are able to demonstrate their competence.
• The Government supports Donaghy's recommendation for increased worker participation in the health and safety sphere. As a result the HSE has organized a campaign to raise awareness, introduced basic training "for health and safety representatives in non-unionised workplaces in target sectors including construction", and also wishes to pilot "joint training for health and safety representatives and first line managers, to facilitate better joint decision making and co-operation." Combined with their recently launched "Do Your Bit" campaign, it would appear that the HSE wishes to encourage as much as possible the participation and involvement of workers in the health and safety sector. Interestingly, it has been remarked that one major contractor noted that 85% of their projects were injury and incident-free as a result of worker involvement and participation. Donaghy was also keen to emphasise the roles that trade unions can play in aiding better health and safety in the workplace.
• Donaghy was quick to note that the individual workers themselves have important roles to play in promoting and preserving health and safety, insofar as they should take responsibility for their own safety as far as possible. It was also noted that membership of a trade union can help the family of the injured construction worker in receiving support. Furthermore, if one is self-employed it was asserted that sufficient insurance is vital in guaranteeing that the family of the worker can obtain necessary legal advice.
• The response agrees with the 20th recommendation insofar that it has been seen as necessary by the Government that efforts must be made to tackle problems raised by Occupational Health. The HSE has taken steps to help protect the lives of the construction workers, including a study that wishes to see a change in behaviour in the workplace that would generate new attitudes towards both health and safety, seeing health and the way it can be affected in the workplace as equally important as merely being safe.
• Amongst other things, Donaghy argued that the reporting of accidents in the workplace should be taken with increasing seriousness. It was also felt that vulnerable workers should be given increased aid; for example, in September 2009 the HSE has launched an outreach project which taught various construction workers who spoke various different languages the basics of health and safety which they may otherwise have been unaware of.

It is thus clear that the Government see Donaghy's report as an extremely valuable piece of research and an asset to the future of improvement in the world of health and safety. The statistics of fatal injuries and accidents appears to be on the decline, and, whilst this is welcoming news, deaths and serious injuries are still occurring in construction sites across the UK. Hopefully this research has helped provide the Government with an insight into which avenues need exploring and improving.

---

Waste and the environment matters

William Reidy was sentenced to a 16 month prison sentence in March 2007 after Bradford Crown Court heard that his company, Space Making Development, was paid to take building waste away from companies across Yorkshire and then illegally dumped the waste. The Environment Agency investigated the case after they became aware of illegal tipping on council-owned land and put the site under surveillance. The investigating team then traced vehicles seen dumping the waste back. They estimated that, in total, around 200 lorry loads of demolition waste (including asbestos) had been dumped illegally while customers were given false documentation which stated inaccurately that their waste had been disposed of legitimately.

It is estimated that Reidy benefited from his crimes to the tune of some £1.7 million. In November 2009 a confiscation order was issued and he was ordered to sell land and properties to pay £176,519.10 to the Environment Agency under the Proceeds of Crime Act. He was given six months to pay the money. He will receive a further 27 month sentence if he fails to pay on time.

Confiscation orders made under this act can be used in any case where an offender has benefited financially from his criminality, and can include financial advantage gained over legitimate competitors, such as avoiding costs, fees and taxes.

This case was brought by the Serious Organised Crime Agency, after a referral from the Environment Agency. The Environment Agency has now appointed its own financial investigators (including forensic accountants) and carries out the majority of investigations itself. It is currently investigating cases worth up to £25 million in total.

It is also possible for the EA to obtain restraint orders whilst investigating potential offences. These restraint orders can seriously hamper the ability of an organisation and individuals to continue in business although that is not their aim. The purpose of the restraint orders being to minimise the risks of assets being dissipated during the investigation and subsequent prosecution

Could the use of the Proceeds of Crime legislation impact on other areas of potential illegality in a business? It is certainly conceivable. Imagine the impact if the voluntary agreement by members of the grocery retail sector to reduce carbon and the environmental impact within the Courtauld Commitment Phase 2 became mandatory. Given the environment agency now carries out its own investigations this is something that all businesses should have regard to in the future and take advice on. The complexity and enormity of the regulations relating to waste as well as the business opportunities that have grown around those regulations, mean that a thorough understanding of the Regulations is a prerequisite.

R v Thames Water Utilities Ltd 2010 EWCACrim202 is a case that is a "must read" for major water companies. It is the Court of Appeal's guidance on sentencing major water companies where breaches of environmental protection legislation has occurred. The judgment considers the issues of compensation, deterrents and punishment. It helpfully indicates that reference to other sentences in other cases should be with the benefit of some knowledge of the circumstances of the offence in those circumstances. The fine was substantially reduced on appeal, a pattern that is not replicated in health and safety offences on the whole.