Elf n safety – a waste Elf n safety – a waste of time?of time?

Jim KingJim King

Principal InspectorPrincipal Inspector

HSENIHSENI

OverviewOverview

General areas of corporate risk General areas of corporate risk including work related fatalityincluding work related fatality

New risksNew risks

Impact for elected representatives and Impact for elected representatives and senior management – “Tone at the Top”senior management – “Tone at the Top”

Legal preventive stepsLegal preventive steps

Corporate Council Corporate Council RisksRisks FireFire Legionella outbreakLegionella outbreak Waste recyclingWaste recycling Waste collectionWaste collection Maintenance activityMaintenance activity Health issues including stressHealth issues including stress

Corporate Risk Following Corporate Risk Following Work Related Injury or Work Related Injury or FatalityFatality Criminal liabilityCriminal liability Civil liabilityCivil liability Gross negligence manslaughterGross negligence manslaughter Corporate manslaughterCorporate manslaughter Loss of reputationLoss of reputation Loss of rate payers fundsLoss of rate payers funds InsuranceInsurance

New risksNew risks

Health & Safety (Offences) Act 2008Health & Safety (Offences) Act 2008

Corporate Manslaughter and Corporate Manslaughter and Corporate Homicide Act 2007Corporate Homicide Act 2007

Sentencing guidelines for fatalitiesSentencing guidelines for fatalities

RecessionRecession

Corporate Manslaughter Corporate Manslaughter and Corporate Homicide and Corporate Homicide Act 2007Act 2007 Introduced new manslaughter offence for Introduced new manslaughter offence for

organisationsorganisations

No “directing mind” hurdleNo “directing mind” hurdle

No new offence for individualsNo new offence for individuals

Only if accident in the UKOnly if accident in the UK

Penalty – unlimited fine, remedial or publicity ordersPenalty – unlimited fine, remedial or publicity orders

In force since 6 April 2008In force since 6 April 2008

Factors to be taken Factors to be taken into account by a juryinto account by a juryMay consider:May consider:

the extent of any the extent of any attitudesattitudes, , policiespolicies, , systems systems or or accepted practices accepted practices likely to have encouraged such a likely to have encouraged such a failure or have produced tolerance of itfailure or have produced tolerance of it

any health & safety guidance relating any health & safety guidance relating to the alleged breach (Includes IOD to the alleged breach (Includes IOD Guidance for Directors, Trustees, Guidance for Directors, Trustees, Officers and equivalent)Officers and equivalent)

Sentencing Guidelines for Sentencing Guidelines for Fatalities (1)Fatalities (1)Sentencing Guidelines Council (Feb 2010)Sentencing Guidelines Council (Feb 2010)

““Fines must be punitive and sufficient to Fines must be punitive and sufficient to have an impact on the defendant”have an impact on the defendant”

Fines (HSW involving death)Fines (HSW involving death)

““The appropriate fine will seldom be The appropriate fine will seldom be less than £100,000 and may be less than £100,000 and may be measured in hundreds of thousands of measured in hundreds of thousands of pounds or more”pounds or more”

Sentencing GBSentencing GB

Fines (Corporate Manslaughter)Fines (Corporate Manslaughter)

““The appropriate fine will The appropriate fine will seldom be less than £500,000 seldom be less than £500,000 and may be measured in and may be measured in millions of pounds”millions of pounds”

““it is no longer the case that it is no longer the case that fines of £500,000 are reserved fines of £500,000 are reserved for major public disasters”for major public disasters”

SentencingSentencing

Factors affecting seriousness of Factors affecting seriousness of offence:offence:

““How far up the organisation does the How far up the organisation does the breach go?”breach go?”

““How common is this kind of breach in How common is this kind of breach in this organisation?”this organisation?”

New lines of New lines of investigation/questioninginvestigation/questioning

RecessionRecession

Pressure on finances – could that impact on Pressure on finances – could that impact on safety budget?safety budget?

Access to independent safety adviceAccess to independent safety advice

Staff cuts – impact on safety critical roles and Staff cuts – impact on safety critical roles and site managers’ responsibilities?site managers’ responsibilities?

Pressure on contractors/service providersPressure on contractors/service providers

Impact upon fine if “cost cutting at the Impact upon fine if “cost cutting at the expense of safety”expense of safety”

Impact for Senior Impact for Senior Management – Tone at the Management – Tone at the TopTopIndividual Criminal LiabilitiesIndividual Criminal Liabilities

Gross Negligence Manslaughter Gross Negligence Manslaughter (individuals)(individuals)– Breach of duty of care so grossly Breach of duty of care so grossly

negligent it deserves criminal sanctionsnegligent it deserves criminal sanctions

General Duties of employees (s8 HSWO)General Duties of employees (s8 HSWO)– Take reasonable care for H&S of Take reasonable care for H&S of

yourself and others affected by your yourself and others affected by your “acts or omissions at work”“acts or omissions at work”

A few key questionsA few key questions

AttitudeAttitude:: What do the staff think & what would they What do the staff think & what would they

say to an inspector?say to an inspector? Is H&S an active objective in the appraisal Is H&S an active objective in the appraisal

process through the entire management process through the entire management chain?chain?

Systems & Accepted Practices:Systems & Accepted Practices: Do systems reflect what happens on the Do systems reflect what happens on the

ground ground Do staff know who to contact and what Do staff know who to contact and what

procedure to follow after a safety incident?procedure to follow after a safety incident?

Key questions Key questions continuedcontinuedIs there evidence ofIs there evidence of::

• full compliance with health and safety law full compliance with health and safety law & guidance?& guidance?oror

• is there a culture of tolerating breaches?is there a culture of tolerating breaches?

Is there evidence that senior managementIs there evidence that senior management::• are familiar with Corporate Guidance?are familiar with Corporate Guidance?• know what they have to do?know what they have to do?• are actually managing and organising?are actually managing and organising?

Last questionLast question

How do you know????????How do you know????????