On Tuesday 25 February 2014, Blake Lapthorn's commercial litigation team hosted an In-House Lawyer and Decision Maker's forum in Southampton. Our speakers, John Mitchell and Nicola Hutchins, discussed the changing landscape of Health & Safety law.

1. Blake Lapthorn’s in-house lawyer
and decision makers’ forum
Health and Safety :
the changing legal landscape
John Mitchell, Partner
john.mitchell@bllaw.co.uk
Nikki Hutchins
nicola.hutchins@bllaw.co.uk

2. The deregulation agenda
John Mitchell, Partner
john.mitchell@bllaw.co.uk

3. The background
October 2010 – Lord Young’s report “Common
Sense, Common Safety”
November 2011 – Professor Löfstedt’s report
“Reclaiming Health and Safety for All”
January 2012 – Prime Minister’s speech in
Maidenhead

4. New legislation
Defence costs
Fee for intervention
Abolition of strict liability in compensation cases
Injury reporting
Consolidation and repeal of various specialist
regulations

5. Approved Codes of Practice
ACoPs abolished
– L21 (replaced by re-written HSG65 on managing
health and safety)
– L81 on gas service pipes
– L116 on preventing accidents to children in agriculture
ACoPs radically amended:
–
–
–
–
–
L5 on COSHH
L8 on legionnaires’ disease
L28 on workplace health, safety and welfare
L56 on gas safety (consolidation of 2 ACoPs)
L138 on dangerous substances and explosive
atmospheres (consolidation of 5 ACoPs
– L143 on asbestos (consolidation of 2 ACoPs)

6. Other non-legislative action by HSE
Appeal panel
– http://www.hse.gov.uk/contact/challenge-panel.htm
Myth busters
– http://www.hse.gov.uk/Myth/myth-busting/index.htm

7. Action on local authorities
Primary authority
Inspection plans
Enforcement code
– http://www.hse.gov.uk/lau/national-la-code.pdf

8. In the pipeline
The Deregulation Bill
– The self employed “exemption”
– The “promotion of growth” duty
The Business Taskforce “Cut EU red tape”
– Abolish the requirement for small businesses to keep
written records of risk assessments
– Relax the requirements for the employment of young
people

9. Fallout
Comprehensive Spending review – cut HSE budget
by 2014/5 by 35%
– HSE is struggling to maintain frontline numbers
FFI:
– Won’t plug the gap
– Has demoralised swathes of experienced inspectors
who have left
Prosecutions
– Have remained constant over last 5 years

10. Corporate Manslaughter
Nikki Hutchins
nicola.hutchins@bllaw.co.uk

11. Corporate Manslaughter & Homicide Act 2007
An organisation is guilty of an offence … if the way
in which its activities are managed or organised:a)
b)
Causes a person’s death; and
Amounts to a gross breach of a relevant duty of care
owed by the organisation to the deceased”
An organisation is guilty only if the way in which its
activities are managed or organised by its senior
management is a substantial element in the breach

12. Senior Management
“The Persons who play significant roles in
i.
ii.
The making of decisions about how the whole or a
substantial part of the organisation’s activities are to
be managed or organised; or
The actual managing or organising of the whole or a
substantial part of the activities”

13. Relevant Duty Of Care
The relevant duty of care is one already owed under
the law of negligence
A question of law to be determined by the Judge,
making any findings of fact necessary to decide that
question
Employer and occupier duties

14. Gross Breach
The conduct alleged to amount to a breach of that
duty falls far below what can reasonably be
expected of that organisation in the circumstances
Falls to jury to decide if gross breach
The jury must consider whether the evidence shows
that the organisation failed to comply with any
Health & Safety legislation that relates to alleged
breach, and if so:
a. How serious that failure was
b. How much risk of death it posed

15. Jury Factors
The jury may also:
a. Consider the extent to which evidence shows there
were attitudes, policies, systems or accepted
practices within the organisation that were likely to
have encouraged any such failure,…. or to have
produced tolerance of it
b. Have regard to any Health & Safety guidance that
relates to the alleged breach

16. Sentencing Guidelines
Corporate Manslaughter and Health & Safety
offences causing death : In force 15 February 2010
Factors likely to affect seriousness
Factors to afford mitigation
A fixed correlation between the fine and either turn
over or profit is not appropriate
Corporate Manslaughter – seldom less than
£500,000 and may be measured in £1,000,000’s
Health & Safety offences causing death – seldom
less than £100,000

17. Investigations
Police have primacy : HSE or fire authority advice
Reference to the CPS Special Casework Unit
Very complex investigations
Pre April 2008 evidence
The story so far
5 cases already decided
Companies small and director owned and managed
Directors charged under Section 37
5 other cases where charges have been announced

18. Case Study

19. The Good News
The prospects of being subject to an investigation
can be much reduced by:
– Effective risk management for effective risk
assessment, mismanagement and risk review
systems
– Enforcement of systems
– Adopting best practice and guidance
HSG65 Plan-Do-Check-Act
IOD/HSE “Leading Health and Safety at Work”
– Acceptance of Health & Safety responsibilities at
all levels
– Leadership from the top
– Planning

20. Blake Lapthorn’s in-house lawyer
and decision makers’ forum
Health and Safety :
the changing legal landscape
John Mitchell, Partner
john.mitchell@bllaw.co.uk
Nikki Hutchins
nicola.hutchins@bllaw.co.uk