Health & safety

The Health and Safety at Work etc Act 1974 (HSWA) is the principal framework legislation governing occupation health and safety in the UK. The laws exist to protect employers and employees and members from dangers arising from or otherwise associated with the workplace. It equally applies to protect any person who attends your premises. This includes temporary or casual works, the self-employed, clients and visitors. 

HSWA identifies the general duties, which apply to all sectors ranging from education, transport, retail and alike to name a few. The general duties apply irrespective of the type, scale and nature of the specific operation and its respective activities. The general duties are predominantly categorised into three areas:

1. Duties employers have towards employees and members of the public
2. Duties employees have to themselves and each other
3. Duties certain self-employed have towards themselves and others 

HSWA is also the framework that enables the government to implement regulations and associated guidance and Approved Codes of Practice (ACOP).

Regulations are all ‘substantive’ insofar as they create positive and detailed health and safety duties upon organisations, which are specific to workplace health and safety and/or connected with their processes, services and overall business undertaking. The laws in force through statute and Regulations are supported with guidance documentation and ACOPs. 

It is important to note that whilst ACOPs are not law in themselves they are afforded legal status. They provide practical guidance on how to achieve compliance. It is acknowledged in law that where persons are alleged of contravening health and safety legislation and in doing so have failed to conform with the provisions of a respective ACOP, a court can conclude they are at fault unless they can positively demonstrate compliance in another suitable way. 

An employer is duty-bound in law to provide you with a safe and healthy workplace. There are invariably different considerations for each organisation that are dependent upon the industry, nature of business operations and activities undertaken. However, generally, the duties will include:

• A safe system of work
• A safe place of work
• Safe equipment, plant and machinery
• Safe and competent persons working alongside others since employers are liable for the actions taken by their staff and managers
• Conduct risk assessments set out with prescribed and relevant Regulations, and take active steps to eliminate or control these risks
• Fully inform everyone concerned about all potential hazards associated with any work process, chemical substance, or activity, including the provision of instructions, training, supervision, and protection
• Appoint a ‘competent person’ responsible for health and safety. They are responsible for oversight of the day-to-day safety management, inspections, and implementation of safe systems of work
• Consulting with workplace safety representatives 
• Provide adequate facilities for staff welfare at work

The duties placed upon a party, as specified within the Act and relevant regulations, are frequently qualified with the terms ‘as far as reasonably practicable’ or ‘best practicable means’. Certainly, with regards to obligations specific to each of the duty holders, this is a narrower term than ‘physically possible’. 

In summary, the concept involves weighing the potential risk against the trouble, time and money needed to avert and/or control it. Thus, it requires a degree and exercise of judgement.

However, settled case law is established in respect of the principle, which prescribes that the decision is weighted in favour of health and safety because the presumption is that the duty-holder should implement the risk reduction measure – certainly where a risk is deemed significant. 

To avoid having to make this so-called sacrifice, the duty-holder must be able to show that it would be grossly disproportionate to the benefits of risk reduction that would be achieved. Thus, the process is not one of balancing the costs and benefits of measures but, rather, of adopting measures except where they are ruled out because they involve grossly disproportionate sacrifices.

From March 2015, the upper limit on fines for offences regarding a breach of health and safety law was removed. Accordingly, the level of fine that can be imposed was, and is, unlimited in sum. It is also worthy to note that individuals convicted for breaches (either directly or by virtue of their consent and connivance) can be sentenced to a term of imprisonment up to a period of two years. 

From 1 February 2016, new sentencing guidelines for health and safety offences came into force for organisations and individuals. They direct the courts to consider the sentencing of offending organisations by way of a step-by-step approach, primarily examining:

• Culpability
• The seriousness of harm risked and the likelihood of harm, which are divided into a number of different levels to reflect the scale within each category
• In light of a number of preceding Court of Appeal judgments expressing the same view, the guidelines then require an assessment of turnover 

These factors are collectively scaled to set a starting point for a fine that is intended “to bring the message home to the directors and shareholders of offending organisations”. 

Many of the other sentencing steps relate to the consideration of increasing or decreasing the level of fine according to a range of factors. There are similar guidelines for the sentencing of individuals for health and safety offences. Here, however, there is a stronger focus on the risk of a custodial sentence for those found guilty of serious breaches. Further factors in setting the appropriately determined level of fine include:

• Reduction for plea 
• Principle of totality 
• Profitability 
• Ability to make restitution to victims
• Impact on improving conditions, employment of staff, customers, and local economy
• Quantifiable economic benefit derived  
• Adjustment to achieve the principles of sentencing 
• Assistance to prosecution 

The court will also consider the imposition of ancillary orders and award of prosecution costs for successfully bringing the case.

It should be noted that the burden is placed upon the defendant in proceedings to suitably demonstrate their financial standing should they seek for proper weight to be attached to the grounds requesting a reduction based on the reality of their position. 

The extent of these seemingly hypothetical risks, any relevant mitigating features, will undoubtedly become a contested point at trial, likely to lead to prolonged sentencing hearings involving the introduction of expert evidence.

The introduction of new and very clear step-by-step Sentencing Guidelines for courts has increased the size of fines for health and safety breaches. They link them to the size of the company, sending a very clear signal to businesses and organisations that they must give the highest priority to protecting human lives, or face severe consequences for failing to do so.