Direct to jail?

Summary
• Health and safety legislation has been beefed up.
• Serious injuries must be reported to the HSE.
• Machinery accidents involving young people will be highly scrutinised.
• There are around 240 fatalities in the workplace every year.

The Health and Safety (Offences) Act 2008 came into force in January 2009 and some of those with a vested interest in scaremongering have been touting the change as the potential opening of floodgates for managers and directors to be imprisoned and for companies to face closure as a result.

In reality, such individuals have for many years had the potential to be personally liable for health, safety and environmental management failures. However, the new regime increases the maximum penalties and broadens the range of offences for which an individual may be imprisoned.

Accidents in the workplace will always happen. Most of these are foreseeable and preventable if a bit of common sense is applied (officially known as risk assessment). If an employee is injured at work, there are various implications for the company and a more serious injury will need to be reported to the regulator, normally the Health & Safety Executive (HSE)

for the timber industry. This is a requirement under RIDDOR (Reporting of Injuries, Diseases and Dangerous occurrences Regulations 1995).

Many companies fear that if they report such incidents, it will lead to a barrage of HSE investigations and prosecutions. In reality, over 160,000 major injuries are reported each year and a few hundred HSE inspectors do not have the resources to do any more than, at most, a telephone-based follow-up.

Higher level of scrutiny

However, certain occurrences will typically generate a higher level of scrutiny – such as machinery accidents to young people. Where an investigation does result, prosecution is not the preferred option for the regulator, partly due to the resource implications. Use will more often be made of improvement notices which give a specified time period for certain improvements to be made, or prohibition notices, which prevent a certain process or piece of machinery being operated until specified improvements are made.

Prosecutions will normally only be used for more serious incidents and where repeated attempts to get voluntary improvements have failed. In these circumstances, the Magistrates’ Court will be used for less serious offences and smaller companies, whilst more serious offences will be heard in the Crown Court.

The HSE has strict guidelines which it must follow in its approach to the prosecution of health and safety offences. The HSE Enforcement Policy Statement makes it clear that prosecutions should be in the public interest and where one or more of a list of circumstances apply. These include:

• where death was a result of a breach of the legislation;
• where there has been reckless disregard of health and safety requirements;
• there have been repeated breaches which give rise to significant risk, or persistent and significant poor compliance;
• false information has been supplied wilfully, or there has been intent to deceive in relation to a matter which gives rise to significant risk;
• inspectors have been intentionally obstructed in the lawful course of their duties.

Historically, there was a limit of £5,000 or £20,000 in the Magistrates’ Court, depending on the offence, with unlimited fines in the Crown Court. Imprisonment was not available for most offences, but there was an option for up to six months in the Magistrates’ Court or two years in the Crown Court for a few offences, such as failing to comply with a prohibition notice.

From January 2009, the new regime increases the maximum fines in the Magistrates’ Court to £20,000 for nearly all offences. In addition, imprisonment is now available for nearly all offences – up to 12 months in Magistrates’ Courts and two years in the Crown Court.

Corporate manslaughter

Another regime related to health and safety punishments, which has received reasonable publicity in the past year, is that of corporate manslaughter. Companies may feel that it is far-fetched talking about fatalities in the workplace but, despite the presence of health and safety controls, every working day of the year one person goes to work and does not return home. In addition to the 240 or so annual fatalities in the workplace, there are three to four times this number of fatalities involving workers killed whilst driving in the course of their work.

In April 2008, new corporate manslaughter legislation came into force. Juries will be required to consider breaches of health and safety legislation in determining the liability of companies and other corporate bodies for corporate manslaughter. Juries may also consider whether a company or organisation has taken account of any appropriate health and safety guidance and the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such serious management failure or have produced tolerance of it.

Actual fines vary greatly, ranging from zero to over £1m. The HSE has a searchable online database of prosecutions and a wide range of timber-related prosecutions can quickly be found. Most relate to prosecutions undertaken after a preventable machinery accident, with underlying causes typically being a failure to guard woodworking machinery properly, compounded by a lack of appropriate training and/or a failure to update tooling, with fines ranging from £3,000 to £20,000. The biggest fine for any sector in recent years involved a fine and costs of £4m for Corus following the death of three people in a blast furnace explosion.

Compensation claims

In the event of an injury, it is worth remembering that as well as potential prosecution by the regulator (criminal law), the company will be vulnerable to a compensation claim by the injured employee (civil law).

The “no win no fee” industry is big business. Annual compensation claims for one employer (NHS) for one type of injury (back pain) total £400m per year. The total compensation bill for all employers for all causes of injury in the UK is estimated at over £10bn. Claims are often spurred by employee dissatisfaction – for example, shortly after being laid-off – so a bumper period of compensation claims might be expected in the next year or two.

Dr Alistair Bromhead is an independent health, safety and environmental consultant specialising in the furniture and timber industry; www.abromhead.co.uk.