In this blog, we will explore the intricacies of complying with the UK’s health and safety law, which since the coming into force of the Health and Safety at Work, etc. Act 1974 (‘HSWA’) and the myriad of regulations made under the HSWA, has continued to grow and evolve.
The cost of health and safety compliance is often regarded as one of the biggest burdens on UK businesses, but as you may well have heard at one time or another, ‘if you think safety compliance is expensive, wait until you have an accident’, a phrase attributed to Haji-Ioannou, the Easyjet entrepreneur.
While this quote is often used in jest, it is nevertheless a fact that the cost of work-related accidents and ill-health can be extremely high, often resulting in a prosecution and/or a civil claim for damages. In many cases, such prosecutions and claims are impossible or extremely difficult (and very costly) to defend.
Sadly, it is only after a serious incident that businesses discover they have insufficient insurance cover, or that cover does not adequately protect their business.
Legal Framework
The UK’s health and safety legal framework is both robust and multifaceted. While the HSWA remains the cornerstone of the UK’s regulatory system, it is supported by a myriad of regulations, statutory and industry codes of practice (both HSE ‘approved’ and non-approved) and statutory guidance on regulatory compliance.
The HSWA places a general duty on employers to ensure, so far as reasonably practicable, the health, safety, and welfare of employees. HSWA also requires that they conduct their business in such a way as to ensure, so far as is reasonably practicable, that persons other than their employees are not exposed to risks to their health or safety by that business. A key issue for businesses is trying to determine after a fatality, serious injury or case of ill-health, the fact that they had done everything both reasonable and practicable to prevent the incident.
Regulations impose additional, more specific duties on businesses to control specific risks, including those to appoint competent health and safety practitioners, undertake risk assessments and develop and implement a health and safety management system, and ensure staff are adequately trained and provided with information.
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Legal Burden on Employers
Both UK statutory and common law provisions give employees and others who interact with your business the right to sue for compensation where personal injury (including to their mental health).
Trades union solicitors Thompson estimate that UK workplace accidents cost £5.6 billion and occupational ill-health in 2018/19 cost employers £16.2 billion.
Parallel criminal liability that can arise from an employer’s breach of its health and safety duties. Unlike civil claims, no actual harm is required for the HSE or local authority Environmental Health Department to prosecute breaches of health and safety law. All that is required is for a material risk of some harm, whether or not that harm actually manifests itself.
If convicted, the employer can expect a hefty fine, which will be based on its turnover, together with the HSE’s Fee for Intervention costs (i.e. the cost of its investigation), the prosecutions and the businesses own legal costs. Additionally, indirect costs, such as increased insurance premiums (or even refusal of cover), increased management and staff costs and loss of business must also be found.
While many of these costs may be covered by the business’ insurance, it is rare to for insurers to cover all of a business’s losses (particularly indirect costs) arising from a workplace incident and even less so where that incident involves a fatality.
Contrary to the general rule in criminal law that a ‘defendant is innocent until proved guilty’, the HSWA imposes on employers a ‘reverse burden of proof’.
This reverse burden requires only that in the event of a prosecution for a breach of health and safety legislation, the prosecution only has to set out the breach and the circumstances of that breach. The burden then moves to the defence to prove (on the balance of probabilities) that it complied with the relevant legislation and that it did not therefore, commit the breach. Following a workplace fatality or personal injury, or where there has been a serious incident that could have resulted in such, this is an extremely high burden for the defence to overcome.
Risk Assessment and Management
A cornerstone of occupational health and safety (and fire safety) and a legal requirement is the requirement for employers to conduct thorough risk assessments that comply with regulatory requirements and which lead to the implementation of appropriate control measures.
These risk assessments form part of a mandated health and safety management system, which for most employers must be documented and communicated to employees, contractors and others.
Incident Reporting and Investigation
In the unfortunate event of an incident, the timely reporting and thorough investigation of the incident, often under the protection of legal professional privilege, are essential to protect you, your business and your workforce. To obtain the highest level of protection for you and your business, it is essential that you take specialist legal advice as soon as possible following an incident resulting in (or likely to result in) a fatality or serious injury.
It has often been said, correctly in our view, that the enforcing authorities do not win health and safety convictions in court after months or years of investigation. Employers lose their case minutes and hours after the incident by failing to take appropriate actions.
At 360, we are able to offer specialist legal advice on dealing with the aftermath of the incident, and it is important that you seek such advice as quickly as possible. We can also liaise with your insurer, the enforcing authorities, brief staff and manage the media/press on your behalf.
Here to assist you and your business
At 360 Law Services we can provide competitively priced, specialist advice and assistance to enable you to navigate UK regulation and represent you in police and enforcement authority investigations, at inquests into work-related fatalities and in court, should that become necessary.
We can also help you to stay up-to-date with health and safety regulation, which is an ongoing process, working with you to develop and implement effective compliance strategies.
We can also keep you abreast of the latest trends and innovations in health and safety, from technology solutions to mental health awareness, to ensure that you remain abreast of and understand these developments and integrate them into your management systems.
360 can also advise and assist you in the development and maintenance of workplace health and safety policies and procedures, provide you with board and manager training and provide you with information to ensure you and your workforce is competent (i.e. they have the required health and safety training, experience, skills and knowledge to undertake their role), a requirement in both UK statutory and common law.
The occupational health and safety landscape continues to evolve, as do the health and safety issues you and your business needs to consider. At 360 we will help you to staying informed and able to proactively address the hazards and risks that threaten your business and navigate the intricacies of UK health and safety law, allowing your business to thrive and minimising the risk of an incident and subsequent enforcement action and/or claims for damages.
