Enforcing health and safety legislation

Hillary Ross of Berwin Leighton Paisner examines the implications of the new enforcement policy statement issued by the Health & Safety Commission.

The problem

A nightclub owner employs an independent auditor to inspect the club's premises and is advised that the smoke machines should be replaced immediately, as they emit a small amount of gas. The operations director, however, argues that the machines should be replaced during the annual refurbishment in six months' time, and the owner agrees. Before the six months is up, a customer collapses on the dance floor as a result of an asthma attack, and dies.

The law

Under Section 3 of the Health and Safety at Work Act 1974, companies are required to do all that is reasonably practicable to ensure that their customers are not exposed to any risks to their health and safety. In addition, under the Control of Substances Hazardous to Health Regulations 1994, companies are also under a duty to prevent or control exposure to substances hazardous to health, and under the Workplace (Health, Safety & Welfare) Regulations 1992, systems must be maintained in an efficient state.

If convicted in a magistrates' court for offences under this legislation, a fine as high as £20,000 can be imposed under the act and/or £5,000 can be levied under the regulations. If convicted in the Crown Court, an unlimited fine may be imposed.

Expert advice

The new enforcement policy statement issued by the Health & Safety Commission makes it clear that enforcement officers should prosecute, or at least recommend that a prosecution takes place, when a death occurs as a result of a breach of legislation.

In the event of a work-related death, the police will also investigate the matter to establish if there is evidence to justify a charge of manslaughter. In this case, regardless of whether a manslaughter charge is brought, it is extremely likely that charges would be brought under the Health and Safety at Work Act against the company. Proceedings may also be brought against the operations director personally, as it was his instruction which resulted in the company's failure to replace the smoke machines.

If convicted, it is likely that a sizeable fine would be imposed on the company. In the case of Regina versus F Howe & Sons (Engineers) Ltd 1998, the Court of Appeal set down a series of sentencing guidelines that should be taken into account when sentencing a company for health and safety offences. In particular, the case identifies aggravating factors which should be taken into account.

Among other matters, the appeal court identified that, where an accident leads to death or serious injury, or if a breach occurred for economic reasons, then the penalty imposed should be substantially increased.

The court also held that any fine imposed should affect the shareholders as well as the management. In this case, therefore, the court would look at the club's most recent accounts and set the fine accordingly.

Check list

• Make sure that there is a system in place to ensure that points raised in audits or inspectors' reports are actioned.
• Ensure equipment is regularly checked and repairs are carried out as necessary. It is essential that these checks are documented.
• Never avoid health and safety duties because of financial considerations. There is always some way the risk can be eliminated or reduced. For example, in this case the smoke machines could have been decommissioned.

Contacts

Berwin Leighton Paisner
020 7760 1000
www.berwinleightonpaisner.com

Hillary Ross
020 7427 1170
hillary.ross@berwinleightonpaisner.com

Health & Safety Executive 08701 545500

Beware!

The new enforcement policy statement requests enforcement authorities to publish annually the names of persons convicted of health and safety offences, as well as information regarding the service of Improvement and Prohibition Notices.

In addition, enforcement officers are encouraged to draw the media's attention to cases involving breaches of health and safety legislation, and the policy recommends publicising any conviction. The adverse publicity generated could do untold damage to a brand's reputation.