Myth One - Health and Safety need not be a boardroom topic

WRONG. There is a strong belief by the Health and Safety Executive that many companies and organisations do not treat health and safety as a priority and is only dealt with much further down the corporate ladder than at Director level. Time and time again corporate defendants fail to appreciate the huge impact that a regulatory prosecution can have on their business. Reputation can often be irreparably damaged and causes more "pain" than a fine! Employees often suffer significant emotional upset and productivity can be adversely affected over a prolonged period. It is by no means merely a case of financial loss.

Myth Two - Health and Safety is only an issue for the Company

WRONG. This is totally incorrect. Under the Health and Safety at Work etc Act 1974, duties and responsibilities are imposed on directors, managers and employees as individuals. Not only does the employer owe a duty to its employees, the employees owe themselves and fellow employees a duty to take reasonable care for their health and safety. The days of only the Company being prosecuted are long gone - in the case of a fatality, the Police and the HSE will look at both Company and individual(s) in their investigations.

Myth Three - the Board of Directors are ultimately responsible for Health and Safety

WRONG. Though a perfectly correct philosophical statement, actually, unless the Directors collectively or individually get involved in day to day health and safety matters, the buck normally stops with the Manager who made the fateful decision. Interestingly, there have been an increasing number of prosecutions of managers and employees in recent years. Where employees are reckless, stupid or have a total disregard for health and safety, they face firstly being investigated, usually interviewed under caution and then prosecuted.

Myth Four - Even if we are prosecuted for health and safety breaches, unless there was a death or serious injury, we would only face a small fine

WRONG. Over recent years, following the high profile health of safety prosecutions of Transco for the Larkhall explosion and the joint prosecution of Balfour Beatty and Network Rail over the Hatfield disaster, fines for the most serious of cases have been in the millions. Fines imposed on smaller companies have also followed the upward trend and this is not limited to cases involving fatalities. What many companies fail to realise is that the Courts are now asking for the company's profit and loss account and basing the financial punishment on those figures.

Myth Five - I don't need a lawyer at an interview

WRONG. Interviews are a regular feature of health and safety investigations. There are three types of interview; voluntary, interviews under caution and Section 20 interviews. Only under a Section 20 interview can you be compelled to answer questions, you are under no obligation to attend a voluntary interview, and you would only have to attend an interview under caution if you were arrested but you can still choose to say nothing. The right to have a lawyer present applies to voluntary interviews, interviews under caution and Section 20 interviews. Investigating officers sometimes say that it is not their 'policy' to allow a lawyer to be present - do not confuse their internal policy with your legal right to have a lawyer present.

Myth Six - We have policies and procedures in place to protect us from any prosecution

You may have cabinets full of risk assessments, method statements and health and safety manuals, but when was the last time you reviewed them? Health and safety legislation imposes clear duties on you to put your systems in place, implement them and review them on a regular basis. The law requires you to do everything "reasonably practicable" to protect the health, safety and welfare of your employees and those who come into contact with your business. If your documents aren’t up to date and your policies and procedures aren't properly implemented and audited, you may have a real problem on your hands if something goes wrong.

Myth Seven - If I train my employees properly, I will be alright

For sure, by law, you must train your workers to an appropriate standard so that they can carry out their task safely and without harm to themselves or others.In the UK, however, and unlike other European countries, the HSE expect employers to take into account that their employees may not always follow their training! Adequate supervision and monitoring is therefore required to show that you have taken all reasonable practicable steps to prevent a workplace accident.

Myth Eight - Our Insurers will pick up the bill

If your insurers do offer cover for health and safety prosecutions it is unusual for them to extend this to any proceedings in the Crown Court. Bearing in mind that the maximum fine the Magistrates' Courts can impose is £20,000, most significant health and safety cases end up in the Crown Court. Even where you are insured, you may not be covered if your directors or managers are also prosecuted personally. Most companies want to assist their employees by paying their legal costs but this is often outside of the scope of the policy cover. Crucially, Insurers do not pay any fine that may be imposed and increasingly are very unlikely to cover the legal costs of the prosecution.

Myth Nine - All of our machinery is CE marked, that means it is safe

A CE marked machine is one which has been declared as compliant with the relevant legislation by the manufacturer - but it does not mean it is safe. In practice, it only means that there is a presumption that it is safe. With all machinery you should undertake risk assessments, obtain the appropriate warranties and ensure that the contractual maintenance is in place and that all employees are properly trained and assessed as competent before they use the machinery.

Myth Ten - It is easier to plead guilty

Don't get us wrong, we acknowledge that many decisions can and should be made on a commercial basis. Unfortunately, nowadays the consequences of accepting that you are guilty of a criminal offence are hugely significant. Firstly, you will have to deal with the financial penalties and possible imprisonment which may be handed out in sentencing. You must always bear in mind that whilst you may have pleaded guilty in the Magistrates' Court, your case may well be sent to the Crown Court for sentencing where the powers are unlimited.A guilty plea will result in the company getting a criminal conviction. This is recorded and can be referred to in future prosecutions, either in a trial to show that the defendant has committed this type of offence before, or in sentencing to show that the defendant has erred before. Increasingly, criminal convictions also have to be disclosed in commercial tender documents and as part of a due diligence exercise when a company is sold. It is inappropriate to decide to plead guilty without taking specialist legal advice first.

Myth Eleven - If something serious happens, the Company will sell me down the river!

Contractors are notorious for being a law unto themselves when it comes to health and safety! Unfortunately since the mid-1990s, the law places a large responsibility on the Client to ensure that what contractors do on your premises or on your behalf is done safely. How far your responsibility reaches is very dependent on the circumstances including, for instance, in-house expertise, though the larger the company, the greater the responsibility to check, supervise and monitor the contractor. What you cannot do is to ignore them!

Myth Twelve - If contractors breach health and safety, they only have themselves to blame!

Not necessarily true. They are also there to establish if there has been a breach of health and safety and, in the case of a fatality, to establish if there is evidence to support a manslaughter charge against the Company and an individual.

Myth Thirteen - The Police and the HSE are here to help us

You know your business better than any investigating officer will. Sure, they will have specialist officers to call on but so do you - your own Managers and employees! Unfortunately, often the client's technical team sits back whilst the investigating authorities do their stuff - don't do it, "kick start" your technical team from day one and get investigating as you will only be told what has happened many, many months from the date of the incident and as and when a decision has been taken by the authorities to prosecute you!

Myth Fourteen - All our investigation reports and internal statements are "confidential"

Stamping something "Confidential" quite frankly has no basis or meaning in law - it certainly does not protect the Client from the HSE using powers under Section 20 of the 1974 Act to compulsorily require documents to be produced including the Company's own internal report into the incident. The "warts 'n' all" internal report into the incident can be protected but only if it is primarily undertaken for a lawyer in order to advise the Company on its civil and/or criminal liabilities. Think long and hard before you allow your own Health and Safety Officer to put pen to paper following a serious incident and beware multiple recommendations at the end of the report which will come back to bite!

Paul Burnley and Stuart Ponting - Paul Burnley is Head of Corporate Defence at international law firm DLA Piper UK LLP and Stuart Ponting is a Corporate Defence lawyer at DLA Piper UK LLP, specialising in regulatory prosecutions.

Printer friendly version

Email this article to a friend