Health and safety performance in the construction industry
The Health and Safety Executive (HSE) has released its 2018 report concerning workplace fatal injuries. This report confirms a small rise in the number of workers killed in 2017/18 as compared with 2016/2017. Of the 144 fatal accidents at work, the highest proportion occurred in the construction sector with the biggest single cause of the deaths being falls from height, followed by workers being struck by moving vehicles.
Importantly, the HSE statistics also confirm that the UK has one of the lowest rates of fatal injury across Europe (only Finland had a lower rate). European surveys also suggest that UK businesses are more likely to have a formal health and safety policy and risk assessments as compared with their European counterparts.
Notwithstanding this, UK businesses continue to be subject to a high level of regulation on matters of health and safety and where prosecutions are brought by bodies such as the HSE they have a successful conviction rate of approximately 94%.
Impact of the Sentencing Guideline
One of the single biggest changes to impact upon the prosecution of safety offences in the UK was the introduction of the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline (Sentencing Guideline) in 2016. An overview of the Sentencing Guideline and the impact on sentencing in the health and safety arena can be accessed here.
The Sentencing Guideline led to a reported 80% increase in fines imposed on UK duty holders within the first year with fines reaching £69.9 million compared with £38.8 million for the previous year. Of these cases, 206 were in construction, where the penalties totalled £15.9 million in respect of the 206 convictions during that period.
When incidents arise in the context of construction, design and management (CDM) projects, the HSE will closely look at the role each party has played within the project and very often will prosecute a number of different companies in the contractual chain. A recent example of this involved a worker who fell through a fragile structure and sustained a fractured back. The principal contractor, main contractor and subcontractor were ordered to pay fines totalling £526,500. The main contractor, Wessex Building Services shouldered the largest fine of £425,000 for breaching the Work at Height Regulations 2005 but the prosecution costs were split equally between all three companies.
Another significant risk area within the construction industry remains traffic management and the segregation of vehicles and pedestrians. In the case of R v MV Kelly , MV Kelly, a civil engineering and construction company, was fined £500,000 when a worker sustained serious injuries, including the amputation of his right leg, when he was struck by a truck. The HSE prosecuted the company on the basis that the traffic management plan was out of date and the walkways were insufficiently protected contrary to the CDM Regulations 2015.
Another example of this was the prosecution in 2016 of a principal contractor, Crest Nicholson Operations, where a fine of £800,000 was imposed in similar circumstances.
A sizeable number of the prosecutions of construction companies involve companies which would be classified as ‘micro’ or ‘small’ under the Guideline. In such cases, the fines tend to be lower as the court will not usually seek to impose a fine which is so large that it will put a company out of business.
However, intentionally removing assets or utilising the insolvency system in order to evade the payment of health and safety fines is not taken lightly. The Insolvency Service disqualified Mr Allen, the director of Allen and Hunt Construction Engineers, from acting as a director for six years when he sought to avoid paying a fine imposed by deliberately winding down his business.
Custodial sentences for individuals
It is also worth noting the impact that the Guideline has had upon individuals who are prosecuted in their personal capacity by the HSE for falling foul of health and safety law. In the first 12 months of the Guideline, 4% of the individuals who were prosecuted for health and safety offences received an immediate custodial sentence of up to two years in prison. There has also been a marked increase in suspended custodial sentences with the Sentencing Council recently writing to all courts and judges in England and Wales to urge them to consider whether community orders may be a better option in some circumstances.
An example of one case where it was felt that an immediate custodial sentence was justified took place in 2017 involving the company director of Cherrywood Investments Limited and a site foreman. Both of whom were given immediate custodial sentences of nine months having been found guilty of manslaughter and health and safety offences which led to the death of a carpenter who fell through a gap in the first floor of a building. The HSE alleged that there had been a blatant disregard for the wellbeing of their workers and were critical of the failure to improve standards despite the warnings given by the HSE on a previous site visit.
The signs are that the enforcement regime in the UK is continuing with some momentum with the construction sector remaining a priority for the HSE. The HSE’s most recent Sector Plan for Construction suggests that the HSE will be making earlier strategic interventions within major projects and will also be focussing their attention on health risks, refurbishment activity and licensed asbestos removal.
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