HSE round up – December 2018

We have taken a look at some of the HSE hot topics emerging over recent months and interesting recent developments. Here is a short summary of what we found:

No-deal Brexit

As outlined in our August 2018 HSE round up, the HSE continues to contribute to cross-government work which is being coordinated by the Department for Exiting the European Union.

In light of the current positon with Brexit and the numerous variables still in play, the government has published no-deal Brexit (no-deal) guidance across its policy areas. The HSE has had involvement with the plans which touch on safety and workplace issues.

The various guidance notes can be located on the gov.uk website and also on the HSE website, which include:

  • Workplace rights if there is no-deal
  • Regulating chemicals – registration, evaluation, authorisation and restriction of chemicals (REACH) if there is no-deal
  • Classifying, labelling and packaging chemicals if there is no-deal
  • Export and import of hazardous chemicals if there is no-deal.

The government guidance notes set out information to assist organisations to understand the steps and measures that they may need to take in the event that the UK leaves the EU without an agreement, so that they can make informed plans and preparations.

International organisations and those which rely on the use of imported or regulated chemicals will want to become familiar with the guidance so that contingency plans can be made in case of no-deal which is not yet off the cards.

Contacts: David Wright and Stephanie Power

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Work-related stress

The HSE has recently reported that, last year, 15.4 million days were lost in Britain as a result of work-related stress, which is the equivalent of 57% of all working days lost to ill health.

The HSE has launched a “talking toolkit” which it says can assist organisations to prevent work-related stress. The focus is on consultation and communication with employees, and the HSE has produced templates to assist managers to start conversations about stress and work demands, in particular where there is organisational or other change.

Mental health is at the forefront of many conversations and the HSE is keen to emphasise that the management of risk in organisations extends to the assessment of work-related stress, and that organisations are expected to conduct stress risk assessments which put control measures in place to control those risks.

In light of the figures published on lost work days in Britain due to work-related stress, there is obviously a significant benefit to businesses if they address work-related stress issues early, as effective measures are likely to reduce sickness absence and lift morale which may in turn increase productivity.

Contact: Stephanie Power

Related item: Healthcare Brief market insights – December 2018

Court of Appeal reduces sentence on appeal for ‘very large' organisation

In August 2018, the Court of Appeal heard the appeal of Electricity North West Ltd v R [23.8.2018] following a successful prosecution by the HSE.

At first instance, the Crown Court had imposed a fine of £900,000 following a conviction after a contested trial for a contravention of Regulation 4 of the Work at Height Regulations 2005. The jury acquitted the company of the two other charges it faced.

Electricity North West Ltd appealed against both its conviction and the sentence, which it said was “manifestly excessive” (the test for appeal of sentence). The appeal against conviction was not successful, but the appeal against sentence was. In very short summary, the Court of Appeal held that:

  • The trial judge was wrong to conclude that there was high culpability for a strict liability offence and where there were no high culpability factors clearly present. The Court of Appeal reduced the culpability level from “high” to one of between “medium” and “low” culpability.
  • The trial judge was wrong to make an upwards adjustment to the sentence to reflect that Electricity North West Ltd was a "very large" organisation under the Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences (the Guideline) (it having a turnover of upwards of £400 million) - on the basis that the facts of the case did not require any upwards adjustment.
  • The fine should be reduced from £900,000 to £135,000.

Comment

Whilst each case very much turns on its own facts, this judgment may serve as a reminder to the lower courts that the Court of Appeal is willing to significantly reduce fines on appeal where it considers that there has been a misapplication of the Guideline.

In particular, this judgment will be useful to organisations falling to be sentenced which may arguably sit within the very large size category of the Guideline but which wish to make arguments that the offence does not justify an upwards adjustment.

Following the ruling in Electricity North West Ltd, and building on previous Court of Appeal cases such as Whirlpool UK Appliances Ltd v R [20.12.2017], it appears that it is not simply enough for the court to find that an adjustment should be made because of the high turnover alone, but that there should also be another reason to justify an increase in starting point.

Contact: Stephanie Power

Related item: Application of the Sentencing Guideline for ‘very large organisations’

Read other items in Health, Safety and Environment Brief - December 2018