As the Health and Safety Executive (HSE) publishes its interim statistics for fatal injuries arising from accidents at work1., alongside its annual enforcement statistics for 2018/192., we look at how the figures compare to previous years and what they can tell us about the regulator's approach to enforcement for businesses and individuals. With the impact of the current pandemic requiring a flexible approach to ongoing regulation, we also consider what effect this may have on future enforcement action.
What are the headlines?
Indisputably, the UK's record of controlling the risk of workplace injury and ill-health stands well in comparison with other EU member states. The UK consistently has one of the lowest standardised rates of fatal injury across the EU, lower than other large economies and the EU average. Indeed, the number of UK fatalities has remained broadly consistent in recent times.
Notwithstanding the above, we have recently seen a more complicated picture emerging. The headline statistics reveal:
- 1.4 million working people suffering from a work-related illness.
- 2,526 mesothelioma deaths due to past asbestos exposures (2017).
- 147 workers killed at work. This is an increase of six from the previous year's records.
- 581,000 working people sustaining an injury at work (according to the Labour Force Survey).
- 69,208 injuries to employees reported under RIDDOR.
- 28.2 million working days lost due to work-related illness and workplace injury.
- £15 billion estimated cost of injuries and ill health from current working conditions (2017/18).
Interestingly, and despite the strong figures above, there were only 394 cases prosecuted by the HSE and, in Scotland, the Crown and Procurator Fiscal Service. This equates to a 23% decrease in the number of cases prosecuted compared to the previous year (there were over 500 cases prosecuted in 2017/2018). Yet the conviction rate for health and safety offences remains high, with 364 of the 394 cases prosecuted resulting in a conviction.
In addition to the decrease in the number of cases coming before the Court, there was also a notable decrease in the number of enforcement notices issued by the HSE and Local Authorities, continuing a long term downward trend.
Total fine levels have also dropped (£54.5 million), with average fine levels appearing to stagnate, at least for the moment (£150,000). Whilst there does not appear to be one clear reason to explain the shift, it may be that fine levels are plateauing as health and safety practitioners and Judges become more familiar with the workings and nuances of the sentencing guidelines.
Whilst we may see fine levels increase at the point in time when repeat offenders come before the Court to be sentenced, under the guidelines, for their second or third workplace accident, this is likely to be some way off.
Fines are likely to increase for repeat offenders as generally speaking it is far more difficult to run successful arguments about low or medium culpability, where they have had similar workplace incidents and these defendants will not get the credit and associated reduction in the fine, for being of previous good character.
Whilst the number of prosecutions against individual directors is not included in the statistics released by the HSE, a Freedom of Information request made by Clyde & Co has revealed there were 29 prosecutions brought by the HSE against individual directors under section 37 of the Health and Safety at Work etc. Act 1974 in the period 2018/2019. Again, this highlights a marked reduction in the number of cases being commenced by the regulator (down from 51 the previous year).
The key figures show:
- 23 (out of 29) cases prosecuted resulted in a conviction.
- 2 of those cases resulted in an acquittal, with 4 cases being withdrawn.
- Of those convicted, 9 cases resulted in a prison sentence, down significantly from 23 the previous year.
A declining appetite in enforcement?
Consideration of the above statistics leads to the conclusion that whilst the amount of fatal and serious accidents are not significantly reducing, action by the regulator to prosecute is.
The HSE have been quick to stress the decrease in prosecutions is not as a result of any changes to enforcement policy, stating that it is working to better understand the factors in this decrease, including:
- The increased time being spent on dealing with challenges raised by defence solicitors regarding the sentencing guidelines;
- A greater number of Newton Hearings; and
- A larger than normal number of inspectors in training.
Whilst any explanation for the drop in individual prosecutions is unlikely to be clear-cut, it could be attributed to the fall in the number of cases prosecuted overall, possibly due to the regulator concentrating on the most serious breaches and also the amount of time now being spent by inspectors dealing with the Fee for Intervention regime.
What does the future hold?
The HSE has issued guidance on how it intends to approach the regulation of occupational health and safety during the coronavirus outbreak, which includes the suspension of targeted inspection activity of high risk industries, including construction and manufacturing3.. With the impact of the current pandemic requiring a flexible approach to ongoing regulation, it is unlikely that we will see the number of cases being brought before the Courts increasing in the next published statistics.
With the inevitable interruption to business activity and the closing of Courts, the current crisis is likely to exasperate the decline in enforcement activity to a new low come October 20204.. Regardless of the trends we are seeing year on year with the publishing of the HSE's annual statistics, a conviction for a health and safety offence still has huge ramifications for organisations and individuals. The fact the average fine for a health and safety offence remains constant shows us that the Courts are continuing to adopt an uncompromising approach to those who do have the misfortune to appear before it.
Author: Steven North, Senior Associate.
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