Health And Safety Newsletter – Autumn 2007

This edition of the Health and Safety newsletter covers the following:

• The Corporate Manslaughter and Corporate Homicide Act 2007
• Metropolitan Police found guilty of Health and Safety breach
• Headteacher fined £20,000 following death of three-year old
• European Court of Justice Upholds UK’s Approach to Health & Safety Law
• REACH - The New Chemical regime
• Control of Major Accident Hazards Regulations 1999: Buncefield
• HMA -v- ICL Tech Limited and ICL Plastics Limited – Stockline
• HSE Falls from Vehicles Campaign
• New Health and Safety Guidelines for Directors
• New Smoking Laws
• Macrory Review of Regulatory Penalties
• Forthcoming Regulations 2007/8

To view the article in full, please see below:

Full Article

After almost ten years of consultation and debate, the Corporate Manslaughter and Corporate Homicide Act finally received Royal Assent on 26 July 2007 and will come into force on 6 April 2008.

The Act creates a new statutory offence of corporate manslaughter (to be known as corporate homicide in Scotland), where a fatality is caused by the ‘gross breach’ of a duty of care, and where the actions of the company’s senior management played a ‘substantial’ part in the breach. ‘Gross breach’ will occur where there has been a failure to comply with health and safety law and where an organisation’s conduct falls far below what can reasonably be expected. Although the Act creates a new offence, it does not impose any new obligations on employers. The principal duties of employers will remain as before under the Health and Safety at Work Act 1974.

The new offence is directed at the company itself as opposed to its individual managers or directors. Although a welcome relief to some, this will cause frustration to those who campaigned for individual liability. The Act is said by some to be "an unsatisfactory and uninspiring attempt to address the public outrage over apparent lack of accountability for workplace fatalities in a manner which will not be seen to stifle entrepreneurial activity or create a risk-averse culture".

The final version of the Act can be viewed at:
http://www.opsi.gov.uk/acts/acts2007/ukpga_20070019_en.pdf

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On 1 November 2007 the Metropolitan police force was found guilty of breaching health and safety laws in the anti-terror operation that resulted in the shooting of an innocent Brazilian man who had been mistaken for a fugitive suicide bomber.

The police force was fined £175,000 for placing lives at risk in the operation that led to the death of Jean Charles de Menezes on July 22, 2005. The police (an Employer within the meaning of the Health and Safety at Work Act 1974) were found to have failed to discharge their duties under section 3(1) of the Act, insofar as it failed to ensure that "persons not in its employment" (namely, members of the public, including Jean Charles de Menezes) were not exposed to risks to their health and safety.

The HSE had no responsibility for the prosecution in the De Menezes case. The Independent Police Complaints Commission investigated the circumstances of De Menezes’ death. Its evidence was passed to the Crown Prosecution Service ("CPS") who made the decision to take a prosecution under health and safety law.

On 27 September 2007, James Porter, the headmaster of a private school, was fined £12,500 after being found guilty of health and safety breaches in relation to the death of a three-year old boy in his care. Mr Porter was also ordered to pay £7,500 in legal costs. Kian Williams banged his head, causing bleeding to the brain. He slipped into a coma and died five weeks later, after contracting an antibiotic-resistant strain of MRSA-related pneumonia.

Kian sustained severe head injuries after jumping off steps whilst unsupervised. The steps, while out of bounds to preschool children, had no physical barrier in place. There was only one teacher on duty at the time, looking after 59 pupils in the playground. This level of supervision was found to be inadequate. The Health and Safety Executive (HSE) felt it was necessary to prosecute the school because of the "inadequate consideration for three-year-olds and potential dangers in their play area". The HSE argued that in this case there was an element of foreseeability: as headteacher, Mr Porter should have been aware that steps pose a risk to preschool children. The level of supervision should have reflected that.

The decision is expected to provoke further controversy over the "cotton wool culture" which teachers say is hindering their jobs. Teachers are under increasing pressure from health and safety legislation and the verdict and sentence may very well have serious consequences for the teaching profession as a whole.

Mr Porter was convicted under section 3(1) of the Health and Safety at Work Act 1974. He was prosecuted as the owner and proprietor of the school, rather than in his capacity as headteacher. Mr Porter is planning an appeal against his conviction.

On 14 June 2007, the European Court of Justice (ECJ) held in Commission v UK C-127/05 that the UK’s use of the expression "so far as is reasonably practicable", where it appears in UK Health and Safety law, was not inconsistent with the UK’s obligations under the Framework Directive 89/331.

The Commission argued that Article 5(1) of the Framework Directive 89/331 had been incorrectly transposed into UK law by use of the expression "so far as is reasonably practicable". It was argued that the Health and Safety at Work Act 1974, in particular section 2(1), limited the employer’s duty to its employees by including this expression in the wording of the provisions.

The UK in response maintained that the expression was narrowly defined and thereby only allowed employers to escape liability where they could prove they had done everything reasonably practicable to avoid risks to the health and safety of workers.

Given the potentially far-reaching consequences that a decision against the UK could have created, the outcome of the case has been eagerly awaited by employers and insurers alike, and will no doubt be received with welcome relief. Although favourable to the UK, the case brings into sharp focus the current use of the defence of ‘reasonable practicality’ in the UK Courts and the basis on which such a defence might continue to be justified.

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REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) is the new European regulation on chemicals and their safe use. REACH (Regulation 1907/2006) came into force on 1 June 2007 and replaces and consolidates over 40 different laws in a single, unified regulatory system.

The primary objective of the new legislation is to protect the environment, consumers and employees by the safe management and control of chemicals. It is anticipated that REACH will have a significant impact on workplace safety and reduce the number of accidents, illnesses and fatalities caused by exposure to dangerous chemicals.

Between 1 June and 30 November 2008, manufacturers of chemicals will have to register what is anticipated to be some 30,000 substances with the central European Chemicals Agency. The registration process will require manufacturers to produce a set of standard data when registering their product. Failing to register a substance may prevent a manufacturer from making and supplying the substance to customers. Substances manufactured in quantities below 1 tonne per year will not require registration.

In conjunction with registration of chemicals, the Industry will have to prepare risk assessments and control measures for people using and coming into contact with the substances. It is thought that a list of "Substances of High Concern" (e.g. cancer causing chemicals or chemicals which remain in the environment for a long period of time) will be developed under REACH. For chemicals categorised in this way, supply and manufacturer will only be possible where authorisation has been obtained from the European Chemicals Agency.

Although REACH provides long awaited clarity and consolidation of legal requirements relating to chemicals, trade unions have suggested that it could have gone further. The specific example given is that the industry is still able to use hazardous substances, even if a safer alternative exists.

It should also be noted that REACH does not replace Control of Substances Hazardous to Health (COSHH) or Chemicals (Hazard Information and Packaging for Supply) (CHIP) Regulations which will remain in full force and effect.

For more information go to: http://www.hse.gov.uk/reach/index.htm

For details of a REACH awareness event near you go to: http://www.hse.gov.uk/reach/diary.htm

On the 11 December 2005, a number of explosions occurred at the Hertfordshire Oil Storage Terminal, generally known as the Buncefield Oil Depot. The explosions were of massive proportions and fire engulfed a high proportion of the site. The fire burned for several days, destroying most of the site and emitting large clouds of black smoke into the atmosphere. Forty-three people were injured, but there were no fatalities. Significant damage occurred to both commercial and residential properties in the vicinity and a large area around the site was evacuated on emergency service advice.

A government inquiry held jointly by the HSE and the Environment Agency ("EA") is currently taking place. An initial progress report by the Major Incident Investigation Board (MIIB) on 13 July 2006 did not go into the causes of the explosion, but looked at the environmental impact. A statement from the Chairman of the Board, Lord Newton on 16 August 2007 makes it clear that there is still much research to be done, and that it is impossible to state clearly how much further research will be necessary to deliver sound guidance to the Industry.

Although the MIIB’s final report is not complete, the Buncefield Standards Task Group (BSTG) issued their final report into safety and environmental standards for fuel storage sites on 24 July 2007. Shortly after the incident, the BSTG was formed, consisting of representatives from the COMAH (Control of Major Accident Hazards) Competent Authority and from industry. The aim was to translate lessons from the Buncefield incident into effective and practical guidance for industry to implement as rapidly as possible. The purpose of the report is to specify the minimum expected standards of control which should be in place at all establishments storing large volumes of petroleum, and similar products capable of giving rise to a large flammable vapour cloud in the event of a loss of primary containment.

The report is available at http://www.hse.gov.uk/comah/buncefield/bstgfinalreport.pdf

On 28 August 2007 the owner and operator of the ‘Stockline’ factory in Glasgow (which exploded in May 2004, killing nine people and injuring thirty-three) were fined £400,000 after admitting breaches of health and safety legislation.

The explosion was caused by a build-up of liquid petroleum gas (LPG), which leaked out of pipework installed in 1969. This may have ignited when an employee switched on a light in the basement. The court was told there had been no risk assessment or system for inspecting that stretch of pipework, which was originally above ground but had been buried in 1974. After the explosion, it was estimated that the cost of replacing the pipework would have been £405.

Lord Brodie of Glasgow High Court imposed a fine of £200,000 on ICL Tech and a further £200,000 on ICL Plastics Limited after both companies pled guilty to charges under sections 2 and 4, and sections 2 and 3 (respectively) of the Health and Safety at Work Act 1974. Lord Brodie stressed that the fines could in no way compensate for the lives lost or injuries suffered in the explosion. He explained that he had to balance the fine against the companies’ intention to continue trading and to provide employment for the workforce.

A statement issued on behalf of the families affected by the blast branded the fine "inadequate" and concludes: " the current legal system is too restrictive…until company directors face personal prosecution for their negligence, families will never receive justice."

In early October, Lord Advocate Elish Angiolini announced that a full public inquiry is to be held over and above a Fatal Accident Inquiry (FAI). In terms of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, a fatality at work gives rise to a mandatory FAI. However, if there is a sufficient airing of the facts during the course of the public inquiry, the Procurator Fiscal may apply to the Lord Advocate for ‘special dispensation’ not to hold the FAI.

A public inquiry is an official review of events or actions ordered by a Government Minister. Health and Safety is a reserved matter under the Scotland Act 1998. However, given that the incident took place in Scotland, both Scottish and UK Ministers will be responsible for its investigation. The hearing will therefore be the first joint inquiry to be held under the Inquiries Act 2005.

A new campaign has been launched by the HSE to try to reduce injury and fatalities caused by workplace falls from vehicles. The campaign is set to run until December 2007. There will be a particular focus on the construction industry, which has been in the spotlight recently with the new Construction (Design and Management) Regulations 2007. In conjunction with the strict safety regime that has been set down in these Regulations, through focussed visits and spot checks on construction sites, it is hoped that falls from vehicles can be reduced and overall health and safety in the industry improved. The construction industry has received a lot of attention in recent years due to its high accident, injury and fatalities rates. Until the HSE are satisfied that these figures are being controlled by the industry, the industry is likely to remain a focus point for some time to come.

For further information regarding the HSE campaign go to: http://www.hse.gov.uk/fallsfromvehicles/index.htm

To view the Construction (Design and Management) Regulations 2007 go to: http://www.opsi.gov.uk/SI/si2007/20070320.htm

On 29 October, the Health and Safety Commission (HSC) and the Institute of Directors published new guidelines known as "Leading Health and Safety at Work".

The guidelines attempt to draw to the attention of directors the importance of good health and safety practices and procedures in the workplace – often dismissed as a hindrance to productivity. The guidance takes a common sense approach, offering straightforward practical advice relating to health and safety in the workplace. The short (eight-page) publication provides a summary of legal liabilities, a checklist of key questions for leaders and a list of resources and references for implementing the guidance in detail.

The guidelines are available in full at: http://www.hse.gov.uk/pubns/indg417.pdf

For further guidance please also go to http://www.iod.com/hsguide

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The smoking ban come into force in Scotland on 26 March 2006. With a smoking ban effective from 2 April 2007 in Wales, and 1 July 2007 in England, all public places and workplaces have now become ‘smoke-free’.

Although the HSE is not responsible for enforcing the legislation, it will "fully support Local Authority Officers, both in raising employers’ awareness of their responsibilities and in encouraging employers and employees to comply with the new legislation".

It is worth noting that a few exemptions to the law have been made, including smoking in offshore installations. Nothing in the new law, however, obliges an employer or manager of exempted premises to permit smoking or to provide a smoking area.

The Government has produced an official guide, explaining the new legislation and what must be done to comply with it. Additional guidance leaflets are also available for both businesses and individuals, along with supporting materials.

These can be downloaded from the Smoke-Free England Website: http://www.smokefreeengland.co.uk/resources/guidance-and-signage.html

Further information relating to the Scottish smoking ban can be found at http://www.clearingtheairscotland.com/

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The final report of the Macrory Review of Regulatory Penalties "Regulatory Justice – Making Sanctions Effective" was published in November 2006. The Government commissioned the review as part of its radical programme of regulatory reform. The review considered a broad spectrum of sanctions as well as the major motivations for non–compliance, including non-compliance with health and safety legislation. Rather than relying on criminal sanctions, Macrory recommended use of administrative and other non-criminal penalties.

The Government accepted the recommendations of the report in full, and intends to take forward four key recommendations by way of Part 2 of the draft Regulatory Enforcement and Sanctions Bill. This was published for consultation in May 2007. Part 2 of the Bill provides for Monetary Penalties (fixed and variable), Discretionary Requirements, Cessation Notices and Enforcement Undertakings to be made available as a "menu of sanctioning powers" to regulators who can show themselves to be compliant with the Macrory principles of regulatory enforcement.

The Government states that it will continue to look at how the other recommendations proposed in the Macrory Review can best be taken forward.

The report can be found in full if you click here

If you have any problems opening or printing the pdf file above, please click here for help

A summary of the recommendations can be found at:
Summary of recommendations

Part 2 of the Regulatory Enforcement and Sanctions Bill can be found at:
Regulatory Enforcement and Sanctions draft Bill – Government response

Following various consultations and pilot schemes, the decision was taken in 2005 by the HSE to implement changes in health and safety law on only two dates each year. This is extended to legislation arising from Europe.

The HSE will update their ‘statement of forthcoming regulations’ every six months, on 6 April and 1 October each year.

Changes commencing on 1 October 2007 can be found at: http://www.hse.gov.uk/legislation/sectiona.htm

The hope is that harmonisation of commencement dates will ensure that those affected by the changes are more aware of, and better able to plan for and implement the new measures.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 07/11/2007.