Safety Management: Taking The Proactive Stance

Penalties for health and safety infringements have historically been lower in Northern Ireland than for the UK as a whole. But this is changing in recent times – and local organisations must be more conscious of safety management than ever before.

It is well known that employers are subject to stringent legislation to take all "reasonably practicable" steps to ensure the health and safety at work of employees and third parties that may be affected by the undertaking. Breach of the legislation is a criminal offence, attracting the potential for unlimited fines in the more serious of cases. There are also offences that can be committed by employees, managers and directors of companies that attract fines or, perhaps more importantly, prison sentences. Indeed an SHP article from earlier this year indicated that there has been a 400% increase in enforcement action taken against individuals in the last five years. Northern Ireland may be behind the curve but this national trend cannot be ignored.

Whilst there is no tariff for fines in health and safety cases, the general trend suggests that they are on the up following the introduction of the Health and Safety (Offences) Act 2008 and new legislation and associated sentencing guidance for corporate manslaughter. The recent JMW Farms Limited case is an example of this in Northern Ireland where a record fine of £187,500 plus £13,000 prosecution costs was imposed following the death of an employee from head injuries sustained when a metal bin fell from a forklift truck.

The sentencing guidelines, which were adopted in the JMW Farms case, state that the appropriate fine for corporate manslaughter cases will "seldom be less than £500,000 and may be measured in millions of pounds". They also state that: "the range of seriousness involved in health and safety offences is greater than for corporate manslaughter. However, where the offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more."

There would seem to be some evidence that fines in Northern Ireland are lower than our GB neighbours'. There have been only three cases under the new Corporate Manslaughter Act and the sentence delivered here has been the lowest of all. Further, HSENI's prosecution statistics for the last 5 years show no fines over £100k, despite the fact that numerous prosecutions for deaths have been brought. This is significantly lower than fines regularly imposed by Courts in England and Wales over a similar period.

Northern Ireland is, of course, a smaller jurisdiction with a large proportion of small-to-mediumsized enterprises and significantly fewer prosecutions, which could go some way to account for this trend. However, fines are not the only penalty that companies will suffer in the event of a successful prosecution. There are also legal costs, prosecution costs, personal injury claims as well as the management time involved in dealing with the investigation which could last for many months or years; not to mention the negative PR that would undoubtedly ensue, all combining to blight the company's good safety record and the work of many who devote their professional career to getting it right.

In many respects, Northern Ireland has been fortunate up to now. Companies should be re-doubling their efforts to ensure that they are not caught out by the tougher penalties available.

The importance of maintaining a positive safety culture is crucial to preventing an accident from happening but also in successfully seeing off an investigation in the unfortunate event that one does. However the absence of accidents in itself does not necessarily mean that the safety management system is functioning as it should. Safety needs to be driven from the top of the organisation in order for every employee to commit to the cause. For example if directors introduce cuts to safety budgets, ignore safety issues or even fail to follow the rules themselves it cannot be surprising if employees follow suit?

HSE Guidance suggests that companies should treat health and safety as they would any other core business activity. There are a number of practical steps that companies can take to test their safety management system and improve things for the better (See Table 1).

It is questionable whether legal compliance can be achieved 100% of the time – however, there can be no room for complacency in the current climate. Business leaders must challenge their safety systems and processes. There is always something that even the most rigorous organisations could be doing better.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.