Health and Safety Legal Update IOSH Chiltern Branch 16 November 2017

1. Health and Safety Legal UpdateIOSH Chiltern Branch16 November 2017 Alison Newstead Shook, Hardy & Bacon International LLP 19th Floor, Tower 42 25 Old Broad Street London EC2N 1HQ anewstead@shb.com

2. What has been happening? Incidents Government reviews Legislation HSE activity Campaigns Implementing Sentencing Guidelines Case law Consultations

3. Consultations

4. Gross Negligence Manslaughter • Control of Asbestos • Ionising radiation • Fee For Intervention

5. Consultation – Gross Negligence Manslaughter • Why is this important to you? • Sentences for individual gross negligence manslaughter set to increase substantially. • Offence: • Offender in breach of a duty of care towards the victim • Breach caused death of the victim • Offender’s conduct was so bad as to amount to a criminal act

6. The context • 9 work related gross negligence manslaughter convictions in last 16 months • All resulted in custodial sentences (4 suspended) • Longest term 7 years 6 months; shortest term 1 year suspended • Likelihood that these offences would resulted in longer sentences under the new proposals

7. The context (cont’d) • Sit up and take note now! • Retrospective – will apply to offences committed now but which do not come up for sentencing until December 2018

8. Need for Guidelines • No existing guidelines for manslaughter (except for provocation) • 4 draft guidelines • Unlawful act manslaughter. • Gross negligence manslaughter • Manslaughter by reason of loss of control • Manslaughter by reason of diminished responsibility

9. Guidelines - Structure • Set out in similar way to H&S sentencing guidelines • Focus on culpability and harm • Culpability: Very High, High, Medium, Low • Harm: For all cases - harm is of utmost seriousness • Courts will use a “starting point” and “category range” once category of culpability/harm determined

10. Guidelines - Aim • Starting points and ranges said to be “broadly based on current sentencing practices” • Need for consistency • Recognized that sentencing levels may increase • Majority of offences would fall into category “C” (starting point 4 years in custody)

11. Culpability Levels

12. Culpability (cont’d)

13. Sentence: Starting Point and Ranges - Medium - Low - Very High - High Source: https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter_consultation_paper_Final-Web.pdf

14. Apply Aggravating/mitigating factors • Make a reduction for any early guilty plea

15. Consultations - Asbestos

16. Consultations – Ionising Radiation

17. Consultations

18. R (OCS Group UK Limited) v. HSE Judicial review of FFI scheme • No independent and objective appeal process • Proceedings settled in February 2017 • HSE agreed to review the scheme/pay costs of OCS

19. Case Law

20. Case Law • Essar Oil UK Ltd – Risk of harm important • Fine 1.65m • Explosion at Ellesmere Port • No injuries – damage cost £20m

21. Case Law • DFS Trading Limited – Lower Courts imposing higher fines • Magistrates Court • Imposed £1m fine on retailer

22. Case Law (cont’d) • D Geddes (Contractors) Limited – Recovery of Criminal fine from H&S Consultant • Individual killed by tipper lorry at quarry • Bund (stop block) did not stop lorry reversing over edge • Fine of £200,000 • Action to recover fine against Johnston Health & Safety Services Ltd • Consultant carried out regular inspections and reported to Geddes • Geddes – Had they been advised they would have rectified • Johnson – Geddes negligent in sand build up • Person cannot profit from own illegal act

23. Case Law (cont’d) • Warburtons Ltd – Training of agency staff • Worker had arm trapped in conveyer belt • Highlights training of agency staff sometimes falls between the cracks

24. Case Law (cont’d) • Tata Steel – Successful challenge of fine of £1.8m • Challenging application of sentencing guidelines • Court re-examined application of guidelines • Incorrect characterisation of likelihood of harm • Judge entitled to take into account resources of parent company • Remember – fine can go up as well as down!

25. Case Law (cont’d) • Rv London Borough of Havering – Sentencing of Public Sector Organisations • How do sentencing guidelines apply to public sector organisations? • Fine linked to organisations revenue budget – therefore “large” organisations • Reduction if significant impact on services • Fined £500,000 (after ⅓ discount) • Argued discount for public sector bodies should be at least 50%: • No authority • Nothing in guidelines to support this contention

26. Case Law (cont’d) • South West Water – Using technology to ensure safety of lone workers • Drowning incident – lone worker • £1.8m fine • Effective Management of lone workers

27. Case Law (cont’d) • SR & JR Brown Limited – Courts considering responsibility in supply chain • 3 Gross negligence manslaughter convictions • 2 Directors of roofing business and Director of business that contracted work • Ensuring contractor competent and adequately resourced • Shocking behaviour by sub-contractor

28. Westgreen Construction Limited/IS Europe Limited – No-one acted on obvious risk • Woman crushed by falling windows • Windows unprotected and unrestrained • Clear and serious risk to death

29. Sentencing Early Guilty Pleas

30. Reduction in sentence for Early Guilty Plea “Indicated at first stage of proceedings” normally first hearing at which indication of plea is sought “First reasonable opportunity” may befirst time defendant appears before the Court After first stage of proceedings When trial date has been set (maximum) At “door of Court” or after trial has begun First day of trial Reduced to 0 during course of trial (maximum)

31. Forcing your hand at an early stage? • H&S sentencing guidelines and increased sentences = more likelihood of early guilty plea • Important exceptions: • Circumstances significantly affected Defendant’s ability to understand what was alleged or made it unreasonable to expect Defendant to enter a guilty plea sooner than was done • Defendant pleads guilty, but disputes facts of case (“Newton Hearings”)

32. Mental Health at Work

33. “many employers are already creating healthy, inclusive workplaces, but more needs to be done so that employers provide the support needed for employees with mental health conditions” Theresa May – January 2017

34. Independent review • Support to employees – to remain in and thrive through work • UK significant mental health challenge at work • Be more aware of own and others’ mental health • Employers can make greatest impact

35. The Figures • 300,000 people with long term mental health problems lose their jobs every year • 15% of people at work have symptoms of an existing mental health condition • Annual cost to employers - £33 billion to £42 billion • Annual cost to government - £24 billion - £27 billion • Annual cost to economy - £74 billion - £99 billion

36. Recommendations to Employers • Produce, implement and communicate a mental health at work plan • Develop mental health awarenessamong employees • Encourage open conversationsabout mental health and the support available when employees are struggling • Provide effective people management • Routinely monitor employee mental health and well being

37. LEGISLATION

38. General Data Protection Regulations (“GDPR”) • Foundations in 20 year old Data Protection Act • Compliance important – fines > £20m or 4% annual turnover (whichever higher) • Applicable from May 2018 • Raft of changes: • increase in territorial scope of EU data protection law • new and extended data subject rights • enhanced right to compensation • additional obligations/liabilities for data controllers/data processors • transformation of regulatory regime – extended powers and higher fines

39. Obligations of Businesses • Lawfulness of processing • Reliance of legitimate interests as legal basis for processing personal data – need to balance interests of consumer and data subject • New standard of consent “any freely given, specific; informed and unambiguous indication of the data subject’s wishes” • A Data Protection Officer must be appointed by a business which fall in certain categories e.g. public body, business whose core activity is data processing • Breach notification obligations • Duty to notify authority of “personal data breach without undue delay… “ where feasible not more than 72 hours after having become aware

40. Data protection impact assessments • Processing using new technology and likely to result in high risks to rights and freedom of data subjects will be subject to Data Protection Impact Assessment. • Accountability • Woven through GDPR • Number of references to “ensuring compliance” and “demonstrating compliance” • Data Protection by Design and by Default • Controller needs to consider “the state of the art, the cost of implementation and the nature, scope, context and purpose of processing, as well as the risks”

41. Data Transfers outside the EU • Data transfers to a “third country or an international group” may occur where: • Commission has provided an adequacy decision • Appropriate safeguards are in place • Certain derogations apply