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IOSH London Metropolitan Branch Legal Update 2018

Stay up-to-date with the latest legal developments in health and safety at the IOSH London Metropolitan Branch Legal Update 2018. Learn about the 2016 Sentencing Guidelines, corporate manslaughter, ISO 45001, GDPR, and more!

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IOSH London Metropolitan Branch Legal Update 2018

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  1. IOSH London Metropolitan BranchLegal Update 2018 Kizzy Augustin, Russell Cooke LLP 8 May 2018

  2. Agenda • Where are we with the 2016 Sentencing Guidelines? • Cases of interest - big names, big fines…… • Update on Corporate Manslaughter • Changes in H&S for 2018? • Legal Privilege – why are we confused? • Understanding ISO 45001 • GDPR – all change from 25 May 2018! • Enforcement Notice appeals? • Consultation on Gross Negligence Manslaughter

  3. Where are we with the Sentencing Guidelines 2016? • Definitive guidelines implemented since 1 Feb 2016 – what have we seen in the last two years?

  4. Culpability • Level of culpability extremely important

  5. Categories of harm • Establish Harm category from Matrix

  6. Starting Point / Range of Fines Example - Large Organisations……

  7. Top 5 Fines – so far!!

  8. Merlin Attractions (Sept 2016) Facts • In June 2015, passenger train on Smiler rollercoaster collided with empty train • Operatives overrode system’s safety mechanisms to allow train to proceed • 16 passengers suffered physical and psychological injuries • Turnover: £385m (2015) Fine • £5m

  9. Network Rail (Sept 2016) Facts • Former film actress killed when hit by train on pedestrian crossing • Pedestrians had 5 seconds of visibility of oncoming train but could take twice that time to cross • Suggestion to impose speed restriction not implemented as manager wanted time to consider it • Warning sirens recommended but also not implemented Fine • £4m

  10. Tesco Stores Limited (June 2017) • 2016 – workman fell 30 ft through skylight (no RAMS) • G plea - £500k fine (HSWA offence) • 2017 - joint prosecution (EA, Lancashire CC, United Utilities, Lancashire Fire and Rescue, Police) • Issue – Tesco’s failure to address fuel delivery system problem, inadequate alarm system, poor emergency procedures • Between 2 & 3 July 2014, approx. 23,000 litres of petrol escaped from tank at petrol station operated by Tesco: • Odours affected local residents health • Petrol entered local brook and river – killed fish/aquatic life over 6 miles downstream • G plea - £5million for HSWA offence, £3million for environmental

  11. KFC (January 2017) • 16 year old employee scalded across his arms after spilling boiling gravy out of microwave oven at Stockton branch in July 2014 • Put paper towels over arms and was sent to hospital alone • Similar incident in December 2015 at another Stockton branch – more experienced employee scalded by hot gravy (third degree burns) • Neither employee used gauntlets / gloves to protect from injury • G plea x 2 (s. 2 HSWA) - £800k & £150k respectively, £18.5k prosecution costs

  12. Southern Health NHS Foundation Trust (Oct 2017) • CQC prosecution – trust admitted it failed to provide safe care and treatments to its service users / patients and putting people at risk of avoidable harm • Incident – psychiatric ward in Winchester for mental health patients. • Many had climbed onto the roof to escape – in Dec 2015, one fell to the ground and sustained serious neck injuries (after previous absconding attempts) • Trust had been told to increase safety measures (e.g. block gaps in fencing, fitting anti climb guttering) but this had not been done. Lack of finances? • Further falls after this incident • G plea - £125k fine plus £36k prosecution costs

  13. Shrewsbury & Telford NHS Trust (Nov 2017) • HSE prosecution • Breach of health and safety duty towards 5 patients who suffered fatal injuries following falls between June 2011 and November 2012 • Judge’s comments: • “All organisations, public or private, are accountable under the criminal law…. public bodies are to be held equally accountable under the criminal law for acts and omissions in breach of Health and Safety legislation and punished accordingly” • they been a private company the fine would have been at least £1 million • reduced the fine by 50% (for being a public body and its financial circumstances) • G plea - £333,333 fine plus prosecution costs of £130k

  14. JD Sports Limited (October 2017) • Company faced 6 offences following RRO investigation at Dudley branch by West Midlands Fire & Rescue Service: • Escape routes blocked by crates and stock • Preceded by pre-Christmas fire safety checks carried out by the Fire Service • JD Sports ignored advice • G plea - £60k plus approx. £7,500 costs

  15. Terrance Murray (Feb 2018) • Manchester scaffolder photographed by a member of the public • Working on top of a scaffold at a height of 13 - 18 metres without edge protection or a harness connected to the scaffold or building • HSE: employers had taken reasonable steps to avoid working unsafely at height….’frolic of his own’ • Gplea– 26 weeks' imprisonment, suspended for one year, and 100 hours of community service; plus costs of £500 and a victim surcharge of £115(section 7 HSWA)

  16. What does it all mean? • Significant increase in fines / Very large companies fall outside the ranges in the Guidelines and “all bets are off” / ‘focus on ‘sector’ or ‘industry’ • More individuals are likely to receive custodial sentences • Look at sentencing trends for each industry • What’s important? • Culture, Leadership from the top - Board level briefings & training • Incident Response Protocol – RIDDOR, Internal Investigation, response to FFI, response to section 20 interviews, interviews under caution, Enforcement Notices – post incident “legal” protective measures • The extent to which failures were systemic v. isolated • Safety management systems inplace, robust and properly invested in • Role played by senior management and directors (pre and post-incident)

  17. Corporate Manslaughter and Corporate Homicide Act 2007 Prosecution must prove the way in which activities were managed or organised: • Caused a person’s death; • Amounts to a gross breach of a relevant duty of care owed to the deceased; and • Senior management’s role in the breach was a substantial element in the breach • The jury may also • consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure ... or to have produced tolerance of it.

  18. Corporate Manslaughter

  19. Martinisation (London) Limited (July 2017) • Both company and MD denied corporate manslaughter and H&S charges respectively in relation to the deaths of two employees: • Workmen moving heavy sofa onto balcony using ropes with Victorian railings for safety • Sofa fell after railings on the balcony gave way – employees fell to their deaths • Company - guilty of Corporate Manslaughter - £2.4m fine for both deaths and £650k for H&S breach • Martin Gutaj– guilty of health and safety breach - 14 month imprisonment for each death(concurrently) - and barred from being a company director for 4years.

  20. Changes in H&S for 2018?

  21. Changes in H&S for 2018 • Legal Privilege – why are we confused? • Understanding ISO 45001 • GDPR – all change from 25 May 2018! • Consultation on Gross Negligence Manslaughter • Enforcement Notice appeals?

  22. Legal Privilege • Litigation privilege: protects communications between clients and lawyers / third parties for the purpose of obtaining advice in connection with existing or contemplated litigation, when (at the time of the communication): • Litigation is in progress or in contemplation • The communications are made for the sole or dominant purpose of conducting that litigation, and • Litigation is adversarial, not investigative or inquisitorial (‘Three Rivers’ test)

  23. SFO v Eurasian Natural Resources Corporation (ENRC) (2017) • Internal investigation into allegations of bribery and corruption • Judge denied claim for litigation privilege for documents produced by lawyers and forensic accountants: • Discussions between employees and company lawyers not covered by privilege • Documents generated when there was no more than a general apprehension of future litigation not covered • Documents created specifically to show to a potential adversary in litigation not protected by privilege • Criminal proceedings should not start until “decision to prosecute test’ has been met, therefore prosecution is only a real prospect if there is some ‘evidence’

  24. Bilta (UK) Ltd v Royal Bank Of Scotland Plc (2017) • Following HMRC threat of adverse tax assessment, Bilta: • Sought internal investigation documents generated by RBS (who were going through their own assessment), including transcripts of i/v • Suggested the documents were not generated with litigation as sole / dominant purpose – no legal privilege (just prep for the assessment report) • Accepted that adversarial litigation against HMRC was in RBS’s contemplation. • But what was the dominant purpose for the creation of the documents? • Chancellor for the High Court ruled: • “this is a question of fact in each case and that, although both SFO v ENRC and this case involved internal investigations by corporates in the face of scrutiny by government authorities, the communication from HMRC in this case put the investigation on a different footing: it was a ‘watershed moment’.”

  25. R (for and on behalf of the HSE) v Jukes (2018) • Follows the ENRC decision • Transport manager (Mr Jukes) convicted of section 2 HSWA after employee sustained fatal injuries - 9 mths imprisonment • Witness statement made by Jukes to company’s solicitors during internal investigation – admitted he is responsible for H&S, but denied responsibility during HSE i/v 16 mths later • On appeal, the court considered the admissibility of Jukes’ statement, which Jukes asserted was protected by litigation privilege. • Appeal Court agreed with trial judge – no privilege, purely investigatory stage Will ENRC’s July 2018 appeal resolve matters?

  26. Understanding ISO 45001 (2018) • Seeks to bring Health and Safety in line with its Environmental and Quality Management counterparts - harmonise standards on a global basis • Builds on framework of OHSAS 18001 • Audit and exploration of organisation’s ‘responsible’ procurement sources for products and services • 3 year transition window

  27. Why have ISO 45001? • Moral reasons: • Reduce the amount of work related injuries, occupational illness and fatalities • Business reasons: • Increase productivity / profitability • Retention of workforce / increase morale • Maintain reputation of the organisation • Legal reasons: • Avoid claims / prosecutions • Need for international / aligned management system standards

  28. ISO45001 • PLAN – DO – CHECK – ACT approach • Main changes: • Context of the organisation – wider issues • Worker involvement? • Procedures and Records – more about process, documented info • Leadership and Commitment • Different to OHSAS 18001?

  29. GDPR - all change? • 25 May 2018: GDPR applies…..severe financial sanctions for non-compliance • Occupational Health teams – legal constraints on handling personal data: • Training records, details of employees’ health issues, accident reports, interview transcripts • Must be processed lawfully, fairly and in a transparent manner • ‘lawful’: with or without consent, employee/employer relationship, legitimate interest • Should not process sensitive personal data • Fines?? Up to 4% of company’s annual globalturnover or €20 million

  30. Consultation on Gross Negligence Manslaughter • 4 July 2017 – Sentencing Council announced consultation for guidelines on manslaughter convictions • E.g. Gross negligence manslaughter - carers who fail to protect victim from falls / employer who disregards safety of employees / medical practitioner falls below appropriate standard in treatment of patient • Average sentence for Gross negligence manslaughter is currently 5 years • Sentences likely to increase for gross negligence manslaughter offences – particularly if employer has had a “long-standing disregard” for employees’ health and safety, motivated by cost-cutting • Consultation closed on 10 October 2017 (with extensions)

  31. What does this mean for HSWA cases? • HSWA – normally involves situations where it is reasonably foreseeable that a breach of the relevant duty will give rise to an obvious and serious risk of death • Nature of work activity vs obvious nature of risk involved – does it make the alleged breach / negligence ‘more gross’? • Guidelines is likely to see sentences for gross negligence manslaughter increase significantly • Why wouldn’t a prosecutor pursue an organisation and an individual?

  32. Enforcement Notice appeals? • Why appeal? • HSE v Chevron North Sea Limited (Feb 2018) • widened test to be applied on appeal against enforcement notices served by HSE / Local Authority inspectors • Can Tribunal take into account evidence which was not known and could not reasonably have been known to the inspector at the time he issued the notice? • “When the inspector serves the notice, section 22 makes clear that what matters is that he is of the opinion that the activities in question involve a risk of serious personal injury..…However … when it comes to an appeal, the focus shifts. The appeal is not against the inspector’s opinion, but against the notice itself …. I can see no good reason for confining the tribunal’s consideration to the material that was, or should have been, available to the inspector."

  33. Questions?

  34. Contact details Kizzy Augustin, PartnerT: +44 (0) 20 3826 7302 kizzy.augustin@russell-cooke.co.uk

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