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Health & Safety Executive

HSE INSPECTIONS TO TARGET CONSTRUCTION FIRM DUST CONTROL PRACTICE

Firms across Great Britain are to be targeted in a new series of inspections focusing on dust control by the Health and Safety Executive (HSE), it has been announced today. Over the next few weeks, HSE will be concentrating on industries such as construction where occupational lung diseases, including in some

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Hard Line HSE Prosecution Strategy May Push Firms into Bankruptcy

The Health & Safety Executive risks pushing companies into bankruptcy by accusing firms of the committing the most serious offences when they have in reality committed lesser breaches, a leading lawyer has warned. Speaking on the eve of Safety and Health Expo at ExCel, London, Vikki Woodfine, Partner at law

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BDC 317 : Jun 2024

Health & Safety Executive

HSE focuses on health and safety in the construction industry in Birmingham

With the number of new construction schemes started across Birmingham City Centre almost doubling in 2021[1], the Health and Safety Executive (HSE) are sending inspectors out to sites to ensure firms are complying with health and safety regulations, it announced today (Thursday 3 March). As the city prepares to host the 2022 Commonwealth Games in just 140 days’ time, the HSE has noted increased development across the city potentially raising risks for both workers and the public. Sarah Hill, one of the HSE inspectors leading the campaign, commented: “With a high volume of construction sites in the busy city centre, there is inevitably more potential for incidents which can result in life-changing injuries or worse and working environments which can pose respiratory risks and are hazardous to workers’ health and well-being. This week, HSE colleagues and I will be visiting sites across the city to check that employers are managing risk and keeping workers and the public safe. The fatal injury rate in the construction sector is around four times the all-industry rate, while over 3,500 builders die each year from cancers related to their work, so this is reminder to employers that there is no room for complacency or non-compliance.” During a visit, inspectors look to see how companies keep their workers, and anyone affected by the work they do, healthy and safe. In the event that an employer is breaking the law, an inspector may deploy a range of measures such as issuing an improvement notice which allows a minimum of 21 days for the issue to put right or, in the case of the most serious breaches, prosecution. Sarah Hill added: “The majority of work-related illness, injuries and fatalities are wholly avoidable if those responsible for the welfare of their workers follow health and safety guidance and regulation. Construction is a high risk industry, but those that work in it are as entitled as everyone else to go home safe and well at the end of the day.” Health and safety statistics for the construction industry across the UK: 39 fatal injuries to workers in 2020/21 74,000 workers suffering work-related ill health (average over 2018/19-2020/21) 61,000 non-fatal injuries (averaged over 2018/19-2020/21) Four fatalities amongst members of the public.[2]

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HSE INSPECTIONS TO TARGET CONSTRUCTION FIRM DUST CONTROL PRACTICE

Firms across Great Britain are to be targeted in a new series of inspections focusing on dust control by the Health and Safety Executive (HSE), it has been announced today. Over the next few weeks, HSE will be concentrating on industries such as construction where occupational lung diseases, including in some cases occupational cancers, are more common. Inspectors will be visiting businesses across the country to see what measures have been put in place to protect workers’ lungs from the likes of asbestos, silica, wood, and flour dust. They will be looking for evidence of businesses and their workers knowing the risks, planning their work and using the right controls. Where necessary, HSE will use enforcement to make sure people are protected. HSE’s Chief Medical Officer, Professor David Fishwick said: “Exposure to asbestos, silica, wood, flour and other dust can have life-changing consequences. “Each year work-related lung diseases linked to past exposures are estimated to kill 12,000 workers across Great Britain. In many cases these diseases take a long time to develop after exposure, so the damage done may not be immediately obvious. Others, such as occupational asthma and acute silicosis, can occur more quickly. “These conditions can and do have a significant impact on both the individuals affected and those closest to them, so it is imperative that workers take the necessary precautions to protect their lungs.” Sarah Jardine, HSE’s Chief Inspector of Construction said:“We are carrying out this series of inspections to ensure businesses are fulfilling their legal duties to protect workers from harm. This includes controlling the levels of dust in workplaces. “We want to ensure employers and their workers are aware of the risks associated with any task that produces dust. Such work needs to be properly planned and use the right controls, such as water suppression, extraction and masks. “The bottom line is we want everyone, workers and their employers, to be protected from harm and ill health so they can go home healthy to their families.”

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Hard Line HSE Prosecution Strategy May Push Firms into Bankruptcy

The Health & Safety Executive risks pushing companies into bankruptcy by accusing firms of the committing the most serious offences when they have in reality committed lesser breaches, a leading lawyer has warned. Speaking on the eve of Safety and Health Expo at ExCel, London, Vikki Woodfine, Partner at law firm DWF LLP and Lead Commentator for Health and Safety professional information service Croner-i, said some companies could be forced to the wall by fines that could see medium sized firms fined up to £4m for health and safety offences. As well as potentially ruinous fines, companies were also having to bear the cost of contested cases because the Health & Safety Executive was adopting a policy of bringing cases at the highest level of culpability (and hence penalty) in “the vast majority of cases” forcing firms to go to court to argue for a lesser offence. Woodfine urged the HSE to take a “fairer” approach and a more realistic view of culpability and harm when bringing cases to court if it wanted to reduce the number of contested cases which placed a heavy burden on public funds as well as the companies being prosecuted. She also warned that, in order to secure the new higher fines, the HSE would look to charge the parent company in a larger group as well as the firm alleged to have committed the offence. “As the sentencing guidelines for health and safety offences have now bedded in and high fines are increasingly the norm, the next phase that will be interesting to watch from the courts is how they deal with group companies. It is unlikely to be long before we see a case where an attempt is made by the courts to sentence an organisation based on the turnover/financials of a “linked organisation” i.e., the Group or Parent Company.” She said: “In practice, companies are now faced with the most impossible of dilemmas when it comes to deciding whether to defend a prosecution. There has always been a fine reduction when pleading guilty and this remains the case. However, given the new fine levels, there has been an increase in the number of defended cases as companies simply cannot just accept their fate anymore given that the guidelines expose them to potentially business ending fines. “The guidelines have introduced a very real fear for small and medium-sized organisations that even if they plead guilty… they may still have to pay a fine where the starting point is £250,000 or more, which is often a prospect that could put them out of business. “Consequently, the advice to duty holders is changing, with many companies now seeking to test the prosecution evidence before a jury. While the company runs the risk of being found guilty, the judge may place the offence into a lower bracket in the guidelines, thereby reducing the overall penalty. “We are often seeing the HSE start the vast majority of cases saying that they are High Culpability, Category 1 Harm. The defence then seeks to say Low Culpability, Category 3 Harm and the hope then is that the judge will decide Medium Culpability, Category 2 Harm. But there is no certainty in this approach, and with the HSE stating cases at their highest point, companies cannot take the risk and are contesting cases “If the HSE wishes to see a reduction in contested trials (which take up significant manpower for them and a cost risk) a fairer approach from the HSE has to be adopted whereby it takes a more realistic view of culpability and harm at the outset.” Wolters Kluwer will be showcasing the Croner-i suite of products at Safety and Health Expo which runs at ExCel, London from 20-22 June. For more information go to www.wolterskluwer.co.uk   DATA ANALYSIS Health and safety offences From 1 February 2016, the entire sentencing landscape for health and safety offences changed resulting in a cataclysmic shift upwards in fine levels. These changes came in through the Health and Safety and Corporate Manslaughter Sentencing Guidelines which represented the biggest shake up to the regulatory landscape in recent years, with fines up to 10 times higher (or more in some cases), than their previous levels. Not only are companies now being targeted by increased fines but individuals are being prosecuted more and we are seeing cases of imprisonment of directors and managers in cases where that would have been unheard of previously. In such cases, when considering fine levels, the company’s turnover is the relevant figure for the court to look at. The guidelines classify corporate entities by reference to turnover: micro up to £2 million; small £2–10 million, medium, £10–50 million and large more than £50 million. Very large (where judges are given discretion to move beyond these parameters) does not have its own bracket, but the guidelines suggest this would include a company with a turnover of over £900 million. This is a worrying prospect for many hauliers, given that transport is often a high turnover business, albeit with a relatively modest profit margin. Once the company size has been determined from its turnover, the guidelines then calculate a fine level (with a range of potential sentences and an indicated starting point) based on a calculation taking into account turnover, risk of harm and culpability. Importantly the guidelines do not require actual harm to have occurred (although it will be an aggravating feature), only the risk of harm. Therefore previously innocuous risks could now lead to prosecutions where a risk of serious injury or even death is proven. This is the area that often causes surprise to dutyholders now and there have been a number of cases, including cases attracting fines in excess of £1 million, where there has been no harm at all, only a risk of harm. For example, the case of ConocoPhillips where there was a risk from a gas leak, but no harm caused. This case saw a fine of £3 million imposed, (which would have been

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