GETTING THE BALANCE RIGHT

1

• GETTING THE BALANCE RIGHT
• SENSIBLE HEALTH AND SAFETY MANAGEMENT
• FOR TODAYS WORKPLACE
• MARK OWEN
• SOLICITOR
• PENINSULA BUSINESS SERVICES
• IRM RISK FORUM 2008

2

• A challenge for all businesses.
• Striking the right balance.
• ENABLING work activities to go ahead
• But
• ENSURING that risks associated with work
  activities are managed safely

3
PURPOSE OF WORKSHOP

• Consider meaning of risk within context of Health
  and Safety (Porter and HTM).
• Look at how businesses might improve the
  management of Health and Safety.
• How might businesses embed a culture of
  compliance?
• Look at minimising exposure to risk following a
  workplace fatality Corporate Manslaughter case
  study.

4
RUNNING FOR COVER

• Widely acknowledged that Health and Safety gets a
  bad press.
• Many argue that businesses and organisations fail
  to get the balance right.
• Health and Safety get the blame latest example.
  

5
SACK RACE IS BANNED AS HEALTH RISK
The sack race and three legged race have been
banned from a school sports day because the
children might fall over and hurt
themselves. Parents and campaigners describe the
move as completely over the top. The founder
of the Campaign Against Political Correctness
said Its health and safety rules gone mad. The
worst thing that could possibly happen is the
children fall over The Head of Education at the
school said we looked at a three legged race and
a sack race but what we wanted to do was minimise
the risk to the children. We thought it would be
better to do hopping and running instead because
there was less chance of them falling over.
6
RISK AWARE -v- RISK AVERSE

• A public policy aimed at eliminating all risk is
  profoundly negative.
• Where do organisations, businesses and schools
  draw the line?
• Risks to children very much at the forefront of
  the debate on risk.
• Provides a helpful backdrop to an analysis of
  risk, and risk management, given the debate
  raging outside the workplace.

7

• As parents, there is a danger that we are
  cushioning ourselves, and our children, too much
  from risk taking and the lessons of life that
  actually protect us.
• The pendulum is swinging back. Many now
  recognise that petty rules ought not to hinder
  learning, innovation and adventure.
• And yet in the workplace, the perception is that
  we havent yet got the balance right.

8

• Prosecuting authorities appear more concerned
  about the possibility of an accident happening
  rather than the probability of it happening.
• Health and Safety Practitioners approach is that
  we strike the right balance when we make risks,
  associated with workplace activities, as safe as
  is necessary and not as safe as is possible.

9

• Perhaps the Court of Appeal have been listening
  
• R-v- Porter2008 EWCA Crim1271
• A very important recent appeal decision, which
  reviews and restates the current legal test of
  risk under HSWA 1974.
• Real, not theatrical or fanciful, risk, will be
  the only touchstone in determining whether and
  offence under HSWA 1974 has been committed.

10

• James Porter Headmaster Hillgrove School
  North Wales.
• In post 30 years.
• Independent preparatory school for children aged
  3 16.
• School site rugged with irregular terrain.
• Satellite classrooms linked by concrete and brick
  steps.
• Excellent safety record. HSE never visited.

11

• 7th July 2004 playtime took place outside, as
  usual, in the playground.
• Kian was a four year old pupil. He, and others,
  were being supervised by a very experienced
  teacher.
• Kian left the upper playground and went out of
  bounds down to the lower playground.
• In doing so, he walked down a set of steps, and
  jumped from the 4th step from the bottom.

12

• Kian fell over and bumped his head.
• He was taken to hospital and transferred to Alder
  Hey in Liverpool.
• Although only sustaining a minor head injury, he
  contracted pneumonia and the MRSA virus in
  hospital and died on the 11th August 2004.

13

• Mr Porter was interviewed at length by the HSE.
• Levels of supervision were raised.
• He said - staff were experienced and
• - steps were everywhere
• And, that it was important to instil in children
  a sense of responsibility.
• He was prosecuted under Section 3 HSWA 1974 and
  was subsequently convicted following a trial.

14

• It shall be the duty of every employer to
  conduct his undertaking in such as way as to
  ensure, so far as is reasonably practicable, that
  persons not in his employment who may be affected
  thereby are not thereby exposed to risks to their
  Health or Safety.
• S3 HSWA 1974
• The risk, to which it was alleged Mr Porter has
  exposed his pupils, (including Kian) was the
  risk of falling on a flight of steps whilst at
  school.

15

• The Court of Appeal overturned his conviction.
• They found that the risk of falling on the steps
  was not real, and therefore the trigger point
  for a prosecution/conviction had not been met.
• What is important is that the risk which the
  prosecution must prove should be real as opposed
  to a fanciful or hypothetical risk.. There is no
  obligation under the statute to alleviate those
  risks which are merely fanciful.
• Lord Justice Moses

16

• How then is the line to be drawn between those
  risks which are real and those which are
  hypothetical?..... There is no objective standard
  or test applicable to every case by which the
  line may be drawn. But in most, if not every
  case, there will be one way or the other,
  important factors which the Jury are obliged to
  take into account to determine whether the risk
  is real is fanciful. None of them is
  determinative but may will be of importance. For
  example, the absence of any previous accident in
  circumstances which occurred day after day will
  be highly relevant
• As we have said, that the risk is part of the
  everyday incidence of life goes to the issue as
  to whether an injured person was exposed to risk.
  Where the risk can truly be said to be part of
  the incidence of every day life, it is less
  likely that the injured person could be said to
  have been exposed to risk by the conduct of the
  operation in question.

17

• The Court got the balance right in the context of
  risks arising for a pupil whilst at school.
• Is the Court likely to get the balance right in
  the context of managing risks associated with
  work related activities, where an adult employee
  does something inexplicable?
• Probably yes HTM Limited 2005 EWCA Crim1156

18

• January 2002 Fred Cook and John Crimmins 2
  employees of HTM tasked with moving a
  telescopic lighting tower, 9 metres in height,
  used to light contraflows.
• Both men were experienced.
• There were no time pressures.
• The commonly accepted practice involved lowering
  the tower, retracting its stabilisers and towing
  it away.

19

• For unknown reasons both men moved the lighting
  tower in its raised position.
• As they did so, it came into contact with
  overhead power cables, and they were both killed
  by electrocution.
• HTM was prosecuted under Section 2 HSWA.
• It shall be the duty of every employer to
  ensure, so far as is reasonably practicable, the
  health, Safety and Welfare at work of all his
  employees.
• HTM pleaded not guilty.

20

• In its defence, the Company wanted to adduce
  evidence of the following-
• Messers Cook and Crimmins training and
  instruction.
• That the accident resulted from their own actions
  (contrary to training and instruction).
• That their actions were not foreseeable.

21

• In a tenacious prosecution, the HSE put forward a
  robust legal argument saying that-
• Foreseeability played no part in determining
  whether there was a breach of the statutory duty.
• Their employees conduct could not be relied upon
  as a defence to a charge under Section 2.
• If accepted, that would have rendered duties
  under Section 2 (and Section 3) absolute duties.

22

• The trial Judge disagreed with the HSE.
• The HSE therefore appealed that decision to the
  Court of Appeal.
• Fortunately the Court of Appeal dismissed their
  appeal.
• It concluded that foreseeability was an integral
  part of reasonable practicability, albeit not the
  only factor.

23

• It seems to us that a Defendant to a charge
  under Section 2 or indeed Section 3 or 4, in
  asking the Jury to consider whether it has
  established that it has done all that is
  reasonably practicable, cannot be prevented from
  adducing evidence as to the likelihood of the
  incidence of the relevant risk eventuating, in
  support of its case that it had taken all
  reasonable means to eliminate it.
• Lord Justice Latham

24

• At trial, the case was eventually decided in the
  Companys favour and they were acquitted.
• The jury accepted the Companys defence.
• Not only were the two employees acting contrary
  to their training and instruction.
• Their actions were also inexplicable.

25

• Both important cases when taken together, will
  help employers manage risk, and get the balance
  right themselves.
• Not every risk in the workplace needs to be
  guarded against.
• Should employees act contrary to their training
  and instruction then that can be a defence.
• Accidents do happen.

26
IMPROVING THE MANAGEMENT OF HEALTH AND SAFETY

• Improving the management of health and safety in
  the workplace requires an awareness, by an
  employer, of its responsibilities under HSWA.
• And the steps that reasonably need to be taken to
  meet those responsibilities.

27
THE KEY RESPONSIBILITIES

• It shall be the duty of every employer to
  ensure, so far as is reasonably practicable, the
  health, safety and welfare at work, of all the
  employers employees.
• Section 2 HSWA The Duty to Employees

28

• Principal and overriding responsibility upon
  employers.
• Implications are as extensive as they are
  onerous.
• Obligations upon employers to provide

29

• Safe plant and machinery,
• Safe systems of work,
• Safe arrangements for the use of articles and
  substances,
• Sufficient information, instruction training and
  supervision,
• A safe working environment,
• Adequate facilities and arrangements for employee
  welfare at work.

30
THE KEY RESPONSIBILITIES

• It shall be the duty of every employer to
  conduct the employers undertaking in such a way
  as to ensure, so far as is reasonably
  practicable, that persons not in his or her
  employment who may be affected thereby are not
  thereby exposed to risks to their health or
  safety.
• Section 3 HSWA The Duty to Others

31

• Extends to non-employees and is therefore much
  wider in its scope.
• Concerned with the creation of risk actual harm
  is not necessary.

32
THE DEFENCE SO FAR AS IS REASONABLY PRACTICABLE

• Workplace activities often give rise to inherent
  risks to safety.
• Employers cannot hope to achieve absolute safety.
• Sections 2 and 3 recognise this reality by
  providing a defence.

33

• The defence applies when a Court is satisfied
  that a possibility of danger existed, but that
  the employer did all that was reasonably
  practicable to minimise the risk.
• What is reasonably practicable is not the same as
  what is physically possible.
• Did the employer do everything that was
  reasonably practicable? is a factual question.

34

• In any proceedings for an offence under any of
  the relevant statutory provisions consisting of a
  failure to comply with a duty or requirement to
  do something so far as is reasonably
  practicable.. it shall be for the accused to
  prove.. that it was not reasonably practicable
  to do more that was in fact done to satisfy the
  duty or requirement or, that there was not a
  better practicable means that was in fact used to
  satisfy the duty or requirement.
• Section 40 HSWA

35

• The reverse burden of proof.
• The presumption of innocence.
• Justified necessary and proportionate.

36

• Demonstrating reasonable practicability involves
  an assessment.
• On one side - the degree of risk.
• On the other side the sacrifice (time and
  money) involved in any steps necessary to reduce
  or avert the risk.
• If there is a great disproportion between the
  sacrifice and the risk, then the step in
  question is not reasonably practicable.

37
RISK ASSESSMENTS

• The responsibilities set out in Sections 2 3
  require employers, and others, to meet the
  standards required of them, in so far as it is
  reasonably practicable.
• That approach implies that some degree of
  judgement or assessment, of the risks associated
  with a workplace activity, is called for.
• Carrying out a risk assessment is therefore an
  effective way of meeting your key
  responsibilities under the law.

38
RISK ASSESSMENTS

• Every employer shall make a suitable and
  sufficient assessment of-
• 1. The risks to the health and safety of his
  employees to which they are exposed whilst they
  are at work
• The risks to the health and safety of
  persons not in his employment arising out of or
  in connection with the conduct by him of his
  Undertaking.
• Regulation 3(1) Management of Health and Safety
  at Work Regulations 1999

39

• A formalised Risk Assessment procedure is
  undoubtedly the hallmark of any successful Health
  and Safety Policy.
• Although Risk Assessments are needed to help
  employers management those risks to health and
  safety posed by hazardous activities, in reality,
  they should cover any operation or procedure in
  the workplace (new or established) that poses a
  threat or risk to the health and safety of
  employees and others.

40

• Those employees with the responsibility of
  actually carrying out the risk assessments should
  be allowed sufficient time (away from the
  pressures of the work station or desk) to
  undertake the assessments and should be given
  adequate training.
• Management should also commit to change should
  the risk assessment procedure require it.
• Once the findings of risk assessments have been
  communicated to all staff and implemented, they
  should then from to time, be reviewed and if
  necessary, updated so as to reflect changing
  environments in the workplace.

41
THE MANAGEMENT OF HEALTH AND SAFETY

• Except in such cases as may be prescribed, it
  shall be the duty of every employer to prepare,
  and as often as may be appropriate revise, a
  written statement of his general policy with
  respect to the health and safety at work of his
  employees, and the organisational arrangements
  for the time being in force for carrying out that
  policy, and to bring the statement and any
  revisions of it to the notice of all his
  employees.
• Section 2(3) HSWA

42

• A duty upon all employers with five or more
  employees.
• Vital if the employer is to begin to achieve a
  safe system of work.
• It should record the arrangements in place and
  then keep them under constant review.
• Employees must be aware of the policy.

43
THE MANAGEMENT OF HEALTH AND SAFETY

• Every employer shall .. appoint one or more
  competent persons to assist him in undertaking
  the measures he needs to take to comply with the
  requirements and prohibitions imposed upon him by
  or under the relevant statutory provisions .
• Regulation 7(1) Management of Health and Safety
  at Work Regulations 1999

44
DEFINING THE COMPETENT PERSON(S)

• They are required to have adequate time off, and
  adequate means at their disposal, coupled with
  sufficient training, experience, knowledge and
  other qualities, to enable them to properly
  fulfil their duties.

45
A COMPETENT CHAMPION

• A health and safety Champion should be
  appointed someone who has sufficient clout to
  make a difference and yet someone who understands
  and appreciates the systems of work in the
  business which pose the greatest risks. They
  should have a health and safety budget should be
  properly trained should have direct access to
  the Board (or Owners of the business) and should
  be in a position to identify working practices
  and procedures, however small, that might be
  contributing individually or collectively, to
  unsafe systems of work.

46
THE MANAGEMENT OF HEALTH AND SAFETY

• It shall be the duty of every employee at
  work.. To take reasonable care for the health
  and safety of himself, and of other persons, who
  may be affected by his acts or omissions at
  work.
• Section 7 HSWA

47
THE MANAGEMENT OF HEALTH AND SAFETY DIRECTORS
RESPONSIBILITIES

• The Defendant in any prosecution under HSWA will
  generally be the employer i.e. the Limited
  Company.
• Directors and Senior Managers however, can be
  personally targeted for breaches, by virtue of
  Section 37 HSWA.

48

• Where an offence. committed by a body corporate
  is proved to have been committed with the consent
  or connivance of, or to have been attributable to
  any negligence on the part of, any Director,
  Manager, Secretary or other similar officer of
  the body corporate. he as well as the body
  corporate shall be guilty of that offence and
  shall be liable to be proceeded against and
  punished accordingly.
• Section 37 HSWA

49
CULPABILITY

• Actual subjective knowledge, on the part of a
  Director (or other officer) of the material
  facts giving rise to the commission of the
  offence by the body corporate was not the only
  ingredient for an offence to have been committed.
• This question is just as relevant Should they
  have known?

50

• Directors are not expected to micro-manage health
  and safety arrangements. Directors should
  direct!
• The emphasis will be on the effective management
  of health and safety issues.
• Increasingly the culture within a Company is
  being scrutinised.

51
DIRECTORS LEADING HEALTH AND SAFETY

• Guidance Institute of Directors and the Health
  and Safety Commission.
• Leadership action for Directors and Board
  members.
• By following this guidance, you will help your
  organisation find the best ways to lead and
  promote health and safety, and therefore meet is
  legal obligations.
• www.hse.gov.uk/leadership.

52
EMBEDDING A CULTURE OF COMPLIANCEORGANISATIONAL
ARRANGEMENTS
53

• Commit to health and safety
• Mission statement
• Visible and active commitment from the top
• Devotion of sufficient resources
• Health and safety director
• Follow guidance
• Extensive relevant and accessible
• No excuses
• E.g. HSG179-swimming pools

54

• Employee documentation
• Job description and contracts
• Remove any disconnect
• Plain English/Polish(?)
• Relevant and up to date
• Training records
• Up to date
• Completed reviewed and audited
• Appraisals training needs
• Reward and recognition schemes

55

• Register and records
• Policy statement
• Risk assessments and method statements
• Accident book
• Minutes of board meetings
• Track record
• Act on accidents, near misses and warnings
• Be aware of changing circumstances and
  legislation
• Be wary of email communication

56
THE HALLMARK OF A CULTURE OF COMPLIANCE

• Strong and active leadership
• Worker involvement
• Continuous assessment and review

57
THE CORPORATE MANSLAUGHTER AND CORPORATE HOMICIDE
ACT 2007 C.M.A

• MINIMISING EXPOSURE TO RISK

58

• Displaces identification principle.
• Levels the playing field between large and small
  Companies.
• Makes it easier to prosecute Companies for
  Corporate Manslaughter.

59
IMPLICATIONS

• Police investigations into workplace fatalities
  will increase.
• More individuals will be caught up in the
  process.
• There are likely to be more interviews (under
  caution) and more arrests.

60
IMPLICATIONS

• A jury will be invited to review the culture of a
  company.
• Its attitude and commitment to safety,
  enforcement, and control, will be under closer
  scrutiny.
• Scenes of crime officers will be spending more
  time in the Board Room than on the Shop floor.

61
IMPLICATIONS

• A Jury will be invited to have regard to any
  relevant health and safety guidance.
• Organisations must make themselves aware of
  Approved Codes of Practice and HSE Guidance
  documents.
• Leadership actions for Directors and Board
  Members.

62
IMPLICATIONS

• A jury will be able to consider whether the
  evidence gathered by the Police shows that there
  were
• attitudes, policies, systems or accepted
  practices, within the organisation, that were
  likely to have encouraged the failure, or to
  have produced tolerance of it.
• An organisations internal practices will be
  under the spotlight and will be assessed and
  reviewed.

63
THE POLICY OF WEARING HIGH VISIBILITY JACKETS

• Enforced by the organisation?
• Are breaches tolerated?
• What about induction, training, monitoring and
  sanctions?
• Negligence on the part of the organisations
  Senior Managers can be aggregated.

64
INGREDIENTS

• Section 1 of the CMA states that
• An organisation to which this section applies is
  guilty of an offence if the way in which its
  activities are managed or organised -
• Causes a persons death, and
• Amounts to a gross breach of a relevant duty of
  care owed by the organisation to the deceased.

65
SANCTIONS AVAILABLE - FINES

• The maximum fine is unlimited for offences under
  the CMA.
• Starting point 5 of turnover
• Range 2.5 - 10 of turnover

66
SANCTIONS AVAILABLE PUBLICITY ORDERS

• The CMA provides for a publicity order.
• Court requires an organisation convicted of
  Corporate Manslaughter to advertise the fact of
  its conviction, and the details relating to it.

67
SANCTIONS AVAILABLE REMEDIAL ORDERS

• The CMA also provides for a remedial order.
• Court sets out the steps to be taken by the
  organisation, to ensure that the failures that
  led to the death are addressed.

68
REFLECTIONS ON RISK

• For certain risks arising from the CMA, insurance
  ought to be in place-
• Legal costs in representing organisation.
• Legal costs associated with any Coroners inquest.
• Damages and legal costs associated with civil
  claim Fatal Accidents Act.

69
REFLECTIONS ON RISK

• However, many of the risks will generally not be
  insurable.
• Enhanced training and supervision
• Changes to plant and machinery
• Compliance with prohibition/improvement notices
• Lost management time
• Disruption to business police interviews
• Fines
• Damaged reputation

70
REFLECTIONS ON RISK

• And what about?
• Legal costs in representing individual directors
  and senior managers, who may or may not be
  separately named as a defendant.
• Legal costs associated with the familys
  application for judicial review, after the CPS
  decide not to prosecute the organisation for
  corporate manslaughter.

71
REFLECTIONS ON RISK

• Whilst organisations can transfer some risk, a
  fatal accident and subsequent CMA Police
  investigation and/or prosecution, worsens an
  organisations risk profile and increases the cost
  of insurance.
• Hence the importance of effective risk management
  strategies.

72
CORPORATE MANSLAUGHTER CASE STUDY

• 5 Rings Construction Limited (5 Rings)
• 5 Rings a medium sized construction company
• Awarded a contract for groundwork's for one of
  the new sporting venues in the Olympic park.
• Groundwork's underway.
• Tight timetable.
• The contract imposes heavy penalties in the event
  of delay.

73

• Shortage of qualified and trained banksmen to
  assist in the movement of excavation vehicles on
  site. Winter weather is not helping.
• 5 Rings contact recruitment agency.
• Banksmen (Polish) sent at the beginning of the
  week.
• His English is not good.
• He produces a certificate.
• The site foreman who speaks Polish translates the
  document and confirms that he is qualified to
  work as a banksman in Poland.

74

• After a site induction lasting 30 minutes, which
  involves reading the policy statement and site
  rules (in English) he is issued with his PPE
  (high visibility jacket, boots and helmet).
• He begins work at the main entrance to the site.
• He works without incident on site for 3 days.

75

• On the 4th day an opportunity for overtime
  arises. He had already got changed.
• He decides to go back to work but forgets his
  high visibility jacket which he leaves in his
  locker.
• At 6.30pm that evening he is killed after being
  crushed by an excavator in the service yard.
• The driver said that he didnt see him.

76

• The Police and HSE both attend the site which is
  closed.
• The excavator is impounded.
• The driver is breathalysed by the Police he is
  positive for alcohol and is arrested.
• The Police interview the driver. The HSE
  interview the site foreman.

77

• Accident investigation reveals
• Banksman certificate was a (good) forgery.
• The deceased was an illegal migrant worker.
• That there was no formal procedure for dealing
  with foreign workers with language difficulties.
• That, although there was a risk assessment in
  place it was written on the assumption that it
  was daylight. There was no allowance for night
  time working.

78

• The risk assessment in any event was not shown to
  the deceased Polish worker. Query whether he
  would have understood it given his limited
  knowledge of English.
• The system for the separation of vehicle movement
  and pedestrians on site was poor. Several near
  misses had previously been reported to the site
  foreman but no action had been taken.
• There was no formal record of any such incidents.
• There was no policy in place for the testing of
  drivers (drugs or alcohol).

79
PRINCIPAL ISSUES

• Inadequately trained staff.
• Inadequate induction for foreign workers.
• Risk assessment neither suitable nor sufficient.
• Tolerance of not wearing high visibility jackets.
• A failure to properly record incidents/accidents
  on site.
• A lack of management scrutiny and auditing of
  policies and procedures.
• Competency issues regarding the site foreman who
  up until this accident had an impeccable track
  record.

80

• Is there sufficient evidence to warrant 5 Rings
  being investigated and prosecuted by the Police
  for Corporate Manslaughter?
• Probably not

81
THE WAY IN WHICH ITS ACTIVITIESARE MANAGED OR
ORGANISED

• An organisation will only be guilty of the
  offence if the way in which its activities are
  managed or organised by its senior managers, is a
  substantial element of the breach.
• Senior managers include people who play
  significant roles in the making of decisions
  about how the organisations activities are to be
  managed or organised or, the actual managing or
  organising of those activities.

82

• However Police Scenes of Crime Officers then
  turn their attention to the Board Room and away
  from the staff canteen, workshop, service yard
  and workers.

83

• This investigation reveals
• Monthly health and safety reports submitted by
  site manager (site foremans line manager)
  confirms that previous near misses although not
  recorded were reported in health and safety
  monthly reports.
• The site manager was told by the Operations
  Director to keep the situation under review. No
  further action was taken. The near misses were
  not recorded for fear of loosing further
  lucrative contracts in the Olympic park.

84

• Monthly health and safety reports also mentioned
  the lax attitude to the wearing of high
  visibility jackets and the absence of a formal
  procedure for dealing with worker language
  difficulties. No action was taken by management
  save that the site manager was given a budget to
  buy additional high visibility jackets as and
  when needed.
• Email traffic scrutinised in the weeks and months
  leading up to the fatal accident, reveals an
  exchange between the site manager and the
  Operations Director regarding the issue of
  foreign workers, highlighting the need for more
  formality in the process of recruitment,
  induction and training. The Operations Directors
  response was unsympathetic If they want to work
  in England then they should learn to speak
  English.

85

• Is there sufficient evidence to warrant 5 Rings
  being investigated by the police for corporate
  manslaughter?
• Probably yes

86

• Corporate Manslaughter
• Corporate Bonding

87

• Out goes
• White water river rafting
• Hot air ballooning
• Bungee jumping
• Paint balling
• In comes
• Painting lessons
• Cookery classes
• Collective drumming lessons
• Fine wine tasting

88
ANY QUESTIONS?