Safe as Houses? June Health & Safety legal update: Jonathan Guy Anderson Strathern LLP Edinburgh/Glasgow/Aberdeen

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2 Safe as Houses? Health & Safety legal update: June 2014 Jonathan Guy Anderson Strathern LLP Edinburgh/Glasgow/Aberdeen

3 Health & Safety: why? Reputation Financial cost Personal accountability: it really matters!

4 Taster of Topics General principles Risk assessment Accountability Recent cases Other developments

5 Health and Safety at Work etc Act 1974 Employers Duties: Section 2: To ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees Section 3: To ensure that persons not in your employment are not exposed to risks through the conduct of the business

6 Risk assessment blah, blah, blah, blah, blah, blah, blah, blah, blah, suitable, blah, blah, blah blah, blah, blah, blah, blah, blah, blah blah blah, blah, blah, blah, blah, blah blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah blah, blah, blah, and, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah blah, blah, blah, blah, blah, blah, blah, blah, blah, sufficient, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah blah, blah, blah, risk assessment, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah

7 Risk Assessment

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9 HSE cases: rural estate particular risk factors in rural environment suitable and sufficient risk assessment must record in writing dynamic risk assessment monitor and review, monitor and review + repeat process lone workers: specific risk assessment/s system for communication stress test: does the system work in practice?

10 Risk assessment Management of Health and Safety at Work Regs 1999 Every employer shall make a suitable and sufficient assessment of the risks to the health and safety of his employees and persons not in his employment arising or in connection with the conduct by him of his undertaking HSE guidance The law does not expect you to eliminate all risk, but you are required to protect people as far as is reasonably practicable

11 Reasonable practicability Employer must establish Do we have to do absolutely everything? Baker v Quantum Clothing Group Ltd A computation must be made in which the quantum of risk was placed in one scale and the sacrifice, whether in money, time or trouble, involved in the measures necessary to avert the risk was placed in the other; and if it can be shown that there is a gross disproportion between them the risk insignificant in sacrifice then the person upon whom the duty was laid discharged the burden of proving that compliance was not reasonably practicable HSE Guidance Generally, you need to do everything reasonably practicable to protect people from harm. This means balancing the level of risk against the measures needed to control the real risk in terms of money, time or trouble. However, you do not need to take action if it would be grossly disproportionate to the level of risk.

12 Reasonable practicable Linda Gillie v Scottish Borders Council [2013] CSOH 76 Janitor at Galashiels Academy slipped on stairs Smearing black shoe polish on toilet seats..moving lockers against doors so that people could not get out.. Slipped on Vaseline that had been placed by pupils on stairs Pursuer suggested that the School should have placed teachers or management on stair Court said that foreseeability of injury very low measure suggested by pursuer disproportionate not reasonably practicable

13 Accountability

14 Accountability Health and safety is integral to success. Board members who do not show leadership in this area are failing in their duty as directors and their moral duty, and are damaging their organisation. An organisation will never be able to achieve the highest standards of health and safety management without the active involvement of directors. External stakeholders viewing the organisation will observe the lack of direction.

15 Accountability Board need to establish a health and safety policy that is much more than a document it should be an integral part of the organisations culture Health and safety should be a regular item on board agenda Health and safety champion Training Setting targets Review

16 Criminal Accountability Offences by bodies corporate Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Where the affairs of a body corporate are managed by its members, the preceding subsection shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate Connivance Criminal accountability non-delegable

17 Civil Accountability No liability for breaches of sections 2 to 8 of HSWA 1974 The Enterprise and Regulatory Reform Act 2013 section 69 (section 47 of HSWA 1974) 1 October 2013 injured party right to claim for breach of statutory duties removed, restricted to common law lower insurance premiums (?)

18 Recent cases Cheap Love and Joy causes death Religious charity ordered to pay 200,000 in fines and costs after an unemployed volunteer died in a fall through a roof void during insulation work at the Liverpool Lighthouse Church Builder imprisoned for 33 weeks Love and Joy Ministries received 1988 grant to insulate roof space Paid a churchgoer 588 to do work Charity did not check his competence prior to getting him to the job. Other contractors quoted higher and warned of risks Risk assessment very poor and did not identify a safe system of work. Failed to review assessment Breach of section 3(1)

19 Recent cases Pub could have avoided cleaner s ladder death with purchase of 100 pole brush 8 year old ladder toppled when being used Risk assessment inadequate for the range of work at height on the site The task did not need to be done on a ladder. A 100 pole was sufficient Breach of section 2 and fine of 200,000!!!!!

20 Other developments Employment Tribunals (Constitution and Rules of Procedure) Regulations ("the 2013 regulations") Costs order up to 20,000 where no reasonable prospects of success HSE (2013) National LA enforcement code. Health and safety at work, England, Scotland and Wales Sets out the HSE based approach to targeting H & S interventions to be followed by LA s HSE list of 10 sectors/activities for pro-active inspections by LA Corporate manslaughter Three convictions for corporate manslaughter and one acquittal (6 convictions so far) Asbestos Regs

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