Health and Safety Legal Update IOSH North East

Health and Safety Legal Update IOSH North East

Health and Safety Legal Update IOSH North East of Scotland Presented by Kevin Clancy 14 June 2017 Speaker Kevin Clancy Senior Associate, Commercial Disputes and Regulation T: 0131 473 5798 E: [email protected] 14 June 2017 Health and Safety Legal Update 2 Summary Health and Safety over the last 12 months

Current developments Enforcement and case-law Looking to the future 14 June 2017 Health and Safety Legal Update 3 Health and Safety over the last 12 months 14 June 2017 Health and Safety Legal Update

4 Where are we now? The health and safety landscape in the UK An improving culture of safety Mature system of regulation Compares favourably to other European countries HSE Statistics for 2015/16 144 fatalities c.73,000 other injuries to employees reported under RIDDOR 660 prosecutions resulting in a conviction 11,403 notices issued by enforcing bodies c.38 million in fines resulted from prosecutions

14 June 2017 Health and Safety Legal Update 5 Current Developments 14 June 2017 Health and Safety Legal Update 6 Fatal Accident Inquiries Changes to FAI legislation The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 comes into force on 15 June 2017.

The provisions in the Act are relatively high level. Act of Sederunt (Fatal Accident Inquiry Rules) 2017: details of practice and procedure are implemented by new FAI rules (also come into force on 15 June). 14 June 2017 Health and Safety Legal Update 7 Fatal Accident Inquiries (2) Changes include: extension of the categories of mandatory FAIs

discretionary FAIs in respect of the deaths outwith the UK of persons ordinarily resident in Scotland relaxation of jurisdiction (FAIs to proceed at the most convenient location) inquiries into multiple deaths (regardless of the place where the deaths took place) further inquiry proceedings either by (a) re-opening an inquiry or (b) holding a fresh inquiry. 14 June 2017 Health and Safety Legal Update 8

Fee for Intervention Significant changes ahead to amend the dispute process Brought about by an application for Judicial Review by OCS Group UK Agreement reached with HSE (approved 23 February 2017) Withdrawal by HSE of Notice of Contravention Agreement to revise the dispute process for challenging FFI invoices

To be introduced by 1 September 2017 14 June 2017 Health and Safety Legal Update 9 ISO 45001 New international standard for occupational health and safety Replacing OHSAS 18001 Out for consultation over the summer 2017 Further discussion meeting scheduled for September 2017 View to possible publication in November 2017 Aims: providing a framework to build an effecting management system

How? Context of organisation Leadership Support Improvement 14 June 2017 Health and Safety Legal Update 10 Enforcement 14 June 2017 Health and Safety Legal Update 11 Enforcement

Tougher sentencing guidelines introduced in England and Wales (in force 1 February 2016) Recognition by Scottish Courts that the guidelines can offer a cross-check Higher fines to become more common? Continued enforcement by dedicated Health and Safety Division within Crown Office 14 June 2017 Health and Safety Legal Update 12

Case-law developments Scottish Power: judicial acceptance of revised sentencing guidelines Appeals against Enforcement Notices Liability for health and safety advisers following criminal prosecution? Director imprisonment and director disqualification 14 June 2017 Health and Safety Legal Update 13

Case-law developments Scottish Power v HMA [2016] Facts: The accident involved a faulty valve installed in pipework through which high-pressure, high-temperature steam passed The value was turned by the employee, releasing high temperature steam Resulted in significant injuries to the employee 14 June 2017 Health and Safety Legal Update

14 Case-law developments Scottish Power v HMA [2016] Issues for the Court: What level of fine is appropriate in respect of breaches of health and safety law by a very large corporation? To what extent should the Scottish Courts should have regard to guidelines produced by the Sentencing Council of England and Wales? Decision at first instance:

14 June 2017 HSWA, section 2 breach. Fine: 2.5m, reduced to 1.75m on account of early guilty plea Health and Safety Legal Update 15 Case-law developments Scottish Power v HMA [2016] Appeal against sentence: Appeal allowed: 1.5m substituted, reduced to 1.2m on account of early guilty plea It was said by the Court that the guidelines will often provide a useful cross-check, especially where offences are regulated by a UK statute

14 June 2017 Health and Safety Legal Update 16 Case-law developments HM Inspector of Health and Safety v Chevron North Sea Limited [2016] An appeal from a decision of the Employment Tribunal at Aberdeen. Facts: The inspector considered that stairways and staging were unsafe. He therefore served a prohibition notice on Chevron. The installation manager had offered an undertaking that the remedial

work would be undertaken straight away, and that the staging and stairways would not be used until the works had been completed. Subsequent testing revealed that, except for the panel which had been sheared by the fire axe, all met the British Standard requirement. 14 June 2017 Health and Safety Legal Update 17 Case-law developments HM Inspector of Health and Safety v Chevron North Sea Limited [2016] The Tribunal cancelled the Prohibition Notice The Inspector challenged the decision of the Tribunal.

Raised a particularly important issue on the scope of an appeal to the Tribunal under section 24 of the Health & Safety at Work etc. Act 1974. Whether, and to what extent, the Tribunal can take into account information which was not available at the time of the notice. 14 June 2017 Health and Safety Legal Update 18 Case-law developments HM Inspector of Health and Safety v Chevron North Sea Limited [2016] Decision:

An appeal under section 24 of the Health & Safety at Work etc. Act 1974 is an appeal on the facts There is no sound basis for restricting appeals to what would in essence be a form of judicial review of the inspectors opinion. An appeal on the facts is a much wider concept It also enables an appellant to prove that the factual content of the notice was wrong Currently under appeal to the Supreme Court (December 2017) 14 June 2017 Health and Safety Legal Update 19 Case-law developments D Geddes (Contractors Limited) v Neil Johnston Health and Safety Services Limited [2017]

Facts: 14 June 2017 A lorry was in the course of tipping a load of materials into a feed hopper. At the edge of the raised area above the hopper there was a stop block (to prevent lorries from reversing over the edge). As the driver went to tip the materials, he reversed his lorry over the stop bloack into the hopper and was killed. It was found that a build-up of tipped sand and gravel had allowed it to act as a ramp over which a large-wheeled vehicle was capable of driving The company pled guilty Health and Safety Legal Update

20 Case-law developments D Geddes (Contractors Limited) v Neil Johnston Health and Safety Services Limited [2017] Civil Proceedings: 14 June 2017 Following the guilty plea, Geddes was fined 200,000 Breach of the Quarries Regulations 1999 D Geddes sought to recover that fine from its H+S adviser Matter came before the Court of Session for legal argument (debate) The issue was whether a rule prohibiting against recovery prevented Geddes from bringing this claim for damages

An evidential hearing (proof) was allowed Health and Safety Legal Update 21 Case-law developments Merlin Attractions Culpability: extremely high Likelihood of harm: Level A Risk of harm arising: Great Fine set at 7.5 million Reduced to 5 million Impressive level of co-operation worked in the organisations favour

The importance of aggravating and mitigating factors 14 June 2017 Health and Safety Legal Update 22 Looking to the future 14 June 2017 Health and Safety Legal Update 23 Looking to the future HSE Opportunities and Challenges A tendency by duty holders to focus more on safety and less on health

Helping Great Britain Work Well (launched early 2016) Publication of sector specific information Inspector focus will turn to health issues Challenge is how to get SMEs using the guidance / tools Managing risk

Supporting the system Maintain regulatory framework Drive improvement Sector specific strategies Enforcement 14 June 2017 Health and Safety Legal Update 24

Looking to the future: Brexit Further deregulation or business as usual? Increased role of HSE? Reaction of business? Continued trading with EU? IOSH will continue to promote agreed international standards and to defend against any erosion of health and safety protections Richard Jones, IOSH head of policy and public affairs

14 June 2017 Health and Safety Legal Update 25 Questions & Answers Image Flickr.com: Jilligan86 14 June 2017 Health and Safety Legal Update 26 www.shepwedd.co.uk London Condor House 10 St. Pauls Churchyard London EC4M 8AL T +44(0)20 7429 4900 F +44(0)20 7329 5939

Edinburgh 1 Exchange Crescent Conference Square Edinburgh EH3 8UL T +44(0)131 228 9900 F +44(0)131 228 1222 Glasgow 191 West George Street Glasgow G2 2LB T +44(0)141 566 9900 F +44(0)141 565 1222 Aberdeen 1 Berry Street Aberdeen AB25 1HF T +44(0)1224 343 555 F +44(0)1224 343 555

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