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Blake Lapthorn's In-House Lawyer and Decision Makers' forum - 'Health & Safety: the changing legal landscape'

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Information about Blake Lapthorn's In-House Lawyer and Decision Makers' forum - 'Health &...

Published on February 25, 2014

Author: BlakeLapthorn

Source: slideshare.net

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On Tuesday 25 February 2014, Blake Lapthorn's commercial litigation team hosted an In-House Lawyer and Decision Maker's forum in Southampton. Our speakers, John Mitchell and Nicola Hutchins, discussed the changing landscape of Health & Safety law.
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Blake Lapthorn’s in-house lawyer and decision makers’ forum Health and Safety : the changing legal landscape John Mitchell, Partner john.mitchell@bllaw.co.uk Nikki Hutchins nicola.hutchins@bllaw.co.uk

The deregulation agenda John Mitchell, Partner john.mitchell@bllaw.co.uk

The background October 2010 – Lord Young’s report “Common Sense, Common Safety” November 2011 – Professor Löfstedt’s report “Reclaiming Health and Safety for All” January 2012 – Prime Minister’s speech in Maidenhead

New legislation Defence costs Fee for intervention Abolition of strict liability in compensation cases Injury reporting Consolidation and repeal of various specialist regulations

Approved Codes of Practice ACoPs abolished – L21 (replaced by re-written HSG65 on managing health and safety) – L81 on gas service pipes – L116 on preventing accidents to children in agriculture ACoPs radically amended: – – – – – L5 on COSHH L8 on legionnaires’ disease L28 on workplace health, safety and welfare L56 on gas safety (consolidation of 2 ACoPs) L138 on dangerous substances and explosive atmospheres (consolidation of 5 ACoPs – L143 on asbestos (consolidation of 2 ACoPs)

Other non-legislative action by HSE Appeal panel – http://www.hse.gov.uk/contact/challenge-panel.htm Myth busters – http://www.hse.gov.uk/Myth/myth-busting/index.htm

Action on local authorities Primary authority Inspection plans Enforcement code – http://www.hse.gov.uk/lau/national-la-code.pdf

In the pipeline The Deregulation Bill – The self employed “exemption” – The “promotion of growth” duty The Business Taskforce “Cut EU red tape” – Abolish the requirement for small businesses to keep written records of risk assessments – Relax the requirements for the employment of young people

Fallout Comprehensive Spending review – cut HSE budget by 2014/5 by 35% – HSE is struggling to maintain frontline numbers FFI: – Won’t plug the gap – Has demoralised swathes of experienced inspectors who have left Prosecutions – Have remained constant over last 5 years

Corporate Manslaughter Nikki Hutchins nicola.hutchins@bllaw.co.uk

Corporate Manslaughter & Homicide Act 2007 An organisation is guilty of an offence … if the way in which its activities are managed or organised:a) b) Causes a person’s death; and Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased” An organisation is guilty only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach

Senior Management “The Persons who play significant roles in i. ii. The making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised; or The actual managing or organising of the whole or a substantial part of the activities”

Relevant Duty Of Care The relevant duty of care is one already owed under the law of negligence A question of law to be determined by the Judge, making any findings of fact necessary to decide that question Employer and occupier duties

Gross Breach The conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of that organisation in the circumstances Falls to jury to decide if gross breach The jury must consider whether the evidence shows that the organisation failed to comply with any Health & Safety legislation that relates to alleged breach, and if so: a. How serious that failure was b. How much risk of death it posed

Jury Factors The jury may also: a. Consider the extent to which evidence shows 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 b. Have regard to any Health & Safety guidance that relates to the alleged breach

Sentencing Guidelines Corporate Manslaughter and Health & Safety offences causing death : In force 15 February 2010 Factors likely to affect seriousness Factors to afford mitigation A fixed correlation between the fine and either turn over or profit is not appropriate Corporate Manslaughter – seldom less than £500,000 and may be measured in £1,000,000’s Health & Safety offences causing death – seldom less than £100,000

Investigations Police have primacy : HSE or fire authority advice Reference to the CPS Special Casework Unit Very complex investigations Pre April 2008 evidence The story so far 5 cases already decided Companies small and director owned and managed Directors charged under Section 37 5 other cases where charges have been announced

Case Study

The Good News The prospects of being subject to an investigation can be much reduced by: – Effective risk management for effective risk assessment, mismanagement and risk review systems – Enforcement of systems – Adopting best practice and guidance HSG65 Plan-Do-Check-Act IOD/HSE “Leading Health and Safety at Work” – Acceptance of Health & Safety responsibilities at all levels – Leadership from the top – Planning

Blake Lapthorn’s in-house lawyer and decision makers’ forum Health and Safety : the changing legal landscape John Mitchell, Partner john.mitchell@bllaw.co.uk Nikki Hutchins nicola.hutchins@bllaw.co.uk

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