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HEALTH AND SAFETY LEGISLATION REVIEW:

REFLECTING ON A YEAR OF
SIGNIFICANT CHANGE

CONTENTS
P.2 Foreword, Gary Tyne
P.4 Introduction, Steffan Groch
P.6 Legislation update for April 2016 and beyond, Lauren Applebey
PPE Directive
P.11 New PPE regulations what you need to know, Jim Lythgow, Specsavers
P.12 Not all PPE is created equal, Neil Hewitt
CDM 2015
P.15 One year on - CDM 2015, Fiona Khosla
P.18 Moving forward on CDM 2015, John Carpenter
P.22 CDM and the client: Planning, pre-empting and being proactive,
Elliott Lockyer
P.25 The skills, knowledge and experience required by a Principal Designer,
Tim Sims
Sentencing guidelines
P.27 Sentencing guidelines: Definitive Council, Michael Caplan QC
P.29 The 2016 health and safety sentencing guidelines: how have they changed
for companies? Kizzy Augustin
P.32 The most dramatic change in health and safety enforcement since 1974,
Simon Joyston-Bechal
P.35 Sentencing guidelines: the legal view, Paul Verrico
P.38 How businesses can improve health and safety in the face of new
regulations, Mary Clarke
P.40 Sentencing guidelines: Will they make the workplace safer? Tim Hill
P.42 The new sentencing guidelines: is your board prepared?
Simon Joyston-Bechal

Health and Safety legislation review: Reflecting on a year of significant change

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FOREWORD
Gary
Tyne
Engineering manager
Europe,
ARMS Reliability

Organisations have a duty of care to ensure as far as is reasonably practicable


the health and safety of their employees and others by identifying hazards,
quantifying the associated risks and implementing control measures to prevent
their actuation of the hazards. To fulfil this duty, it is important for organisations to
conduct investigations when workplace accidents or incidents occur.
Root Cause Analysis is an important element in helping organisations satisfy
and sustain HSE regulatory standards and comply with legislative requirements.
Some of the various ways RCA enables an organisation to meet these standards
include:

Documentation of a thorough and formal investigation report;


Analysis of near-misses;
Achieve and maintain quality control standards;
Waste management; and
Supply control.

ARMS Reliability provides solutions that enable you to get the most out of your
RCA program. We have root cause analysis experts who can assist in facilitating
investigations as well as guiding you through RCA program development, and
reviewing and analysing the health of your program to ensure it is meeting your
business needs.
Over the last 20 years we have provided training and solutions to companies
across a wide range of industries that are designed to help companies better understand their incidents and identify effective solutions that prevent recurrence.
Gary Tyne is Engineering Manager Europe for ARMS Reliability and Certified
Apollo Root Cause Analysis methodology instructor.

Health and Safety legislation review: Reflecting on a year of significant change

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There has been a sea change in


sentencing as turnover and risk
now determine sentence, rather
than causation of actual harm

INTRODUCTION
Steffan
Groch
Head of regulatory,
DWF LLP and chair of
UK Health and Safety
Lawyers Association

2015 - 2016 has been a landmark year for health and safety. The defining
change is the recent introduction of the Definitive Sentencing Guidelines for
Health and Safety Offences, Corporate Manslaughter and Food Safety and
Hygiene Offences. As of 1 February 2016 there has been a sea change in
sentencing as turnover and risk now determine sentence, rather than causation of
actual harm.
In 2011, Professor Lftstedts seminal review of health and safety was welcomed
as heralding a new era of business friendly regulation. Some of the recent
changes appear to support this for example the sentencing guidelines will be
welcomed in some quarters for appearing to promote certainty. However, from
a legal perspective there are troubling indicators - the potential for draconian
enforcement has increased and with it the potential for damage to the relationship
between business and regulators.
The new guidelines provide for sentences based on turnover, harm risked and
the likelihood of harm but uncertainties remain for example, there are a vast
number of risks where the risk of harm could be death an uneven paving slab
for instance. Similarly the risk of harm could vary hugely - a defendant may say
that the absence of incidents indicates a low risk, a prosecutor might say the
converse that this simply illustrates the numbers potentially exposed to the risk!

Health and Safety legislation review: Reflecting on a year of significant change

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HSE must be seen to be


accountable or risk losing
the trust and confidence of
industry

As such, the guidelines create new certainties but generate additional


uncertainties; for business the enormous variation in potential sentences across
brackets and the significantly increased fines provided for are likely to mean that
limited peace of mind will be derived from their existence. Add to this the fact that
the Fee for Intervention regime has the potential to act as an incentive for HSE
inspectors to identify breaches, that no harm need have occurred in order for a
prosecution to be commenced, and that Magistrates no longer have a cap to the
sentences they can levy for health and safety offences and there is clearly the
potential for punitive enforcement.
HSEs new strategy and their approach to guidance for the new CDM Regulations
suggests a more hands-off approach in which industry leadership and guidance
from organisations such as the Insitute of Directors and IOSH will play a greater
role. While industry participation is welcome the move away from authoritative
and prescriptive guidance may make the task of advising business and of doing
business more difficult with the potential for conflicting approaches to create risk.
It is to be hoped that the promising signs of a more decentralised approach to
health and safety do not undermine the need for certainty in a principle-based
system such as ours. There are encouraging signs but there are also risks that
go hand in hand with this HSE must be seen to be accountable or risk losing
the trust and confidence of industry. Parliament has recognised at the highest
level, in the Deregulation Act, that regulation must recognise the desirability of
promoting economic growth, it remains to be seen whether these will be adopted
in practice.
Steffan Groch is head of regulatory, DWF LLP and chair of UK Health and Safety
Lawyers Association

Health and Safety legislation review: Reflecting on a year of significant change

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The guidelines have been described as the


most dramatic change to health and safety
legislation since the introduction of the
Health and Safety at Work etc. Act 1974

KEY LEGISLATION CHANGES


FOR APRIL 2016 AND BEYOND
Lauren
Applebey
Commissioning editor,
SHP

Looking back
2015 into the start of 2016 was a huge period for health and safety legislation
with the move to CDM 2015 and the changes to the sentencing guidelines for
health and safety offences, corporate manslaughter and food safety offences.
CDM 2015 saw a simplification of the construction regulations and the role of
CDMC replaced with principal designers. Over one year on and it is hard to say
exactly how the construction sector has taken to the new legislation, or if one of
the main aims (to reduce the amount of paperwork generated) has been met.
This may change when the first prosecution under CDM 2015 takes place.
The other significant change has been the introduction of the new sentencing
guidelines for health and safety offences, corporate manslaughter and food
safety offences which came into force on 1 February 2016 and apply to any case
sentenced in courts in England and Wales after that date.
Described as the most dramatic change to health and safety legislation since the
introduction of the Health and Safety at Work etc. Act 1974, the guidelines have
been introduced to give courts comprehensive guidance for these offences. They
introduce a structured nine step approach that the Court should follow, so as to
calculate sentences. This involves plugging culpability and harm factors into a
series of tables to reach recommended starting point fines, as well as ranges of
fines above and below the starting points.

Upcoming changes
March 2016

Trade Union Bill - (Report stage in House of Lords)


The proposed change to the law will introduce requirements, including:
In all ballots, at least 50% of members entitled to vote must do so. This is in
addition to the need for a simple majority of those votes cast to be in favour of
action (eg if 100 members are balloted, at least 50 must vote, of which 26 or
more must vote yes for a valid mandate).

Health and Safety legislation review: Reflecting on a year of significant change

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The governments
trade union bill
threatens the
basic right to
strike
Permitting the use of agency workers to cover striking staff.
A doubling of the minimum notice of strike action to two weeks.
A requirement for pickets to be supervised by a named official.
What the Government says:
The government is introducing fundamental reforms to modernise trade union law.
Reforms introduced by the Trade Union Bill will:
Ensure that strike action only ever takes place on the basis of clear and repr
sentative mandates, through new thresholds that strike ballots must meet.
Improve transparency and oversight of trade unions.
Require reasonable notice of strike action, and give employers greater chance
to prepare for industrial action and put in place contingency plans.
What the unions say:
The governments trade union bill threatens the basic right to strike.
Employers will be able to break strikes by bringing in agency workers to cover
for strikers. This could have big safety implications, lead to worse public
services, and will undermine the right to strike. The bill also proposes huge
restrictions on peaceful picketing and protests. Picket supervisors will have to
give their names to the police raising concerns about blacklisting and will
need to carry a letter of approval their union.
Other proposals in the bill including powers to restrict the ability of unions to
recruit and represent members in the public sector, restrictions on how unions
use their resources and lots more unnecessary red tape.
All of it taken together fundamentally undermines the rights for unions to
organise, negotiate and strike in defence of their members at work.
Proposed HSE Innovation Plan
The government, as part of its productivity plan, has asked all departments to
work with their regulators to publish an Innovation Plan by March 2016. The aim
of the plan is to find out whether the UK regulatory framework is set up to support
innovation and disruptive business models. Regulators have been asked to
consider three specific issues:
How legislation and enforcement frameworks could adapt to new technologies
and disruptive business models to encourage growth.
An assessment of how new technology is likely to shape the sectors being
regulated.
Actions for how regulators could better utilise new technologies to generate
efficiency savings and reduce burdens on business.

Health and Safety legislation review: Reflecting on a year of significant change

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The directive is being updated to reflect


current technologies and processes for
developing and bringing PPE to the market

Other legislation changes for March include:


The Offshore Installations (Safety Zones) Order 2016 (E/NI/S/W)

April 2016
Changes to PPE Regulations - transition period 2015 - 2018
The PPE directive was one of the first new approach directives, which came into
effect on 1 January 1993.
Now over 20 years old, the directive is being updated to reflect current
technologies and processes for developing and bringing PPE to the market.
The changes mean the old Directive will be re-implemented as a regulation in
2018 rather than remain in its current status, and the new regulation will not have
to be transposed into each Member States national law.
The main changes taking place include:
Moving hearing protection from Category 2 to Category 3 PPE
Changing life jackets from Category 2 to Category 3 PPE
Issuing a Declaration of Conformity with each PPE or at least a link to where it
can be obtained
Possibly covering domestic PPE (e.g. oven gloves)
Bringing the regulation in line with similar European requirements, such as the
Medical Devices Directive by suggesting a five-year certificate validity.
The British Standards Institute has a whitepaper detailing the history and the
proposed scope of the regulation, obligations and timelines.
National Minimum Wage Amendment Regulations 2016
The new National Living Wage is introduced as the new hourly rate for adults aged
25 and over. The new minimum wages from 1 April 2016 is:

For those aged 25 + 7.20ph


21-25 6.70ph
18-21 5.30ph
<18 3.87ph
Apprentices 3.30ph

Health and Safety legislation review: Reflecting on a year of significant change

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Organisations with a turnover of at least


36 million have to produce an annual
slavery and human trafficking statement

The Regulations will impact not only employees, but also employers. Regulation 2
amends the National Minimum Wage Act 1998 by increasing the financial penalty
payable by employers who underpay the National Minimum Wage from 100% to
200% of the underpayment and no doubt will have an effect on dismissals.
Veteran mesothelioma payments
On 16 December 2015, the MOD changed the rules to allow veterans diagnosed
with mesothelioma on or after that date to have the choice between a one-off, taxfree lump sum or regular, smaller payments. The department has now extended
the eligibility for the lump sums to those diagnosed before that date. Legislative
provisions will be made to enable lump sums to be paid from 11 April 2016.
Annual slavery and human trafficking statements
Under the Modern Slavery Act 2015 (Transparency in Supply Chains) Regulations
2015 there is a duty for organisations with a turnover of at least 36 million to
produce an annual slavery and human trafficking statement, which should set out
the steps that the employer has taken to ensure that no slavery exists within its
organisation or supply chains.
Transparency in Supply Chains Practical Guide offers guidance on how the
Government expects organisations to develop a credible and accurate statement
each year and sets out what must be included in these statements.
Those businesses whose financial year-end is between 29 October 2015 and 30
March 2016 will not be required to publish a statement for the current financial
year. Businesses with a year-end of 31 March 2016 will be the first businesses
required to publish a statement. Further information is available here.
Mesothelioma (Amendment) (No. 2) Bill 2015-16
This Bill is expected to have its second reading debate on Friday 22 April 2016.
Other changes for April include:
The Electromagnetic Compatibility Regulations: Draft 2016
Lifts Regulations: Draft 2016
The Damages for Bereavement (Variation of Sum) (Northern Ireland) Order
2016
Transfer of functions, fire and rescue services Order 2016
Employment rights, increase of limits Order 2016
Health and safety and nuclear, fees Regulations 2016
Modern slavery, duty to co-operate with Commissioner, Northern Ireland Act
2015, Northern Irish Public Authority, regulations 2016

Health and Safety legislation review: Reflecting on a year of significant change

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June
EU Referendum
The UK referendum on whether or not to remain in the EU takes place on 23 June
2016.
How will health and safety be affected by the outcome of the referendum?
Although the basis of the health and safety regime in the UK was established in
1974, it has been underpinned and extended by EU legislation. The main element
of the EU legislation is the Health and Safety Framework Directive (89/391/EEC)
which establishes broad-based obligations for employers to evaluate, avoid and
reduce workplace risks.
The 24 main Directives on health and safety cover many of the most important
sectors or risk factors that lead to death injury and ill-health in the workplace such
as chemical safety, carcinogens, musculoskeletal disorders, machinery safety
and personal protective equipment, which means that minimum standards exist
across Europe.
Other areas to consider when making your vote are:
Working time regulations
Maternity rights
Parental leave rights
Equality
Workers rights

July
Safety, health and welfare at work, general application Amendment,
regulations 2016 (Ireland)
Pressure equipment, safety Regulations: draft 2016
Further things to look out for in 2016:

ISO 45001 due for publication in October 2016


Health and Safety Executive (Powers) Bill 2015-16
Simple pressure vessels, safety regulations: draft 2016 date TBC
Smoke-free premises etc Wales Amendment, regulations: draft 2016 date TBC
Equipment and protective systems intended for use in potentially explosive
atmospheres Regulations: draft 2016 date TBC
Explosives Regulations 2014, amendment, regulations: draft 2016 date TBC
Electrical equipment, safety regulations: draft 2016 date TBC

Health and Safety legislation review: Reflecting on a year of significant change

10

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Safety managers procuring PPE need to be


aware of the changes, to ensure that their
providers will be able to meet the
new certification standards

NEW PPE REGULATIONS


WHAT YOU NEED TO KNOW
Jim
Lythgow
Director of
strategic alliances
at Specsavers
Corporate Eyecare

It is more than 20 years since the Personal


Protective Equipment (PPE) Directive
(89/686/EEC) was first adopted by the
European Council.
This piece of legislation relates to
occupational safety across Europe and was
implemented into UK law as the Personal
Protective Equipment (EC Directive)
Regulations 1992, coming into effect in
January 1993 and known as the Principal
Regulations.
Currently, it is the PPE Regulations 2002,
which implement the provisions of the PPE
Directive (89/686/EEC) in UK law.
For the purposes of this directive, PPE
means any device or appliance designed
for use in domestic, leisure and sports
activities, or for professional use. To be
worn or held by an individual for protection
against one or more health and safety
hazards in the execution of a specific
activity.
It lays down the conditions governing PPE
placed on the market and the basic safety
requirements which it must satisfy in order
to ensure the health, safety and protection
of the user - these should not be confused
with the Personal Protective Equipment
(PPE) at Work Regulations 1992, which
govern the employer on the suitability,
provision, maintenance, instruction and
use of PPE.
Having changed very little since
implementation, the PPE rules are now

Health and Safety legislation review: Reflecting on a year of significant change

in need of updating, to reflect the new


technologies that are now employed in
bringing PPE to market.
The Regulation was adopted on the 12th
February 2016 and published in the
Official Journal 20 days later. The twoyear transition period will now take place
for Member States with full enforcement
taking place around the end of 2018.
Existing PPE certificates, held by
manufacturers, will expire when the
regulation comes fully into force.
Safety managers procuring PPE need,
therefore, to be aware of the changes, to
ensure that their providers will be able to
meet the new certification standards.
While the existing PPE directive focuses
on manufacturers, the new regulation
will be effective over the whole supply
chain. Anyone involved in the supply and
distribution chain will, therefore, have to
take appropriate action to ensure the PPE
meets the required standards.
It is worth noting that the current PPE
legislation is a Directive. This is a legislative
act setting out objectives for EU countries
to achieve in their own way, by a certain
date. The new PPE legislation will be
reclassified as a PPE Regulation. This is
a binding legislative act, which must be
applied precisely across the EU by each
member country. Once decided upon and
announced by the European Commission
the rules will, therefore, be set in stone.

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Safety managers procuring PPE need to


be aware of the changes, to ensure that
their providers will be able to meet the new
certification standards

NOT ALL PPE IS CREATED EQUAL

Neil
Hewitt
Divisional Director
Quality and Technical
Standards at Arco

Despite Personal Protective Equipment


(PPE) having the required EC type approval
and CE mark, recent tests have indicated
that some of the products you assume to
be safe, may not actually be fit for purpose.
The seriousness of this issue was
recognised by the British Safety Industry
Federation (BSIF), when it wrote to its
members saying: This situation poses
an obvious risk to end users, and is a
timely reminder that only relying on CE
certification for certain product types is no
guarantee of ongoing quality assurance.
Furthermore, the BSIF is calling on all those
in the industry to make certain and ensure
their supply chain routes are fully aligned
to provide safe, legal and fit for purpose
PPE. As a leading UK safety company, with
representation on the BSIFs Federation
Council, we take these issues very
seriously.
In February this year, the new PPE
regulation was adopted by the European
Parliament, reclassifying some products,
introducing a five year limit on CE
certificates and clearly identifying the
obligations of all economic operators in the
supply chain.
Economic operators include manufacturers,
distributors and importers. It also clearly
defines that an importer or distributor who
markets a product in Europe under their
own name, brand or trademark becomes
liable for the full manufacturers obligations.
Although this will be a good step forward
for the industry, and the period for these
changes to be implemented could take
until 2018, we need to act now.

Health and Safety legislation review: Reflecting on a year of significant change

The United Kingdom is one of the key


regional markets for PPE in Western
Europe1, where the supply of high quality
and reliable products continues to be the
number one customer consideration when
purchasing PPE equipment2.
With the continued growth of the industry
and employers increasing concern for the
safety of their employees, the importance
of robust legislation to protect workers is of
paramount importance.
The document that currently underpins the
legislation is the PPE Directive 89/686/
EEC. The role of which is to ensure that
suppliers of protective equipment follow the
correct approval procedures before placing
the product on the market.
Category two and three items of PPE
must follow an EC type approval and
carry the CE mark to prove certification.
Whereas category one or minimal risk PPE
are self-certified and CE marked by the
manufacturer after they assess the product
against the essential health and safety
requirements of the PPE directive.
However, worrying data has emerged that
with the growth of the industry, comes the
increased risk of CE marked products that
do not conform, which could result in an
individual not being adequately protected
during an accident.
Inadequate PPE in the market
There appears to be procedural
weaknesses within the EC type approval
and CE marking process. These
weaknesses can allow a less reputable
manufacturer or importer to gain CE

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With the
growth
of the
industry
comes the
increased
risk of CE
marked
products
that do not
conform

certification for products they wish to


market and then subsequently make
changes to the product.
These changes could impact on the
products safety performance as further
testing may not be conducted as the CE
certificate is already available.
Although, manufacturers of category
three PPE are required to have a third
party monitoring process in place for the
actual product or a quality management
system, there is no third party production
monitoring process for category one or two
PPE. It is up to the manufacturer to ensure
the product continues to conform to the
standards.
Currently the UKs competent authorities
for market surveillance of PPE are under
increasing pressure due to reduced
budgets and this may be exploited by less
reputable manufacturers.
Toe cap failures
An example of these failures came to light
when Arco performed a number of tests on
safety footwear toecaps, products at the
front line of safety across a wide range of
industries.
Traditionally toe caps were made from
steel to ensure toes were not crushed in
the event of an accident, but non-metallic
materials have entered the marketplace,
offering lightweight design and the ability
to minimise disruption in security areas
and specialist manufacturer where metal
detection is required.
Some of the non-metallic toe caps in terms
of construction are made from composite
glass fibre and others are injection
moulded thermoplastics.

Health and Safety legislation review: Reflecting on a year of significant change

Arco carried out product assurance


compression testing, in our UKAS and
SATRA independently accredited lab, on
own brand footwear along with a sample of
footwear currently available on the market.
During the testing, it became apparent
that the safety footwear using some
injection moulded plastic toe caps in their
construction performed significantly worse
than the fibreglass composite toe caps
during compression testing.
What does this mean for the wearer of the
boots? If the foot is compressed, these
substandard toes caps would not protect
the wearer as intended, resultant injuries
being broken bones or even amputation.
The use of a thermoplastic toe caps
in safety footwear construction is not
immediately evident and purchasers are
relying on the CE mark being accurate.
This worrying issue has compelled Arco to
assure our customers that we do not allow
the use of sub-standard thermoplastic toe
caps in the construction of our own brand
products. We have also highlighted the
issue to all proprietary footwear brands in
the Arco catalogue and have requested
they confirm the type of toe cap used within
their footwear.
Safeguarding as an industry
Arco takes the issue of safety very seriously
and have invested in developing our own
Product Assurance Laboratory for the
testing of PPE and ensure we comply
with the obligations laid down by the EU
Parliament.
We ensure continued conformity via an
internal testing program within our own
laboratory and where necessary third party
accredited testing laboratories.

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Identifying true product compliance is


difficult for the user. The responsibility
falls to the manufacturer, who may not
have the resources in place to ensure
regular testing

We are also members of the BSIF


Registered Safety Suppliers Scheme
(RSSS). Companies displaying the
schemes logo have signed a binding
declaration that the safety equipment they
offer meets the appropriate standards, fully
complies with the PPE regulations and is
appropriately CE marked.

products are being manufactured as


they were originally certified.
Always buy from a trusted source.

Keeping workers safe no room for


doubt
Identifying true product compliance is
difficult for the user. The responsibility falls
to the manufacturer, who may not have
the resources in place to ensure regular
testing. Anyone who has concerns over
the safety of the equipment they are being
supplied should follow these steps:

Manufacturers, importers and distributors


need to have the necessary measures
in place to ensure that the products
they supply are capable of doing the job
intended for. Purchasers need to remain
vigilant to safeguard your workers.

Ask your suppliers for a declaration of


conformity that shows original
certification for the PPE you are
purchasing.
Ask your suppliers to define their
process for sample testing to ensure
safety products continue to meet the
required standards.
Ensure your suppliers are members
of the BSIF Registered Safety Supplier
Scheme.
Ask your suppliers to define their
process of quality assurance at the
manufacturing facility to ensure the

Health and Safety legislation review: Reflecting on a year of significant change

The UK has a strong health and safety


record, of which we are very proud. As an
industry, we must work together to raise
the standards of compliance in the UK.

References:
1 Market Research Report Frost
& Sullivan, Snap shot of UK & Ireland
personal Protective Equipment
(December 2015)
2 Arco CVP research, published January
2016

Neil Hewitt is Divisional Director Quality and


Technical Standards at Arco. Arco is the
UKs leading safety company. It distributes
quality products and training and provides
expert advice, helping to shape the safety
world and make work a safer place. For
more information, visit www.arco.co.uk.

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ONE YEAR ON CDM 2015


The revised CDM regulations came into force in April last year. One year in, Fiona
Khosla, senior associate director, Capita Property & Infrastructure, explains what
the main changes have been and how they have bedded in

Fiona
Khosla
Senior associate
director, Capita
Property &
Infrastructure

In April 2015, a revision to the 2007


Construction Design and Management
(CDM) Regulations was introduced. These
regulations aim to improve health, safety
and welfare and provide information on the
responsibilities of key stakeholders when
working on construction projects.
Now that we are almost a year into working
with the new regulations, the key question
to consider is: has there been a significant
change from CDM 2007 and are clients
complying with the new regulations?
The core requirements set out in the new
regulations remain essentially unchanged
from those in CDM 2007. The majority
of changes relate to the management of
projects determined by the revised roles

Health and Safety legislation review: Reflecting on a year of significant change

and duties of the client, principal designer,


principal contractor, designers and
contractors. These changes have altered
the pre-construction planning phase of
projects, before site work commences.
The latest revision to the CDM regulations
resulted from:
A perceived over-interpretation of the
regulations leading to the process being
viewed as a tick-box compliance
exercise;
A belief by some clients that the CDM
coordinator role in the pre-construction
phase was often a bureaucratic add-on
with them not always embedded into
projects, resulting in additional costs
with little perceived value added;

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The persistence of unacceptable health


and safety standards, particularly on
smaller sites where there was less
chance of HSE intervention.
So what have the main changes
been?
There has been structural simplification
of the regulations to make them easier for
stakeholders to understand.
For example, the regulations now require
two main duty holders for the preconstruction phase, but there are still areas
where the industry is finding it difficult to
establish what is required to comply and
how compliance is being monitored.
The traditional Approved Code of Practice
(ACoP) has been replaced with more
targeted guidance documents divided for
each stakeholder. These guides have been
met with mixed reviews from the industry
with concerns that duty holders will only
be knowledgeable on the guide produced
specifically for them and not the wider
responsibilities of the project team.
There is a perception that this approach
results in piecemeal guidance rather than
a comprehensive guide of all project team
responsibilities and their interactions with
each other.
There has certainly been a lot of debate
surrounding the type of work that requires
construction phase plans. Any project
that is classed as construction work now
needs to have a construction phase plan
regardless of the size and duration of the

Health and Safety legislation review: Reflecting on a year of significant change

project. Smaller projects already provide


risk assessments under the Management
of Health and Safety at Work Regulations.
The concern here is that the additional
construction phase plan will impact on
costs and administrative work without
providing clarity on the health and safety
benefits it will generate. There is also
uncertainty over how this is going to be
reviewed from a compliance perspective.
The role of CDM coordinator has now
been replaced with a new role of principal
designer. CDM coordinators were aware
of the need to coordinate design risk
management before but the principal
designer ensures that health and safety
considerations are made at the concept
design stage and onwards throughout the
life of the design.
Those who are undertaking the principal
designer role will no longer need
to demonstrate the skills set out in
competence tables in the 2007 CDM
Regulations that the CDM coordinator had
to meet.
A principal designer will instead have to
demonstrate to the client that they possess
the correct skills, knowledge, training and
experience for that specific project. This
requirement to demonstrate suitability on
a project by project basis is better suited
to the industry. It ensures that client
specification is delivered to the highest
standard, rather than the blanket approach
to skills and knowledge the CDM 2007
Regulations enforced.

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The role of CDM coordinator has now


been replaced with a new role of principal
designer'

Another change in the new regulations


has seen the removal of the exemption
for domestic clients to comply with CDM
Regulations removed.
This has meant that the new CDM duties
have been passed to the lead contractor
on small scale projects. It is hard to see
if this has made any impact yet, as many
domestic clients or small scale contractors
will not be aware of the regulations. It is
also hard to see how this will be monitored
for compliance in the case of smaller
projects.
The final key change in the new CDM
Regulations is the change in the threshold
for appointment of principal contractors
and principal designers. Projects now
require these duty holders when there is
more than one contractor on site. The HSE
suggest that this will capture close to an
additional one million projects a year, but
that the requirements will be proportionate
and little more work will be necessary.

and employ more than 20 workers working


simultaneously at any point, or exceed 500
working days.
The HSE has made it clear that the client
holds the key to the changes in the CDM
Regulations. However, the whole industry
needs to work together to embrace the
regulations and comply to ensure health
and safety on construction projects is
adequately planned for.
It is still early days yet in terms of
determining whether the updated
regulations are more effective in achieving
this goal and it will be interesting to see
how the industry has changed after
another year working with CDM 2015.

Some concern has been expressed about


what constitutes more than one contractor,
and how it is possible to know how many
contractors may be needed.

Fiona is a Director with responsibility for


delivering Capita Symonds Health and
Safety Professional services in a range
of industries providing advice, guidance
and training to clients throughout the UK.
This includes undertaking assessment of
health and safety requirements in a range
of industries, development and delivery
of health and safety advice, management
systems, Access Consultancy, inspections,
auditing and risk assessments.

This means that there are now two key


project thresholds. One to introduce
coordination right at the start of the
design phase and one to notify the HSE
about the project. This notification must
be done where the construction work is
likely to last longer than 30 working days

Fiona is also involved in the preparation


and delivery of health and safety training,
provision of CDM-related services,
including CDMC, assessment of both office
and site health and safety standards,
auditing compliance with health and safety
and CDM responsibilities.

Health and Safety legislation review: Reflecting on a year of significant change

17

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MOVING FORWARD ON CDM 2015


One year on from CDM 2015s introduction where concerns were raised concern
over its application, John Carpenter offers a timely update and some pointers for
improvement.

John
Carpenter
Consultant

In a previous article for SHP, I highlighted


a number of difficulties that construction
designers face when applying the
requirement, as it then stood, to eliminate
hazards and reduce risk, so far as is
reasonably practicable (SFARP).1
These difficulties were significant
showstoppers and arose from too little
thought being given to the application
of this requirement to designers in the
construction context.
The revision of the Construction (Design
and Management) Regulations, published
in January 2015 (CDM 2015), and now
in force HSEs third attempt to legislate
in this area, and its fourth attempt to write
guidance was a golden opportunity to

Health and Safety legislation review: Reflecting on a year of significant change

tackle these major impediments.


Whereas other recommendations of
the influential Lfstedt report2 have
been meticulously followed through, the
recognition that further practical guidance
was required with regard to SFARP has
been ignored.
Construction industry
UK construction can be world-class,
for both large and small-scale projects.
However, what we are seeing is a major
gap opening up between those projects
with integrated teams, knowledgeable
clients, and a culture which demands ever
higher standards, and those which, often
through no fault of their own, operate in a
somewhat dysfunctional manner.

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UK construction can be world-class, for


both large and small-scale projects
There is no such thing as a unified
construction industry and as was also
pointed out previously, many of the
incidents of ill health and accidents occur
in the latter, generally smaller project
category.
The lack of guidance mentioned at
the outset of this article affects every
designer, but for those in the top league
they generally pass muster by virtue
of the strong presence of contractor,
knowledgeable client demands and project
culture. However, for most of the industry,
little has changed: it lacks leadership and
facility.
The late Lord Bingham, considered by
many as one of the 20th centurys finest
judges, has said: [An] important function
of the criminal law is to discourage criminal
behaviour, and we cannot be discouraged
if we do not know, and cannot reasonably
discover, what it is that we should not do.3
This is quoted in the negative, to suit
Binghams script. However, the message
is clear: clarity is required for the proper
rule of law. There is no clarity, even after
20 years of CDM, for the construction
designer. This has been significantly
influenced by HSEs historical stance of
denying that a problem exists, but declining
to discuss it in any meaningful manner.
When one considers the make-up of the
industry this necessary clarity is even more
important. I suggest the hypothetical three
person practice in Bury St Edmunds as
representative of the typical construction
designer and would ask the reader to
consider the following points against this
background.

Health and Safety legislation review: Reflecting on a year of significant change

At a recent meeting, HSE expressed the


view that designers should concentrate
on the (undefined) big picture. It is the
antithesis of what Bingham was arguing
for. One might wonder how that squares
with the architects prosecuted over poor
access to a plant room4, or over the use of
large blocks.5 Both relate to detail. Neither
the regulation itself (regulation 9) nor HSE
guidance mentions or infers such a big
picture approach. Most occupational
safety and health risk occurs in the detail.
CDM 2015
Since CDM 2007 a great deal of work
has gone into explaining the relevance
and difference between hazard and
risk. Guidance, books, training courses,
company procedures have all been written
around the use of hazard and risk and the
benefits of considering them separately.6
The acronym ERIC, used in the CDM2007
guidance, and endorsed by HSE, has been
used successfully to provide a practical tool
for qualitative risk management. But no
longer; without any discussion, or mention
within the CDM consultation document,
hazards are no more. The industry will no
doubt deal with this, but it was an unhelpful
and unnecessary move, furthering
difficulties in the process of encouraging
designers to play a bigger role in risk
management.
The new guidance, L1537, does little to
help the designer understand the process
of eliminating risk or, where not reasonably
practicable, to try to reduce it. Indeed,
two examples quoted, that of moving
plant off the roof to ground level (para
86a) and reducing the size of paving flags
(para 87a), point designers in a direction
and then abandon them, providing no

19

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Decisions are made by the discipline of


owning the risk for reasons of contract,
liability and competence.
explanation as to how, within the context
of real project pressures, the legal
requirement is achieved with confidence.
Further guidance that I received from HSE
this year illustrates the problem industry
faces.
In answer to the need for further
explanation (specifically, in the case
when a risk-mitigated solution costs more
than an unmitigated solution, asking at
what point does the extra cost become
disproportionate, and hence need not be
adopted), HSE has stated: Obviously, the
tipping point will depend on the specific
circumstances involved with the design e.g.
the size and complexity of the project, the
risks involved etc. The level of effort on the
part of the designer would also depend on
the individual circumstances of the project.
HSE is not persuaded that this [further]
guidance is necessary and may be
more limiting than helpful to clients and
designers as it would seek to define,
whereas HSE believe that a pragmatic
approach is more helpful where all
the variables of any given situation are
considered by the professionals and clients
in determining what is a proportionate
response to mitigation or control of risk.8
One has to ask in what way does the
size of a project affect the degree of
acceptable risk? What are these individual
circumstances? What are the variables?
How does the designer identify them?
Also, supposing it is possible to do all that
has been suggested, what does one do
with them to determine a proportionate
response?
This mantra supposes that the design
team will collectively gather to consider

Health and Safety legislation review: Reflecting on a year of significant change

the variables for each risk encountered


(including, it implies, contractor-appointed
designers along with temporary works
designers with whom there is no
contractual link with the client).
However, this is an impractical solution,
which indicates a lack of practical
understanding of contract, liability, PI
cover, time and all the other real project
pressures. Furthermore, it proposes that
the client becomes involved in deciding
what satisfies the law in a highly technical
situation.
How does Mr Jones (a busy greengrocer
that wishes to extend his premises), as
client, handle a discussion on whether or
not to use smaller paving slabs, from a
manual handling perspective, or whether
to split a steel beam into back to back
channels, to reduce weight, when both
examples involve additional cost over the
do-nothing situation? Such a client will
expect a compliant solution derived by
those whom he is paying for construction
expertise.
There is a worrying trend here in thinking
that a team discussion is the way to
resolve these issues. While we all accept
the many shortcomings in team behaviour
(lack of communication, co-operation
and co-ordination), one thing that teams
do not, and cannot do is make collective
risk-based decisions. Decisions are made
by the discipline owning the risk (albeit
assisted by others where their disciplines
impinge) for reasons of contract, liability,
competence and clarity of responsibility.
Moving forward
There is no available solution to the
current legal requirement embedded

20

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in regulation 9. Without the control and


sign-posting necessary for goal-setting
legislation to work effectively the regulation
is unworkable. The formal guidance fails to
tackle this; recent advice from HSE adds
further confusion. Consequently, we need
an alternative approach at least in the
short-term.
The proposal, already put before HSE,
is to identify clearly defined sectors e.g.
domestic basements, new housing,
refurbishment, known to be of legitimate
concern to HSE and others.
To then canvas the users (clients
and others), principal designers and
constructors (primarily sub-contractors
as it is they who suffer from any design
shortcoming) in order to determine any
key concerns they have regarding the risk
management performance and information
provision from designers.
Taking the most common concerns in each
group, guidance can then be written to
illustrate the necessary actions that are
to be taken by those involved in design.
I have successfully canvassed parties in
the past to determine any concerns, albeit
in relation to general steelwork design
issues.9
Two examples have already been written.
These were not the result of canvassing
but instead were chosen to expand and
complete the examples given in L153,
quoted above, given their shortcomings.
These are both published on the ICE
website.10 Such guidance coming from an
authoritative source, such as ICE, should
be persuasive; more so if endorsed by
HSE.

The previous article outlined the


background obstacles. In this second part,
an analysis of CDM 2015, and subsequent
statements from HSE, indicate that these
deficiencies have been ignored or poorly
dealt with.
It is a legitimate comment, after some 20
years, to argue that with authority comes
responsibility: a responsibility to provide
clarity for the rule of law. Industry has
offered to assist and has started the
process by producing the two guidance
sheets cited above. These do not solve the
underlying problem but are a pragmatic
and directly applicable step forward.
Industry needs to speak. HSE needs to act.
John Carpenter is a consultant
References
1. shponline
2. The construction designers dilemma
(Part 1) at Reclaiming health and safety
for all: An independent review of health
and safety legislation, Professor Ragnar
E Lfstedt November 2011
3. The rule of law, Bingham T, 2011, p37.
4. Oxford Architects
5. Neil Vesma Architects
6. A simple approach to the management
of risk on civil and structural engineering
projects. Viewpoint in The Structural
Engineer 7 April 2010 p20.
7. Managing health and safety in
construction L153
8. Communication from HSE to the author
15th May 2015.
9. Designing for safe construction
Viewpoint in The Structural Engineer 16
May 2006 pp16-17.
10. See ICE.org

Closing thoughts
The extrapolation of traditional section
3 obligations, through the specificity of
CDM, without adequate consideration and
guidance, continues to create unnecessary
difficulties.

Health and Safety legislation review: Reflecting on a year of significant change

21

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This change in focus displays a knowledge


improvement from studying reactive
topics to a focus on preventative subjects

CDM AND THE CLIENT:


PLANNING, PRE-EMPTING
AND BEING PROACTIVE
Elliott Lockyer looks at the changing role of the client within CDM projects, and the
importance of project planning and managing safety from the outset, not reacting
to it once the worst happens.
In his article, Elliott looks at research, which shows a link between successful
construction management and a clients understanding of the regulations.

Elliott
Lockyer
Construction safety
advisor for Idom
Merebrook.

Construction safety issues


According to Booty (2009, P61) the key
health and safety issues in respect of
construction activities are as a result of:
failure to assess risks adequately;
failure to recruit and retain skilled
workers;
failure to ensure proper site
management;
poor health and safety systems;
inadequate resourcing of site
management;
poor leadership;
inappropriate equipment; and
failure to plan work properly.
The list compiled by Booty is unranked in
importance but the author suggests that
project planning has a significant ability
to influence safety. The CDM regulations
were introduced to place duties on those
involved in a project to plan for safety and
welfare at all stages of the construction
process from the planning stages to end
of life building demolition. New legislation
has involved a shift in the importance
of client duties with the greatest
responsibility now falling on the client who
has overall responsibility for the successful

Health and Safety legislation review: Reflecting on a year of significant change

management of the project (CITB, 2015).


A study by Zhou et al (2015, P339)
demonstrates a trend the author
experienced, with regard to the focus of
construction. Zhou et al studied over 400
academic construction safety articles
and found few to be focused on the early
project phases.
The study found that prior to 1995,
research topics focused mainly on accident
statistics, accident cost, safety regulation
and safety measures.
After 1995, Zhou et al observed that
established research topics like accident
statistics and safety measures were still
being studied, as well as an increasing
focus on proactive management of
accidents, safety monitoring, near miss
management and safety knowledge.
Proactive safety management
This change in focus displays a knowledge
improvement from studying reactive topics
to a focus on preventative subjects. This
study confirms, along with the shift from the
government in the latest CDM regulations

22

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A conscientious client who believes in the


ethical principles of health and safety will
undoubtedly produce the highest quality
pre-construction information without being
forced to

that contractors and designers are now


expected to be fully aware of their duties
and the focus is now on planning and the
duties of the clients. The lack of academic
writing and publications on the role of
the client and their duties is reflected in
the Zhou et al work leaving a gap in the
knowledge and the author suggests, a
large potential for construction planning
research to be focused upon this.
In their research Baxendale and Jones
say: Once a client has taken a decision to
commission a project the initiative lies with
the client to apply the CDM regulations
(2000, P37). When researching examples
of litigation involving the failure of a client
to fulfil their duties the general trend shows
that a failure to properly plan is the cause
as: the duties of the client are confined
to a preparatory phase of the construction
project (Howes and Baldry, 2006, P9).
This clearly shows that if a client
familiarises themselves with the regulations
and makes every effort to plan for safety
and the competence of other duty holders
they have a far greater chance of being
successful in construction management.
Multiple authors on the subject have
commented upon the link between
success and a clients understanding of
the regulations.

Health and Safety legislation review: Reflecting on a year of significant change

The importance of the client


Clients have little ability to influence a
project when the construction phase
has begun, so making the most of their
opportunity at the start of a project is
paramount. A conscientious client who
believes in the ethical principles of health
and safety, corporate social responsibility,
acting in good faith, developing
partnerships etc will undoubtedly produce
the highest quality pre-construction
information without being forced to. As
noted, any documents produced under
CDM are to aid project planning success
not just documents for documents sake.
Cases of client failures leading to
prosecution are available online. It is my
opinion that enforcing the production of
pre-construction information could have a
very significant impact on client education
as it would require research and therefore
act as a self-taught exercise in construction
safety and the regulations themselves.
The concept of pre-construction
information has been featured in
construction safety management texts for
decades but has been overlooked and now
with new regulations placing greater duties
on the client it is time to reinforce its value
and the expectations of the HSE to see
excellent examples for all projects.

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Access to information and guidance


The regulations have featured preconstruction information for some time but
I had to actively seek the information on
what it requires leaving it out of reach to
novice clients.
The 2007 ACOP is hundreds of pages
and probably quite onerous for a novice,
when in fact their duties could be compiled
separately into a brief guide containing
worked examples. A guide of this type is
available for the 2015 regulations but only
states that pre-construction information
must be provided with no details on what
this includes (INDG411, A short guide for
construction clients on the Construction
(Design and Management) Regulations
2015). This needs to be updated with
information on what pre-construction
information should include. Clearly, less
information available to the client is in fact
a backwards step in this respect.
Further research could be undertaken
in this field to determine what else, if
anything, would contribute to construction
safety in terms of pre-construction
information and client involvement.

Health and Safety legislation review: Reflecting on a year of significant change

References
Booty, F. (2009). Facilities management.
Oxford: Butterworth-Heinemann. P1982.
Baxendale, T. & Jones, O. (2000).
Construction design and management
regulations in practise progress on
implementation. International Journal of
Project Management. 18 (99), 33-40.
Construction Industry Training Board.
(2015). New health and safety duties
for clients. Last accessed 25/02/2015.
Howes, V. & Baldry, D. (2006). The
duties of construction clients under
health and safety legislation and their
impact on the minimisation of risk and
the avoidance of failure. Construction
Law. 22 (8), P499-514.
Zhou, Z. & Goh, Y & Li, Q. (2015).
Overview and analysis of safety
management studies in construction.
Safety Science. 72, 337-350.

Elliott Lockyer is construction safety advisor


for Idom Merebrook.

24

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THE SKILLS, KNOWLEDGE AND


EXPERIENCE REQUIRED BY A
PRINCIPAL DESIGNER
Tim Sims
Associate director
at Turner and
Townsend

Under CDM 2007, duty-holders were


obliged to make appointments to key roles
on construction projects according to
certain competence criteria.
Following adverse comments during the
consultation on CDM 2015, these criteria
were dropped in the new Regulations in
favour of a requirement for sufficient skills,
knowledge and experience on the part
of those carrying out the role of principal
designers and contractors.
The client must define within their
procurement process, and prior to making
any appointment, that the principal
designer be it an individual or an
organisation has the required skills,
knowledge and experience necessary to
undertake the role. And the individual or
organisation in question must also be able
to demonstrate same.

Health and Safety legislation review: Reflecting on a year of significant change

However, there is no specific guidance to


help the duty-holder in determining whether
or not their potential appointees fulfil
these requirements, and one question in
particular that is being asked is: what is the
difference between skills, knowledge and
experience and competence?
The guidance to CDM 2015 (L153) refers
to the following:
Self-assessment PAS91 currently
offers a framework of questions to
determine the relevant skills, knowledge
and experience. Although this has
yet to be updated to reflect CDM 2015
requirements, it is a good basis on
which to provide evidence of compliance
with the main duties of the principal
designer, which are to:
Assist the client in identifying,
obtaining and collating the pre
construction information;
Provide pre-construction information

25

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Core competencies for the role should be


considered both in the client assessment
and by the PD themselves
to designers, the principal contractor,
and contractors;
Ensure coordination and cooperation
during the pre-construction phase;
Ensure all designers comply with their
duties;
Liaise during the construction phase;
and
Prepare the health and safety file.
Independent (third-party) assessors
some members of Safety Schemes
in Procurement (SSIP) have updated
their assessments to reflect the new
role of principal designer. Principal
designers are now assessed on their
main duties at both an organisational
and individual level, and their
qualifications and experience are
checked in much the same way as
they were under the previous system of
competence assessment.
Core competencies for the role should be
considered both in the client assessment
and by the principal designer themselves,
to demonstrate they have the relevant
skills, knowledge and experience. To prove
it is capable of carrying out the principal
designer role, an organisation must be able
to demonstrate:
Ability to develop a principal designer
team and understand and address gaps
in competence;
Effective and proactive stakeholder
engagement, team-building and teamworking skills;
Proactive knowledge-sharing and
continuous improvement;
Access to suitable organisational
expertise in health and safety and
engineering;
Commitment to training and lifelong
learning;
Management team has had health and
safety training to understand CDM
2015; and

Health and Safety legislation review: Reflecting on a year of significant change

Processes for ensuring health and


safety is planned and managed
throughout the project.
An individual must have technical
knowledge of the construction industry
relevant to the project in the following
domains:
Engineering and design:
Technical and relevant sector
knowledge;
Ability to undertake multidisciplinary
design reviews, including large,
complex projects, where applicable;
Chartered membership of a relevant
institution;
Health and safety:
An understanding of how health and
safety is managed through the design
process, as well as whole-life health
and safety through design and
construction;
Demonstrate knowledge and
experience of construction health and
safety risks;
Membership of a relevant institution.
CDM:
Good working knowledge and
experience of CDM Regulations;
Demonstrate management and
coordination skills required of a
principal designer;
Confidence to challenge designs.
Given the wide application of the CDM
Regulations 2015, many more projects now
require a principal designer, and the role is
being undertaken by new parties, including
clients, architects, engineers, project
managers and principal contractors.

Tim Sims is associate director at Turner


and Townsend

26

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We expect that in some cases offenders


will receive higher penalties, particularly
large organisations that are convicted of
serious offences

SENTENCING COUNCIL:
DEFINITIVE GUIDELINES
Michael Caplan QC explains the definitive sentencing guidelines as agreed by the
sentencing council.

Michael
Caplan
Associate director
at Turner and
Townsend

Following a consultation last year, the


Sentencing Council has now published its
definitive guidelines covering health and
safety, corporate manslaughter and food
safety and hygiene offences.
The publication of the guidelines means
that for the first time, courts in England and
Wales will have comprehensive sentencing
guidelines covering the most commonly
sentenced health and safety offences and
food safety offences.
Up until now, there was only a definitive
guideline produced by our predecessor
the Sentencing Guidelines Council for
corporate manslaughter and health and
safety offences causing death, and very
limited guidance for sentencers for other
health and safety and food safety offences.
These can be complex and serious
offences that do not come before the
courts as frequently as many other criminal
offences. We found that given the lack of
familiarity with some of these offences,
sentencers wanted more guidance. Our
research also showed that this lack
of familiarity had, at times, resulted in
fines that were not proportionate to the
means of offenders and did not reflect the
seriousness of offences.
We want fines for these offences to be fair
and proportionate to the seriousness of
the offence and the means of the offender.
In order to achieve this, the guidelines set

Health and Safety legislation review: Reflecting on a year of significant change

out sentencing ranges that reflect the very


different levels of risk of harm that can
result from these offences.
In introducing greater proportionality to
sentencing, we expect that in some cases,
offenders will receive higher penalties,
particularly large organisations that are
convicted of serious offences.
While corporate manslaughter obviously
always involves at least one death, the
seriousness of health and safety offences
is very varied. One incident could involve
people being put at the risk of minor harm
even though no one was actually hurt,
while another incident could risk or result
in multiple fatalities. Food offences also
vary hugely. Poor hygiene or preparation
standards in a restaurant kitchen could put
customers at risk of illness or could lead to
a fatal outbreak of food poisoning.
As well as considering the risk of harm
caused, the sentencing ranges also
consider offender culpability. An offender
could be guilty of minor failings in otherwise
proper procedures, or could be involved in
deliberately dangerous work practices.
It is important to remember that these
sentences apply to criminal offences where
the culpability of an offender has been
demonstrated. In circumstances where
an employer took all proper measures to
prevent an incident but one still occurred, it
is unlikely a prosecution would be brought.

27

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Where there has


been a conviction,
the harm
assessment within
the guideline limits
the assessment of actual harm caused to
harm, which was reasonably foreseeable.
The guidelines also require the court
to take into account the size of the
organisation when determining the
sentence. We have chosen to use turnover
to identify the starting point of the fine
since this is a clear financial indicator that
can be readily identified by sentencers in
accounts or annual reports.
However, we are clear that turnover is
used only to determine the starting point
of the fine. The guidelines then require an
overall assessment of the organisations
financial circumstances, taking into
account any additional relevant financial
information, such as the profit margin of
the organisation, the potential impact on
employees, or potential impact on the
organisations ability to improve conditions
or make restitution to victims. This means
sentences will always be tailored to the
offenders specific circumstances, and may
move up or down or outside the ranges
entirely as a result of these additional
mandatory steps.
The previous guideline produced by the
Sentencing Guidelines Council stated that
for an offence of corporate manslaughter,
the appropriate fine will seldom be less
than 500,000 and may be measured in
millions of pounds. However, since by law
the court is required to take into account
the means of the offender it cannot set
fines that an offender simply cannot pay.
The new guidelines therefore provide a
more nuanced and proportionate structure
than that set out under the previous
guidelines.

Health and Safety legislation review: Reflecting on a year of significant change

As well as punishment, the guidelines


provide for remedial orders to be made
by the court in addition to or instead of
punishment in cases where they may
be appropriate, although addressing
remedial action with offenders remains
the responsibility of the Health and
Safety Executive rather than the courts.
The guidelines also include a range of
mitigating factors, which allow for voluntary
positive action to remedy a failure on
the part of offenders to be reflected in
sentences.
The Sentencing Council held events during
the consultation period with health and
safety legal practitioners and those in
construction, insurance, utilities, industry,
retail, food manufacture, hospitality, and
leisure, as well as the Food Standards
Agency and enforcement practitioners from
local authorities to get as many insights as
possible. We received over 100 responses.
The Council carefully considered all of
the responses and we have published a
comprehensive consultation response
document which is available on our
website. While the general approach
outlined in the draft guidelines has been
maintained, we have made a number of
amendments to improve their efficacy.
The guidelines came into force in courts on
1 February 2016 and will apply to any case
sentenced on or after that date.
We hope they will provide valuable
guidance in sentencing what are
often complex cases and will improve
consistency in the approach to sentencing
these offences.

Michael Caplan QC is a member of the


Sentencing Council

28

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There is a stronger focus on the risk of a


custodial sentence for those found guilty
of serious breaches

Kizzy
Augustin
Senior associate at
Pinsent Masons LLP

THE 2016 HEALTH AND SAFETY


SENTENCING GUIDELINES:
HOW HAVE THINGS CHANGED
FOR COMPANIES?
Kizzy Augustin, senior associate at Pinsent Masons LLP, explains how the
sentencing guidelines for health and safety offences are having an impact, just
two months after they were introduced.
On 1 February 2016, the new sentencing
guidelines for health and safety offences
came into force. They direct the courts
to consider the sentencing of offending
organisations by way of a step-by-step
approach, primarily examining culpability,
the seriousness of harm risked and the
likelihood of harm, which are divided into
a number of different levels to reflect the
scale within each category.
In light of a number of preceding Court of
Appeal judgments expressing the same
view, the guidelines then require an
assessment of turnover in order to set a
starting point for a fine that is intended
to bring the message home to the
directors and shareholders of offending
organisations, as stated by the Judge in
the environmental prosecution of Thames
Water.
The majority of the other sentencing steps
relate to the consideration of increasing
or decreasing the level of fine according
to a range of factors. There are similar
guidelines for the sentencing of individuals
for health and safety offences, with a
stronger focus on the risk of a custodial
sentence for those found guilty of serious
breaches.

Health and Safety legislation review: Reflecting on a year of significant change

Ever since the Sentencing Council


proposed these new guidelines, the health
and safety industry has anticipated a
revolutionary impact on the levels of fines
compared to those that have historically
been handed down for simple health and
safety breaches committed by corporate
entities. Although we are still in a budding
phase, we can begin to analyse the
influence the guidelines have had on the
courts to date and we can also consider
the extent to which they may affect future
sentencing trends.
The Guidelines in Practice
February 2016 heralded a new era in
sentencing for health and safety offences.
On the 8th of the month, ConocoPhillips
(UK) Limited became the first very large
organisation to be convicted and sentenced
under the new regime, although the hearing
actually commenced prior to the date on
which the new guidelines came into force.
The company, which has a turnover of 4.8
billion, pleaded guilty to three breaches of
relevant health and safety regulations for a
series of uncontrolled and unexpected gas
releases at one of its offshore installations.
Although nobody was actually injured
as a result of the breaches, due to a
communication breakdown workers were

29

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It is quite likely that more organisations


will now fall into higher categories of
offence seriousness by virtue of the
guidelines focus on the risk of harm'
sent to investigate the incident while there
was still gas present. When sentencing, the
Judge commented that the risk of death of
serious injury would have been extremely
high had there been a gas ignition. In
applying the guidelines, this may have
been regarded as a Harm Category 1 case
due to the seriousness of the harm risked
and the high likelihood of harm.

imposed by the court was 3 million


equating to 1 million for each offence.

Although the company had procedures


and safeguards in place, the Judge noted
a failure to properly identify and control
risks. The level of culpability in this case
may have been classed as Medium as
systems were in place but they were not
sufficiently adhered to or implemented.

Four different Crown Courts imposed fines


of 1m or more against large companies
for health and safety breaches (all of which
followed early guilty pleas)

If our analysis of the guidelines reflects


the sentencing Judges own interpretation
then the starting point for the fine would be
1.3 million, with a range of 800,000 to
3.2 million to accommodate mitigating or
aggravating features.
In mitigation, the company pointed to its
high level of cooperation with the HSE
as well as significant investment in new
systems designed to prevent recurrence.
When considering the companys billion
pound turnover, it is also worth noting that
the company in fact made a pre-tax loss
of 85 million. The fine that was actually
CORPORATE
OFFENDER
C.RO Ports
London
Balfour
Beatty Civil
Engineering
National Grid
Gas
UK Power
Networks
(Operations)

A number of cases heard weeks before the


guidelines came into effect also illustrated
the prescriptive and uniform approach to
be adopted by the courts (in the spirit of
the 2016 Guidelines) for health and safety
breaches.

The ConocoPhillips case demonstrates the


dramatic shift in the landscape of health
and safety sentencing that the guidelines
have brought about a breach of health
and safety regulations which did not result
in injury may have previously attracted a
fine in the tens of thousands, as opposed
to millions.
It is quite likely that more organisations will
now fall into higher categories of offence
seriousness by virtue of the guidelines
focus on the risk of harm as opposed to
actual harm. The extent of these seemingly
hypothetical risks will undoubtedly become
a contested point at trial, likely to lead to
prolonged sentencing hearings involving
the introduction of expert evidence.

DATE OF
SENTENCE
21 January

Arm injury

25 January

Fatality

8.8bn
1m
(group turnover)

25 January

Broken leg

3bn

1m

26 January

Fatality

1bn

1m

Health and Safety legislation review: Reflecting on a year of significant change

HARM CAUSED

APPROXIMATE
TURNOVER
25m

LEVEL OF FINE
IMPOSED
1.8m

30

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Corporate Considerations
The culpability of a defendant company
remains the most decisive factor in
determining the appropriate level of fine to
be imposed by the Courts. The importance
of achieving high standards of compliance
with health and safety legislation has never
been greater for organisations.
Those companies found to have committed
deliberate breaches of, or who have
flagrantly disregarded, the law or even
those that fall far short of the appropriate
standard will be subject to the largest fines.
It is therefore important for organisations
to be able to demonstrate that they have
robust safety management systems in
place which are properly invested in and
implemented.
In light of the guidelines focus on company
turnover, fines for large and very large
companies that are guilty of committing
health and safety offences are going to
increase significantly. Arguments about
which corporate accounts should be
considered by the court will be significant.
Such battles will be especially pertinent
when dealing with groups of companies
and joint ventures consisting of distinct
incorporated (or even unincorporated)
entities.
It remains to be seen the extent to
which the prosecution will petition the
courts to consider the accounts of larger
parent companies with higher turnovers
when the sentences of smaller and less
profitable subsidiaries are being assessed,
particularly if the smaller subsidiary is the
entity in control of the activity related to the
alleged health and safety breach.

Health and Safety legislation review: Reflecting on a year of significant change

The guidelines state that ordinarily only


information relating to the organisation
before the court will be relevant, unless
exceptionally it is demonstrated to the court
that the resources of a linked organisation
are available and can properly be taken
into account. It is therefore unlikely that
the accounts of a parent or ultimate parent
company would be a consideration for
the court when sentencing a sufficiently
profitable subsidiary for its own breaches
of the law.
What of the future?
Only time will tell just how high the fines
for health and safety offences committed
by large and very large organisations will
be. There is no doubt that all eyes in the
industry are now very much on the courts.
The new reality may be frightening when
such an organisation is found guilty of a
serious offence for which it is deemed to be
highly or very highly culpable, when all bets
are off! Will the risk of receiving such huge
fines in the event of an incident reduce
the amount of injuries or fatalities? This
remains to be seen.
Surely the thought of a fine huge enough to
potentially put a company out of business
and/or the threat of imprisonment for
senior managers and director that fall far
short of the appropriate standard should
act as an incentive to proactively address
corporate health and safety concerns
as soon as possible (before an incident
occurs) and to ensure compliance with the
law at all times.

Kizzy Augustin is a senior associate at


Pinsent Masons LLP

31

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It is not uncommon for employers to


identify a safety problem and know they
are non-compliant

THE MOST DRAMATIC CHANGE


IN HEALTH AND SAFETY
ENFORCEMENT SINCE 1974
Simon
JoystonBechal
Director,
Turnstone Law

The new sentencing guidelines for health


and safety offences published today are
set to revolutionise punishment for health
and safety offences.
The Sentencing Councils stated intention
is to increase the level of fines for serious
offences, particularly for larger companies;
whilst reserving prison sentences for very
serious offences. In my view, the formulaic
approach laid down in the new guidelines
will greatly increase fines across the
board and most dramatically for very large
companies. More worryingly, many more
directors, managers and junior employees
will be handed custodial sentences
due to a significantly lower threshold for
imprisonment.
The new sentencing guidelines apply to
health and safety offences committed
by organisations and individuals, as well
as to corporate manslaughter and food
safety/hygiene offences. They introduce
a structured nine step approach that the
Court should follow, so as to calculate
sentences. This involves plugging
culpability and harm factors into a series
of tables to reach recommended starting
point fines, as well as ranges of fines above
and below the starting points.
The new regime has been carefully
calculated and will certainly improve
consistency across England and Wales.
It was published in draft for consultation
in November 2014 and the final version
published today is little changed from

Health and Safety legislation review: Reflecting on a year of significant change

the draft, with the same figures and


tables for fines as in the draft. These will
apply to sentences handed down from 1
February 2016, which make the guidelines
retrospective in the sense that they apply to
offences that have already been committed
and have not yet come up for sentencing.
My observations on the new guidelines are
as follows:
1. Easy to fall into the very high
culpability category
The first step of the process is to allocate a
culpability factor, ranging from very high to
low, which in turn will drive the allocation
of a recommended fine. The very high
category is triggered if there has been a
deliberate breach of or flagrant disregard
for the law. Although that sounds very
serious, with hindsight it may be all too
easy for breaches to fall into this category.
It is not uncommon for employers to
identify a safety problem and know
they are non-compliant; this becomes a
deliberate breach if they dont remedy it.
If prosecuted, they may now all too easily
find themselves at the sharpest end of the
new regime.
2. The shift from outcome based
sentencing to risk based sentencing
The main health and safety offences
are based on exposing people to risk.
However, enforcement practice (as driven
by public expectation) looks much more
closely at outcome. Breaches causing

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Exposing someone
to a high risk of
death should
warrant almost
the same sentence
regardless of
whether or not
there is a fatality
serious injuries and death have until
now been much more likely to be
prosecuted than mere exposure to
risk; and the sentences have also
been much heavier.

100 people walk along the unsafe


walkway each day, risking a fall of 10
feet, is there a high, medium or low
risk that someone will be killed or
disabled?

The Sentencing Council has adopted


a new rationale, dictating that
punishment should much more
closely fit the level of exposure to
risk. So, exposing someone to a high
risk of death should warrant almost
the same sentence regardless of
whether there is a fatality or merely
an exposure to risk without any injury.

The problem is that high, medium


and low are prone to wildly different
interpretations. Suppose the experts
agree that there was a 1 in 10 risk
that someone would have been
killed or disabled by falling from that
walkway throughout the period of the
breach. Even with such a precise
expert view, is that a high, medium
or low likelihood? The court would
struggle to answer that question
without understanding the wider
circumstances, looking at culpability
and what actually happened. But
those factors are intended to be
excluded from this stage of the
calculation to make the process
rigorous and fair.

The consequence of this well


intentioned change is to escalate
offences that were previously dealt
with moderately into the higher
reaches of the new formulae.
Imagine, a loose railing is discovered
on a busy walkway that could lead
to somebody falling from a height
of 10 feet. The high risk of death
or disability from someone falling
can take this straight into the most
serious harm category, even if
nobody has fallen.
3. Designating likelihood of
harm as high, medium or low
One of the steps is to designate the
likelihood of harm as being high,
medium or low. That appears to
be sensible. However, it may give
false reassurance as to the fairness
and objectivity of the new system. If

Health and Safety legislation review: Reflecting on a year of significant change

4. Extrapolation of fines for


organisations whose turnover
very greatly exceeds 50million
This issue will grab headlines in
due course. The guidelines, in
combination with the Court of
Appeals July 2015 judgement
against Thames Water Utilities, pave
the way for the very large companies
to be fined in excess of 100million
for the most serious offences. That
is clearly the Court of Appeals
intention.

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I am concerned the outcome will be very


much more dramatic than intended

5. Lower threshold for


imprisonment
The culpability factor and harm
category process is also used
in order to produce a guideline
starting point punishment for
individuals. At the more serious
end of the scale, the court is driven
to impose a custodial sentence.
So, where does the threshold for
imprisonment now lie?
My interpretation of the new
threshold is as follows: if a
director or employee knows there
is a breach of the law that has
at least a medium likelihood of
causing death or disability, then
the court is directed as a starting
point to impose a punishment
of one years imprisonment,
with a range of between 6 and
18 months depending on other
relevant factors. Many will judge
this to be fair if there has been
a fatal accident. But alarmingly,
imprisonment will be the conclusion
even if there has been no accident
at all just exposure to risk.
This is a very significant reduction
in the threshold for imprisonment
for health and safety offences.
In summary, the sentencing
guidelines adopt a range of well-

Health and Safety legislation review: Reflecting on a year of significant change

intentioned and apparently rational


changes. However, I am concerned
the outcome will be very much
more dramatic than intended, with
much greater fines across the
board and more individuals being
imprisoned for offences that would
not previously have been regarded
as sufficiently serious to merit a
custodial sentence.
It remains to be seen whether
these changes will improve
prevention and save lives, or drive
hazardous industries abroad
and bring public perceptions of
over-zealous enforcement to new
heights.
Dr Simon Joyston-Bechal is a
director at Turnstone Law. He is
widely regarded as one of the UKs
leading health and safety lawyers.
Having previously qualified as a
doctor, he is uniquely placed to
deal with technical, safety and
health related legal issues. He is
the author of a leading computer
based training aimed specifically
at directors and senior managers,
explaining what they need to do
to protect their company from
prosecution and stay out of jail.
Contact Simon at
sjb@turnstonelaw.com

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It seems certain that in the coming years


there will be an even more substantial
increase in prosecutions for corporate
manslaughter

SENTENCING GUIDELINES:
THE LEGAL VIEW
With the new Sentencing Guidelines now in force, Eversheds Principal Associate
Paul Verrico sought the opinion of the leading practitioners in the field to ascertain
what differences, if any, they thought the changes would drive.

Paul
Verrico
Principal associate,
Eversheds

As proposed in the draft guidelines,


for defendant corporate organisations
the published guidelines take the level
of culpability and harm and turnover of
the organisation as the starting point for
determining the appropriate fine.
This is likely to lead to an increase in
fines imposed in many health and safety
and corporate manslaughter cases when
compared to the fines imposed to date.
This is clearest when considering the
guidelines for sentencing defendants
convicted of corporate manslaughter.
The proposed range of the fine for all
organisations convicted of corporate
manslaughter is greater, and for medium to
large organisations, substantially greater,
than the penalties imposed to date for like
offences.
The penalties following convictions for the
offence of corporate manslaughter have
ranged from 8,000 to 600,000.
Under the common law sentencing regime
a company with an annual turnover of
up to 10m (i.e the small organisation
category under the new guidelines) was
fined 385,000 following a conviction after
a not guilty plea.
Under the new regime, the starting range
of penalty for a company of that size having
committed that type of offence is likely to
be 540,000 to 2.8m. Similarly, under
the old regime a company with a turnover
in excess of 70m was sentenced to a

Health and Safety legislation review: Reflecting on a year of significant change

penalty of 600,000. That same company


would fall into the large organisation
category under the new guidelines and be
exposed to a starting range of, at least,
3m to 12.5m.
The potential increase in financial
penalties for the offence of corporate
manslaughter also needs to be considered
in the context of the increasing number of
corporate manslaughter investigations and
prosecutions.
In recent years the Crown Prosecution
Service has reported a 40% increase in
charges for corporate manslaughter and
that figure is increasing year on year. It
seems certain that in the coming years
there will be an even more substantial
increase in prosecutions for corporate
manslaughter and, for organisations
convicted of the offence, a substantial
increase in the penalty they will be ordered
to pay. Prashant Popat QC, Henderson
Chambers
Under the Guidelines the starting point for
the assessment of a companys ability to
pay a fine is its turnover.
In adopting turnover as the starting point,
the Sentencing Council has rejected some
powerful representations, including from
the CBI, that assessing a companys
financial health by reference to turnover is
wrong.
Even the Justice Select Committee
described it as something of a blunt

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Will the guidelines be an improvement on


where we were? Yes, they provide more
comprehensive guidance

instrument. The Sentencing Council have,


no doubt, adopted turnover as the starting
point because it is simple and easy for
judges and magistrates to identify.
However this approach may well lead to
unfairness to companies who have high
turnovers but are not profitable, and to
business with low profit margins. Oliver
Campbell QC, Henderson Chambers
It is deeply disappointing that the Council
has chosen not to provide any definition
what a Very Large organisation will look
like from a turnover perspective and what
brackets may apply.
It seems open ended. The Court of
Appeal ducked the question of defining
these organisations in Thames Water
and notwithstanding requests and
invitations for clarity on the point during the
consultation phase, we are still left in the
dark.
How Judges will approach the point is
entirely unclear. This is an opportunity
missed for much needed clarification.
Kevin Elliott, Head of Health and Safety,
Eversheds LLP
Will the Guidelines be an improvement
on where we were? Yes, as they provide
more comprehensive guidance to Judges
(and practitioners) who are not familiar
with these areas leading to inconsistencies
which have often made it difficult to provide
clear advice as to outcome. That has long
been a frustration of many of us.

Health and Safety legislation review: Reflecting on a year of significant change

It would, however, be misguided to


assume that all concerns raised by
practitioners beforehand have been
addressed. The guidelines do ameliorate
the artificial pressure point of whether or
not failings have caused death which had
as a consequence the focus being on the
minutiae of an accident rather than a focus
on the wider exposure to risk.
I anticipate there being more contested
cases towards the upper end of the scale
and generally sentencing hearings will
become more complex with an emphasis
on identifying the appropriate category.
The earlier work is geared towards doing
so the better, especially if agreement can
be reached with the prosecution and the
consequent saving of costs.
It would have assisted if greater guidance
were given on the mitigating factors
accepting responsibility, remediation and
assistance given to the investigation as
they go the heart of what we are trying to
achieve in reducing future risk.
Personally, I think the guidelines should
have incorporated gross negligence
manslaughter arising out of workplace
failings. Jason Pitter QC, New Park Court
Chambers who successfully prosecuted
the first corporate manslaughter case
under the guidelines
I must confess that I was both amazed
and somewhat disappointed to see that
only 104 organisations and individuals filed
responses to this important consultation
exercise. There have only been minor
changes from the draft guideline. We may

36

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This new regime is sending a chill through


UK PLC

never know if there is a connection given


this somewhat laissez-faire attitude!
We are now where we are, but I cannot
help thinking that companies and
organisations may feel it somewhat unfair
that a sentence this month could be 10 or
15 times higher than it would have been in
January.
This new regime is sending a chill through
UK PLC, especially in larger companies and
entities: only time will tell whether this new
approach could be seen as a bridge too
far! Gerard Forlin QC
As expected, the draft and published
guidelines are substantially the same.
Generally speaking the new guidelines will
lead to a more structured and consistent
approach to sentencing.
However, the position for very large
organisations (i.e. where the turnover is
significantly greater than 50m) remains
more difficult to predict. For these
organisations the guidelines state that it
may be necessary to move outside the
suggested range to achieve a proportionate
sentence.
The first few cases in this category will
be of considerable importance. Charles
Gibson QC, Henderson Chambers
Due to the reverse burden of proof
imposed by Section 40 of the HSWA, most
organisations know that, in retrospect,
they could have done more to avoid
an incident from occurring; there is an
undoubted uneasiness across UK plc at
the potential ramifications that may result.
Such uneasiness increased throughout the
last few days of January 2016 as several

Health and Safety legislation review: Reflecting on a year of significant change

1 million fines were imposed by courts


including a huge 1.8 million for C.RO
Ports London Ltd in Basildon Crown Court
following a guilty plea.
The case involved, in essence, a non-fatal
machine trap case in which an employee
suffered fractures. The companys
accounts show that its turnover was below
50 million at last filing date.
All eyes are on the first cases through the
criminal courts in February 2016. Only
on the 5th February, the HSE published
the prosecution of Solvay Solutions (UK)
Limited in Warley Magistrates Court; the
company was fined 333,000 following a
guilty plea after an uncontrolled release of
dangerous substance when a weld broke
in two. The fine was imposed mainly on the
potential for harm, rather than any actual
harm to human health.
The world of the health and safety
practitioner is changing. Now is the time for
organisations to review their risk profile and
take appropriate steps to mitigate against
the potential for harm.
The potential for custody has also become
ever more real and we anticipate that will
further influence positive safety behaviours.
Whether the Guidelines act as a sword to
punish duty holders when they take risks
or a shield for workers reminding good
employers of the need for safety vigilance
and to prioritise safety spend remains to
be seen.
Eversheds is the top ranked law firm
for Health and Safety work in the UK
according to the Chambers Legal
Directory.

37

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The courts now have even greater powers


of enforcement for a whole range of
offences

Mary
Clarke

CEO, Cognisco

HOW BUSINESSES CAN IMPROVE


HEALTH AND SAFETY IN THE
FACE OF NEW REGULATIONS
New sentencing guidelines for health
and safety offences came into effect in
February 2016 and are set to be a big
game changer in terms of the punishment
that organisations and individuals can
receive for breaches.
Businesses and individuals could face
much greater fines, and more individuals
could be imprisoned for serious offences
than ever before. If employers havent
done so already they need to urgently
review their health and safety procedures
to ensure they as robust as possible, given
the consequences of any breaches are to
become much harsher.
The aim of the guidelines are to ensure
a consistent, fair and proportionate
approach to sentencing organisations or
individuals who are convicted of corporate
manslaughter, health and safety and
food safety and hygiene offences, by not
following the proper health and safety
regulations.
The Health and Safety Act 1974 is the
main piece of UK health and safety
legislation and it places a duty on all
employers, to ensure, so far as is
reasonably practical, the health, safety and
welfare at work of all employees. Under
the new guidelines the courts now have
even greater powers of enforcement for a
whole range of offences.

Health and Safety legislation review: Reflecting on a year of significant change

According to the Sentencing Council the


offences that come under the guidelines
are very varied and could include a building
firm that causes the death of an employee
by not providing the proper equipment for
working at height, a restaurant that causes
an outbreak of e. coli poisoning through
unsafe food preparation, a manufacturer
that causes injury to a new worker by not
providing training for operating machinery
or a gas fitter whose sub-standard
work leads to the risk of an explosion in
someones home.
Within organisations human error is one of
the biggest risk factors when it comes to
health and safety. A company can have all
the processes and procedures in the world
but unless employees are carrying them
out correctly then they, customers and even
the public at large could be at risk from
injury or even death.
Over the years weve assessed thousands
of employees across many industries and
evidence suggests that around 30% of any
workforce misunderstands some aspects
of their role, which can lead to errors and
mistakes which impact health and safety.
Understanding why errors are occurring is
crucial, however, many companies dont
place enough emphasis on understanding
or getting to the bottom of root causes that
determine how people behave at work.

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Just because someone has attended a


training course, it doesnt mean they are
competent and confident

A mistake many make is to keep using


the same types of employee assessment,
training, and learning and development
methods they have always done; however,
this is unlikely to be the best solution as
companies never actually fully understand
where their people risk lies.

The results drill down into the detail of


what people know, as well as how they
would apply their knowledge on the job
which highlights their likely behaviour and
attitude towards risk. The assessments
also identify specific knowledge gaps and
training needs so they can be addressed.

One industry where understanding people


risk is imperative is utilities and we have
been working with companies in this sector
We have helped several utilities companies
address the issue of cable strikes by
developing the Cable Avoidance Evaluation,
based on our unique methodology which
has been devised to get to the root causes
of behaviour and why someone acts the
way they do at work. This assessment has
helped reduce the risk of underground
cable strikes and improve safety
standards, ensuring compliance with all
safety standards.

The methodology and situational


judgement assessments, reveal what
individuals truly know and understand,
and what they misunderstand so the
risk factors and how confident they are in
applying their knowledge. By building up
a picture of an individuals or teams likely
behaviour in certain situations and where
potential risks lie, a company can plan for
remedial action.

The assessment uses situational


judgement questions based on realistic
scenarios that engineers encounter daily
and measures a unique combination of
peoples knowledge, competence and
confidence in all aspects of their roles.

Health and Safety legislation review: Reflecting on a year of significant change

This new approach to assessing


employees can be adapted and used by
any organisation to improve health and
safety, and in light of the new legislation
is something more companies should be
consider implementing to help mitigate
their people risk.

Mary Clarke is CEO of Cognisco

39

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It is difficult to argue that organisations


convicted of breaches which cause harm
should not pay fines more in line with
those for corruption

SENTENCING GUIDELINES: WILL


THEY MAKE THE WORKPLACE
SAFER?
Tim Hill

Partner and
solicitor advocate at
Eversheds LLP

The new sentencing guidelines have been described as the biggest change to
health and safety law for 40 years. Tim Hill, Partner and Solicitor Advocate at
Eversheds LLP, asks if the changes will really make the workplace safer?
The new sentencing guidelines for health
and safety, corporate manslaughter, food
hygiene and food safety offences have now
come into full force. Although there are no
changes to substantive Acts or regulations,
this undoubtedly represents the biggest
change in the law since 1974.
In simple terms, it will introduce the
prospect of million pound fines for larger
organisations, and smaller businesses
could see fines in excess of 10% of
turnover. It also lowers the threshold for

Health and Safety legislation review: Reflecting on a year of significant change

potential imprisonment for individuals so


that negligent actions which put people at
risk, rather than just reckless or deliberate
behaviour, could result in any employee or
director facing the possibility of a stretch
behind bars.
Given increasing scrutiny of businesses
corporate social responsibility credentials
and the public outcry following events such
as Alton Towers or the Coroners Inquest
involving Thomas Cook, at one level it
is difficult to argue that organisations

40

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The inability to give credit to those


businesses that genuinely try to do the
right thing means higher penalties are
unlikely to drive any change in culture

convicted of breaches which cause harm


should not pay fines more in line with those
for corruption.
However, will hammering all businesses
convicted of a breach actually make
workplaces safer, or will it represent
a backwards step either by driving a
culture of non-reporting, or pushing larger
businesses to hive off risky activities into
shell companies or take their business
away from the UK altogether and place it in
less regulated jurisdictions?
A large organisation (with a turnover greater
than 50million) being sentenced for high
culpability and harm (a workplace fatality
for example) can expect a range of 1.5m
to 6m with a starting point of 2.4m (to
be adjusted on the facts of the case).
If the culpability is very high the range
is 2.6m to 10m with an entry point
of 4m. Nor is 10m a ceiling. Large
organisations with a turnover several
times more than 50m potentially face
considerably larger fines.
The difficulty is arguably that very well run
businesses with a strong safety culture and
good processes, procedures and training,
but who fail in one discrete area, will find
themselves facing significant fines which
are arguably out of proportion to their
overall attitude and approach to safety.

Health and Safety legislation review: Reflecting on a year of significant change

Perhaps of more impact, will be the


correspondingly negative comments
which will accompany such a fine, giving
the outside world (including employees,
customers and suppliers) the impression
they are a poor performing company which
does not take health and safety seriously.
In many ways, that inability to give credit
to those businesses which genuinely try
to do the right thing means that the crude
imposition of higher penalties in isolation
is unlikely to drive any immediate change
in safety culture or behaviours. Those
businesses which already recognise the
significant advantages of operating a safe
and healthy workplace will be unlikely to
do anything fundamentally different simply
because of the threat of much higher fines
if they get anything wrong.
On the other hand, those businesses which
recognise continuous improvement means
developing a constant state of unease and
looking beyond audit green lights and low
LTIs, should take these changes as another
trigger to challenge their behaviours. In that
way, the guidelines may make workplaces
safer, but it is unlikely the Sentencing
Council had this in mind when they were
being drafted.

Tim Hill is a Partner and Solicitor Advocate


at Eversheds LLP.

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THE NEW SENTENCING


GUIDELINES: IS YOUR BOARD
PREPARED?
Simon
JoystonBechal

The new sentencing guidelines for health


and safety offences have been in force
since 1 February 2016. They were
intended to increase the level of fines,
particularly for larger organisations.

Director,
Turnstone Law

However, unintended consequences of the


way punishments are now calculated mean
that judges will be forced to hand out very
much greater fines than expected and send
many more directors, managers and junior
employees to jail for breaching health and
safety laws.
The Four Inflations
For most health and safety breaches, the
criminal law laid down by Parliament does
not set an upper limit to the size of the
fine, so it is left to judges and magistrates
in Court to decide how the fine should
fit the crime. To help the Court set a
fair, transparent and consistent tariff,
the eminent judges and lawyers on the
Sentencing Council have created a set of
guidelines now coming into force.
Close inspection of the new sentencing
guidelines shows that four inflationary
factors are going to increase radically the
level of fines, yet only one of these factors
was intended. Similarly, the threshold for
imprisonment will be reached very much
more easily than before. Lets look briefly
at the four inflationary factors:

Health and Safety legislation review: Reflecting on a year of significant change

First Inflation
The sentencing guidelines introduce a
structured approach that the court must
follow. This involves plugging culpability,
likelihood and harm factors into a series
of tables to reach recommended starting
point fines, as well as ranges of fines above
and below the starting points. Similarly
for imprisonment of individuals, the tables
stipulate ranges of prison sentences above
and below various starting points.
These tables were calculated by reviewing
past sentences and then, particularly for
larger companies, increasing the levels of
fines. This first inflation was intended. It
was designed to accommodate the Court
of Appeals repeated view that health
and safety fines have generally been too
low and need to be increased sufficiently
to send a message to directors and
shareholders. Indeed, the Court of Appeal
envisages fines exceeding 100 million for
the worst health and safety breaches by
the largest companies.
But the Court of Appeal has not
recommended massive increases across
the board, even for less serious offences
by smaller companies and by individuals.
Yet this will be the effect of the next three
inflations.

42

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I struggle to think of a case where the


breach only exposed one person to a risk
of harm
Second Inflation
The sentencing guidelines switch from a
mainly outcome based approach (what
was the seriousness of the injury) to a risk
based approach (how serious was the
harm that was risked). There are justifiable
reasons for this switch but its inflationary
effect on sentences was not factored into
the calculations. How does this second
inflation work?
Suppose an object falls from a crane and
crushes someones toes. Traditionally,
that would be prosecuted and sentenced
very much more leniently than if the same
object had hit someones head and caused
a fatality. Under the new risk based
approach, the toe injury is seen as having
involved a high risk of death or disability
and is plugged into the computation at the
level calculated for a fatality.
The majority of non-fatal incidents could
have been more serious, so these will be
inflated up to the level of fine corresponding
to that more serious injury.
Third Inflation
If the offence exposed not just one but a
number of people to the risk of harm, the
Court is directed to ramp the punishment
up to the next level. As a seasoned health
and safety defence lawyer, I struggle to
think of a case where the breach only
exposed one person to a risk of harm. For
example, if other people could have been
hit by the object falling from the crane, this
third inflation will apply.
Fourth Inflation
Finally, if there was actual harm (unless
more minor than could be expected),
the Court is also directed to ramp the
punishment up to the next level. Since
most prosecutions arise after someone
has been injured, this fourth inflation will
almost always apply.

Health and Safety legislation review: Reflecting on a year of significant change

Summary
The combined effect of these last three
unintended inflations will mean that
criminal sentences will tend to converge at
the higher end of a scale that has already
been substantially increased by the first
intended inflation. The Court is given
some discretion but not enough to depart
materially from the stipulated calculations.
For example, it is going to be difficult for an
individual convicted offender to escape a
jail sentence if he or she was aware of a
risk of being in breach, nobody suffered an
injury but several people were exposed to
a medium likelihood of death or disability.
This is a very significant reduction in the
threshold for imprisonment for health
and safety offences. I would be very
interested to see if others come to the
same conclusion by working through the
guidelines?
It has never been more important to bring
the importance of health and safety to the
attention of board members and senior
executives and, for my part, to explain how
the law expects them to act in order to stay
out of jail.

Dr Simon Joyston-Bechal is a director at


Turnstone Law. He is widely regarded as
one of the UKs leading health and safety
lawyers. Having previously qualified as
a doctor, he is uniquely placed to deal
with technical, safety and health related
legal issues. He is the author of a leading
computer based training aimed specifically
at directors and senior managers,
explaining what they need to do to protect
their company from prosecution and stay
out of jail.

43

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Health and Safety legislation review: Reflecting on a year of significant change

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