Blake Lapthorn’s in-house lawyer
and decision makers’ forum
Nikki Hutchins
nicola.hutchins@bllaw.co.uk
Health and Safety :...
The deregulation agenda
Nikki Hutchins
nicola.hutchins@bllaw.co.uk
Create PDF files without this message by purchasing nov...
The background
 October 2010 – Lord Young’s report “Common
Sense, Common Safety”
 November 2011 – Professor Löfstedt’s r...
New legislation
 Defence costs
 Fee for intervention
 Abolition of strict liability in compensation cases
 Injury repo...
Approved Codes of Practice
 ACoPs abolished
– L21 (replaced by re-written HSG65 on managing
health and safety)
– L81 on g...
Other non-legislative action by HSE
 Appeal panel
– http://www.hse.gov.uk/contact/challenge-panel.htm
 Myth busters
– ht...
Action on local authorities
 Primary authority
 Inspection plans
 Enforcement code
– http://www.hse.gov.uk/lau/national...
In the pipeline
 The Deregulation Bill
– The self employed “exemption”
– The “promotion of growth” duty
 The Business Ta...
Fallout
 Comprehensive Spending review – cut HSE budget
by 2014/5 by 35%
– HSE is struggling to maintain frontline number...
Corporate Manslaughter
Nikki Hutchins
nicola.hutchins@bllaw.co.uk
Create PDF files without this message by purchasing nova...
Corporate Manslaughter & Homicide Act 2007
 An organisation is guilty of an offence … if the way
in which its activities ...
Senior Management
“The Persons who play significant roles in
i. The making of decisions about how the whole or a
substanti...
Relevant Duty Of Care
 The relevant duty of care is one already owed under
the law of negligence
 A question of law to b...
Gross Breach
 The conduct alleged to amount to a breach of that
duty falls far below what can reasonably be
expected of t...
Jury Factors
 The jury may also:
a. Consider the extent to which evidence shows there
were attitudes, policies, systems o...
Sentencing Guidelines
 Corporate Manslaughter and Health & Safety
offences causing death : In force 15 February 2010
 Fa...
Investigations
 Police have primacy : HSE or fire authority advice
 Reference to the CPS Special Casework Unit
 Very co...
Case Study
Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
The Good News
 The prospects of being subject to an investigation
can be much reduced by:
– Effective risk management for...
Blake Lapthorn’s in-house lawyer
and decision makers’ forum
Nikki Hutchins
nicola.hutchins@bllaw.co.uk
Health and Safety :...
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Blake Lapthorn's In-house lawyer and decision makers forum - 'Health & Safety: the changing legal landscape', March 2014

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On Thursday 13 March 2014, Blake Lapthorn's commercial litigation team hosted an in-house lawyer and decision maker's forum in Oxford. Our speaker, Nicola Hutchins, discussed the changing lanscape of Health & Safety.

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Blake Lapthorn's In-house lawyer and decision makers forum - 'Health & Safety: the changing legal landscape', March 2014

  1. 1. Blake Lapthorn’s in-house lawyer and decision makers’ forum Nikki Hutchins nicola.hutchins@bllaw.co.uk Health and Safety : the changing legal landscape Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  2. 2. The deregulation agenda Nikki Hutchins nicola.hutchins@bllaw.co.uk Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  3. 3. The background  October 2010 – Lord Young’s report “Common Sense, Common Safety”  November 2011 – Professor Löfstedt’s report “Reclaiming Health and Safety for All”  January 2012 – Prime Minister’s speech in Maidenhead Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  4. 4. New legislation  Defence costs  Fee for intervention  Abolition of strict liability in compensation cases  Injury reporting  Consolidation and repeal of various specialist regulations Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  5. 5. Approved Codes of Practice  ACoPs abolished – L21 (replaced by re-written HSG65 on managing health and safety) – L81 on gas service pipes – L116 on preventing accidents to children in agriculture  ACoPs radically amended: – L5 on COSHH – L8 on legionnaires’ disease – L28 on workplace health, safety and welfare – L56 on gas safety (consolidation of 2 ACoPs) – L138 on dangerous substances and explosive atmospheres (consolidation of 5 ACoPs – L143 on asbestos (consolidation of 2 ACoPs) Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  6. 6. Other non-legislative action by HSE  Appeal panel – http://www.hse.gov.uk/contact/challenge-panel.htm  Myth busters – http://www.hse.gov.uk/Myth/myth-busting/index.htm Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  7. 7. Action on local authorities  Primary authority  Inspection plans  Enforcement code – http://www.hse.gov.uk/lau/national-la-code.pdf Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  8. 8. In the pipeline  The Deregulation Bill – The self employed “exemption” – The “promotion of growth” duty  The Business Taskforce “Cut EU red tape” – Abolish the requirement for small businesses to keep written records of risk assessments – Relax the requirements for the employment of young people Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  9. 9. Fallout  Comprehensive Spending review – cut HSE budget by 2014/5 by 35% – HSE is struggling to maintain frontline numbers  FFI: – Won’t plug the gap – Has demoralised swathes of experienced inspectors who have left  Prosecutions – Have remained constant over last 5 years Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  10. 10. Corporate Manslaughter Nikki Hutchins nicola.hutchins@bllaw.co.uk Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  11. 11. Corporate Manslaughter & Homicide Act 2007  An organisation is guilty of an offence … if the way in which its activities are managed or organised:- a) Causes a person’s death; and b) Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased”  An organisation is guilty only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  12. 12. Senior Management “The Persons who play significant roles in i. The making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised; or ii. The actual managing or organising of the whole or a substantial part of the activities” Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  13. 13. Relevant Duty Of Care  The relevant duty of care is one already owed under the law of negligence  A question of law to be determined by the Judge, making any findings of fact necessary to decide that question  Employer and occupier duties Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  14. 14. Gross Breach  The conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of that organisation in the circumstances  Falls to jury to decide if gross breach  The jury must consider whether the evidence shows that the organisation failed to comply with any Health & Safety legislation that relates to alleged breach, and if so: a. How serious that failure was b. How much risk of death it posed Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  15. 15. Jury Factors  The jury may also: a. Consider the extent to which evidence shows there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure,…. or to have produced tolerance of it b. Have regard to any Health & Safety guidance that relates to the alleged breach Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  16. 16. Sentencing Guidelines  Corporate Manslaughter and Health & Safety offences causing death : In force 15 February 2010  Factors likely to affect seriousness  Factors to afford mitigation  A fixed correlation between the fine and either turn over or profit is not appropriate  Corporate Manslaughter – seldom less than £500,000 and may be measured in £1,000,000’s  Health & Safety offences causing death – seldom less than £100,000 Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  17. 17. Investigations  Police have primacy : HSE or fire authority advice  Reference to the CPS Special Casework Unit  Very complex investigations  Pre April 2008 evidence  The story so far  5 cases already decided  Companies small and director owned and managed  Directors charged under Section 37  5 other cases where charges have been announced Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  18. 18. Case Study Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  19. 19. The Good News  The prospects of being subject to an investigation can be much reduced by: – Effective risk management for effective risk assessment, mismanagement and risk review systems – Enforcement of systems – Adopting best practice and guidance  HSG65 Plan-Do-Check-Act  IOD/HSE “Leading Health and Safety at Work” – Acceptance of Health & Safety responsibilities at all levels – Leadership from the top – Planning Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)
  20. 20. Blake Lapthorn’s in-house lawyer and decision makers’ forum Nikki Hutchins nicola.hutchins@bllaw.co.uk Health and Safety : the changing legal landscape Create PDF files without this message by purchasing novaPDF printer (http://www.novapdf.com)

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