Health & Safety Briefing - Spring 2009
HIGHER STAKES FOR FAILURE TO COMPLY WITH HEALTH & SAFETY LEGISLATION!
Welcome to the first edition of our Health & Safety Briefing
In this briefing, we will look at The Health & Safety (Offences) Act 2008, the results of not conducting risk assessments for lethal gas, why ignoring a prohibition notice could be at your peril, and a landmark case which proved that stress in the workplace is a health matter. Simply click on the links below for the full story.
If you would like to discuss the issues raised then please contact either of us who will be very happy to discuss these with you.
Health & Safety (Offences) Act 2008
Lethal Gas
Ignore a prohibition notice at your peril!
Stress is a health matter
Health & Safety (Offences) Act 2008
The Health & Safety (Offences) Act 2008 comes into force on 16 January 2009. The Act does not change any of the duties upon businesses but it does however, increase the seriousness of the consequences for a breach of health and safety legislation.
Previously the majority of breaches of the Health & Safety at Work etc Act 1974 were only punishable by financial penalties. The new Act changes this. Most offences, including breaches of Sections 2, 3, 7 and 37 and any of the Regulations made under the Health & Safety at Work etc Act will also carry a sentence of a term of imprisonment not exceeding 12 months for a conviction in the Magistrates’ Court and up to 2 years for conviction in the Crown Court.
The Act also increases the maximum fine which may be imposed by a Magistrates’ Court for most Health & Safety offences from £5,000 to £20,000. Fines imposed by the Crown Courts remain unlimited.
The new Act has made it possible for Defendants to choose whether they want to have the case heard by the Magistrates’ or Crown Court.
Although each Court has different maximum terms, it is likely that more businesses will elect for Crown Court trials rather than have the case heard before a magistrate, due to the significant increase in the sentencing power for magistrates. Some businesses will take the view that they would prefer to have the matter tried by a jury.
A New Year resolution for all businesses should be to check the health and safety policies and provisions to ensure that the employees, visitors, customers and members of the public are not put at risk as a result of the activities of the business. The introduction of the Corporate Manslaughter and Corporate Homicide Act 2007 may not have increased the risks for individuals but this new Act is a clear incentive to dust off the old risk assessments and review the resources applied to improving health and safety in your business.
The Health & Safety Executive is warning businesses to conduct suitable risk assessments and provide safe systems of work, after toxic carbon dioxide (CO2) was released into a basement substation where it had little likelihood of escape.
Employees of Denso Manufacturing Midlands Limited had released carbon dioxide from 11 large cylinders into a small basement room, unaware that it was heavier than air and would not be able to escape.
Completely unaware that the gas had been released, a contract electrician re-entered the substation but left immediately because he noticed an unpleasant taste to the air. Once outside he felt weak, was taken to hospital and treated for gas inhalation.
The Court heard that the concentration of carbon dioxide in the air was well above the level liable to cause lack of consciousness. If the electrician had lapsed into unconsciousness it is likely he would not have been found for some considerable time and this would have made the chances of him being revived very unlikely.
During the HSE’s investigation they discovered that no risk assessment had been carried out by the company to identify the risks arising from carbon dioxide.
On 12 December 2008 Birmingham Magistrates Court fined Denso Manufacturing Midlands Limited a total of £28,000 and costs of £5,278 after pleading guilty to breaches of sections 2 (1) and 3 (1) of the Health & Safety at Work Act etc 1974 and Regulation 3 (1) of the Management of Health & Safety at Work Regulations 1999.
Ignore a prohibition notice at your peril!
On 28 October 2008 Mr Bola, the owner of the Royal Renaissance Hotel in Skegness, was found guilty of ignoring a prohibition notice issued by the HSE. He was also found guilty of employing an unregistered gas fitter to install pipe work and gas catering appliances and failing to appoint a CDM Co-ordinator in respect of the project to refurbish the hotel. The Skegness Magistrates Court passed a 12 week custodial sentence, suspended for 1 year to Mr Bola for ignoring the HSE prohibition notice. He was also ordered to carry out 200 hours of community service within the year and pay the full Court costs of £20,623.
In the landmark case of O2 -v- Dickens (2008), Mrs Dickens brought an action against her employers, for psychiatric injuries caused by excessive stress in the workplace. Mrs Dickens was successful in her claim and was awarded £109,754.22. O2 appealed against the decision on the grounds of forseeability, breach of duty and causation, but the appeal was dismissed for the reasons set out below:
On the question of forseeability the Court held that the symptoms of Mrs Dickens had not come out of the blue. The fact that she had been mentioning difficulties to her employer over a period of time was held to be significant.
The failure to send Mrs Dickens home and/or make an immediate referral to an occupational health practitioner was held to be a breach of O2’s duty.
The Court also held that the claimant was “tipped over the edge” due to the failure by O2 to recognise and address her need for a rest or change to her work requirements. Mrs Dickens did not have to prove that O2 had made a material contribution to the injury.
To reduce the risk of stress related claims, employers should take seriously the following indicators:
• Complaints by employees
• Inadequate training and support
• Deteriorating work performance
• Crying or tearful at work
• Excessive non-specific sick leave
• Any previous mental health issues known to employer.
If there is a reasonable suspicion that an employee is suffering from stress, employers should:
• act promptly
• monitor the employee’s work performance and provide support
• refer employee to an occupational health practitioner
Work related stress is likely to increase in the near future due to company restructuring to compete with the economic downturn and anxiety about redundancies. The impact of the Dickens case will make it easier for the Courts to find employers liable for stress induced illness.
Raymond Joyce
Tel: 0845 634 2578
raymond.joyce@freethcartwright.co.uk
Lisa Gilligan
Tel: 0116 248 1145
lisa.gilligan@freethcartwright.co.uk
While every effort has been made to ensure the accuracy of this review, it does not provide complete coverage of the subjects referred to. It is not a substitute for professional legal advice and should not be relied upon as such.