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HSE more than trebles the number of Directors prosecuted for safety offences

Research by law firm Clyde & Co. has shown that the number of HSEcompany directors prosecuted by HSE in the year to 31 March 2016 more than trebled from 15 to 46 persons.  In the same period the number of employees prosecuted has fallen from 10 persons to just 1.

According to the research of these 46 prosecutions 34 were found guilty and 12 were given prison sentences, the longest of which was 2 years.

We can only reach one conclusion from the data above and it confirms what we have seen from assisting the thousands of clients across the UK in both construction and industry, and that is that HSE are pursuing clients with a zeal not seen in the past 20 years.

A second conclusion seems to be that prosecutions against employees are becoming less likely, and perhaps less attractive to the enforcer.  Prosecutions against corporate bodies and directors bring with them valuable income from FFI at a time when the regulator is facing budget cuts. Its seems unlikely that the situation will change in the near future and change which could see all businesses covered by HSE from next year to increase the number of fines and prosecutions still further (see our post on this here).

If you’d like to know more about Directors responsibilities please read the HSE guidance pages.  You may also want to look at the advice provided by the Institute of Directors and also IOSH.

Contact us on 01453 800100 if you need expert help with health and safety for a fixed cost or use contact us on 01453 800100

 

Posted by Roger Hart

Dusts in construction (RCS), their risks and how to manage them

dust RCS crystalline silicaHealth in construction is a big issue and HSE are pushing hard to get the message out to clients of all sizes that health in construction is a very high risk.  The latest figures show that as many as 100 staff per week die from ill health causes through their job – and that’s just the construction sector!

With this in mind we are working with our clients to address these risks, educate their staff through training courses and toolbox talks and also running free sessions on the risks associated with construction dusts and how to manage them – the next of which is running in November 2016 at our offices in Stroud.  Check out this link for the talk which we gave to WWT (an HSE and Construction industry partnership organisation)

Dusts in construction (RCS), their risks and how to manage them

These talks won’t just give you an understanding of the risk present, they’ll give you clear and workable advice on how to manage them through changes in working practices and tool selection, we’ll also have expert advice from Dust Control UK on what equipment you can use to clean up dusts without exposing your staff and your clients to cancer causing Respirable Crystalline Silica (RCS).

We’ll update you on the free course and also put a booking link here as soon as its live on our Eventbrite page, in the meantime feel free to look at these Workers Stories from HSE to give you some useful resources to raise the issue of construction dusts with your staff and click here to see HSE’s latest Health in Construction – The Facts poster HSE;

 

Posted by Roger Hart

The compensation (no win no fee) cases still keep coming… but why?

OS Logo EmailBack in 2013 we wrote a post informing you of the changes which were made on strict liability which links directly to no win no fee liability; read our original post here

A number of changes were put together which aimed to cap the costs charged by solicitors and to remove the incentive to make speculative claims against businesses.  These changes included making  insurance costs against losing the case non recoverable by solicitors and any premiums payable by the claimant only, later that year were also saw the removal of strict liability in health and safety cases.

However, this has only had limited success and the claims adds and ambulance chasers are still out there and earning a very healthy living.

What can you do to protect your business from No Win No Fee

Great question!  A few simple measures will help introduce some protection and don’t forget that insurers are now much less likely to concede a claim than they were a few years ago.  In fact, we know of insurers employing the services of specialists claims investigation teams of claims of under £10,000 – something which was unheard of a year or two ago.

Here’s a list of simple things you can do now with no real cost impact to give you protection in the event of one of these claims hitting your business;

  1. Consider CCTV; having evidence of what happened is liability gold dust and could see the case dismissed entirely, if you’re considering the cost benefit make sure you consider this benefit when talking to installers;
  2. Get savvy on accident recording and investigation; perhaps the biggest single change to to take photo (as many as you can) and gather signed witness statements from everyone on the day the accident happens and as close to the time of the event as is humanly possible;
  3. Look at your current arrangements for health surveillance – we can help you with this, issues such as occupational deafness are the new whiplash for the ambulance chasers (see our 2014 post warning you of this here);
  4. If you receive a claims letter don’t respond to it!  Contact your insurer and put it into their hands, no matter what the content, leave it to their legal team to handle in the best way possible to protect you;
  5. If you think you may have a claim against you from an employee contact your insurer, they may be able to deal directly with a claimant and save you thousands if you have had a genuine accident and one of your staff is injured.

We hope you’ve found the above useful, as always, if you have questions please do call your retained consultant or if you’re not yet a client please get in touch with us directly using the links below.

Contact us on 01453 800 100 if you need expert help with health and safety for a fixed cost or request a call back.

Posted by Roger Hart

HSE enforcement under review, could HSE cover offices, shops and small business?

HSEIn a move which we suspected might come to pass some years ago it has been announced that health and safety enforcement may change for smaller businesses.

During July 2016 the HSE ran a consultation on health and safety enforcement allocation.  Chiefly, it looked at the role of the local authorities.  A range of options were considered, ranging from completely absorbing the LAs’ regulatory powers for health and safety, to allocating them greater duties.

This is something which we discussed on our Breakfast Club sessions for clients and on this blog some years ago.  We believe that this is likely to come to pass and the reason will be to bring the lucrative Fee for Intervention (FFI) scheme into play for smaller businesses.

Passing the enforcement role to HSE from overworked EHO’s achieves three goals of the government as we see it;

  1. It eases the burden on councils at a time when their budgets are under stress from central government funding;
  2. It enables the introduction of Fee for Intervention (fee based enforcement) for the remainder of UK workplaces enabling it to reach smaller businesses and drive in additional revenue;
  3. The current situation for sectors such as the motor trade / motor vehicle repair are split untidily between HSE and the LA’s, this change would enable a simpler co-ordinated approach to this type of business which currently falls between HSE and FFI fines and the LA EHO’s and no FFI.

Likely timescales

So, when is this likely to happen?  Well, nothing in government moves quickly and so we won’t see any update on the consultation until 2017 with any changes happening in late 2017.  However, we do think a change is on the way and HSE are recruiting, watch this space…

Contact us on 01453 800 100 if you need expert help with health and safety for a fixed cost or request a call back.

Posted by Roger Hart

Occupational Health: Styrene Vapour Prosecution, Templetown Canopies Ltd

We’ve carried out many monitoring programmes which have involved exposure to styrene vapour over the past 20 or so years.  The substance is in common use and because of this businesses and their staff can sometimes become too familiar with the substance and fail to take adequate precautions.

We also have heard staff assuring us that they don’t need to use protective equipment as they have developed a tolerance or even an immunity to styrene’s effects – wouldn’t it be good if that could ever be the case…

In the case below styrene exposure simply wasn’t guarded against and although HSE Inspectors know that small businesses have pressures on them they quite rightly won’t allow this as an excuse to endanger the health of their employees.

If you need occupation health advice, air monitoring for styrene or any other safety support please speak to your retained advisor or contact us on 01453 800100 to get some sound advice.

Solar panel installer falls through fragile asbestos roof, company fined more than £20,000

Templetown Canopies Limited from Tyneside has been prosecuted over the lack of controls regarding the use of the hazardous substance styrene during the production of fibre glass door and window canopies.

Styrene exposure causes irritation to the nose, throat and lungs and neurological effect including difficulty in concentrating, drowsiness, headaches and nausea.

HSE inspected the company premises in May 2013 issued an Improvement Notice. However, the company did not take action to comply with the Notice until they moved premises in March 2015 failing to adequately control exposure of their employees to styrene.

An extraction system should also have been in place to remove the heavier than air vapours and RPE provided with the correct filters (FFP3) to protect operators.

Employees exposed to styrene vapour for almost 2 years

Templetown Canopies Limited, of Shaftsbury Avenue, South Shields, Tyne and Wear, pleaded guilty to breaching Regulation 7(1) of the Control of Substances Hazardous to Health Regulations 2002 (COSHH) and was fined £8,500 and ordered to pay costs of £4,500.

Speaking after the hearing HSE Inspector Fiona McGarry said:

“Workers’ health was put at risk from exposure to styrene for a period of 22 months, even after the company had been made aware of the actions it needed to take.

Whilst HSE is sympathetic to the pressures faced by small businesses, this is simply not acceptable. Employers need to take action to ensure they are providing adequate control to protect the health of their employees.”

Posted by Roger Hart

Brexit and its effects on safety

The news is full of Brexit and the likelihood is that your sick of hearing about it!

In that case sorry, but I couldn’t resist responding to a few clients who have raised questions on how it might affect safety laws and regulation over the coming months and years.

In truth I think most people are agreed that its impact will be minimal, the UK has always been a leader in global safety and our progress with HS(G)65 and BS8800 leading into OHSAS18001 has cemented this.  However, there are a few areas which we might see some movement in as we move into a more independent regulatory stance…

Oh, and Brexit has already been used in a legal defence!  More on that below.

Brexit and Safety Legislation

As we said we do feel that there are some areas which may be affected by Brexit and these are the three key areas where we feel a change may occur;

  1. CDM 2015 (application to domestic projects)
  2. Working Time Directive (extension of opt outs)
  3. REACH regulations

I think the most likely and the most impactful of these three will be the CDM Regulations 2015.  The truth is that application of these regulations to the domestic sector was largely forced upon us by the EU, we’ve never applied HASAWA to domestic situations and were reluctant to do so at the time of the first mobile sites Directive in 1994.

Our subsequent failure to incorporate the domestic element of the European Directive into UK CDM Legislation is telling and is a good example of the UK not ‘gold plating’ EU Directives.  It also aligns with the governments red tape push and is an area where smaller builders and tradesmen could return to a position where they have less H&S legislative burden (as some might put it).

Will this actually happen?  Its very hard to say as so much remains unanswered at this stage but as we approach an election in 2020 its not unlikely – so watch this space.

Brexit used as defence in HSE Prosecution

Hard to believe but Brexit has already made its first appearance as part of the defence in a prosecution by HSE with Stone Superstore Ltd pleading that the fine sought by the prosecution of £250,000 for the death of one of their employees who will killed in an accident involving an overturned fork lift truck in 2010.

Claiming that the company would be struggling financially post Brexit the judge agreed to reduce the fine imposing a £40,000 instead.

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100

Posted by Roger Hart

Construction pays HSE over £4m in fees under FFI

Despite HSE insisting that its Fee for Intervention (HSE FFI) scheme is HSEnot intended to plug the hole in its finances caused by the reduction of its government grant recent figures show a 13% decline in enforcement notices (improvement notices and prohibition notices).  At the same time a 26% increase in the charges made under FFI has been made against the construction sector with fees from April 2015 to March 2016 reaching a record £4.22m

Some may be rightly concerned whilst others may be grateful to avoid having an enforcement notice issued against their business and the subsequent need to admit this to their client base (as its presence in the HSE Hall of Shame).

Whatever your particular viewpoint it does show that Fee For Intervention is on the increase and that construction and contracting businesses are being targeted.  As you will probably be aware all FFI is ‘in the Inspectors opinion’ and so good practice is important and base legal compliance may not be enough to protect you from fines.

As always, if you need more advice please contact your retained consultant.

Notices of Contravention (HSE FFI)

HSE issue invoices following a written Notice of Contravention sent to duty holders regarding ‘material breaches’ of the law found by HSE inspectors, HSE invoice data for the last three full year invoice is as follows:

April 2013 – March 2014 – 6960 invoices issued with a total value of £2,545,474. The average value of invoices issued is £366.

April 2014 – March 2015 – 6075 invoices issued with a total value of £3,1116,234. This represents a 21% increase in the total value of invoices issued over the previous period. The average value of invoices issued is £513 representing a 29% increase.

April 2015 – March 2016 – 6990 invoices issued with a total value of £4,220,972. This represents a 26% increase in the total value of invoices issued over the previous period. The average value of invoices issued is £604 representing 15% increase.

Enforcement Notices (HSE FFI)

Over the same period which shows that the number of enforcement notices issued in the construction sector has fallen.

April 2013 – March 2014 – the database shows 3625 prohibition and improvement notices issued by HSE construction teams.

April 2014 – March 2015 – the database shows 3244 prohibition and improvement notices issued by HSE construction teams. This represents a 11% fall in the number of notices issued.

April 2015 – March 2016 – the database shows 2713 prohibition and improvement notices issued by HSE construction teams. This represents a 13% fall in the number of notices issued.
Comment

The data suggest that the HSE Notice of Contravention and consequent inspection fee forms an increasingly important mechanism for HSE in securing compliance and improved standards of health and safety in the construction sector.

This is occurring at a time when use of formal Enforcement Notices (improvement and prohibition) is declining in the sector.

Posted by Roger Hart

HSE Fee For Intervention has been served on an individual worker

HSEWith almost 12 months elapsed since the introduction of Fee For Intervention (FFI) we have heard for the first time of an individual being fined under the scheme.

The individual was employed as a scaffolder working on a Carey Housing project.  The HSE Inspector was driving by the site when he noticed the scaffolder working without edge protection, or any other method that might prevent him from failing.

The Inspector spoke directly to the scaffolder and explaining what he had observed regarding the material breach which the scaffolder had made. The result was that the scaffolder was personally issued with an Enforcement Notice and fined £400.

The Project Manager was next to be interviewed and discussions took place with regard to the role of the Principle Contractor under CDM, training requirements, competency, safe systems ofwork (including review of the sub-contractor’s method statements and risk assessments).

Perhaps not surprisingly the Inspector’s opinion was that the method statement submitted needed to be made more site specific. The detail which was omitted was the method of protection the scaffolder would be using — this should not be “generic” or left entirely to the scaffolder to decide upon but specified in writing.

No action taken against Careys, as the Principal Contractor, on this occasion, as the Inspector was, in general, pleased with what he had seen at site. However, the Inspector warned that individuals are being targeted and will continue to receive fines and an Enforcement Notice from the HSE if they break the law.

Examples of material breaches could include but are not limited to; failing to wear PPE, operating plant and equipment without the relevant training, failing to adhere to the method statement and risk assessments (RAMs), or for altering scaffolds if you are not trained.

The lesson?  Use your RAMS as working documents – this is how our documents have always been produced.  If you need help updating your own please call us for a clear and competitive cost.

About: Roger Hart  is Managing Director of Outsource Safety Ltd, a consultancy specialising in ISO9001, ISO14001 and OHSAS18001 Management Systems.  The company employs 10 staff and works for hundreds of retained clients across the UK in all sectors from Defence and Aerospace to Education and Museums with a specialism in the contracting, construction and renewables sectors, www.outsource-safety.co.uk

 

Posted by Roger Hart