Health and safety update – recent legal developments by Amy Taylor

In this Health and Safety Update, Amy Taylor discusses recent health and safety cases,  the most expensive health and safety fines of 2022 and the past and future strategy of the HSE.

The 2021/2022 statistics from the Health and Safety Executive (“HSE”) highlight the massive strains being placed on the UK workforce from a health and safety perspective and the devastating consequences of poor practices.

• 1.8 million working people suffering from a work-related illness, which includes work-related stress, depression, anxiety, musculoskeletal disorder and COVID-19
• 123 workers killed in work-related accidents
• 565,000 working people sustained an injury at work according to the Labour Force Survey
• 61,713 injuries to employees reported under RIDDOR

Some recent health and safety cases
London Fire Commissioner v Bupa Care Homes (ANS) Ltd [2022] EWCA Crim 1508
The defendant company, BUPA Care Homes (ANS) (“BUPA”), was prosecuted by the London Fire Commissioner for breaches of the Regulatory Reform (Fire Safety) Order 2005 following the death of Cedric Skyers on 13 March 2016 at one of its care homes. Mr Skyers, a wheelchair user, tragically died after he caught fire while smoking unsupervised in the garden of his care home. The Court of Appeal refused a renewed application by BUPA for permission to appeal a fine imposed by Southwark Crown Court. The Crown Court judge’s finding that the care home’s accepted failures were causative of Mr Skyers’ death was upheld. BUPA was fined £937,000 and ordered to pay £104,000 towards the prosecution costs. This is the highest fine imposed concerning fire safety to date.

R v CMB Supply Ltd [2022] 6 WLUK 664
This case involved one fatality and injury to others following the release of anhydrous ammonia gas in the refrigeration plant at a brewery. The offending company pleaded guilty to breaches of sections 2 and 3 of the Health and Safety at Work etc Act 1974 and regulation 3(1) of the Management of Health and Safety at Work Regulations 1999. The sentencing guideline for health and safety offences defines “large” organisations as those with a turnover or equivalent of £50 million and over, and there is no specific definition for “very large” organisations. In this case, the defendant’s turnover was £98.98 million, roughly double the upper limit of the turnover identified for a “large” organisation. Nevertheless, it was treated as a “large” organisation. The court emphasised that the threshold for a “very large” organisation was one whose turnover “very greatly” exceeds the threshold for a “large” organisation. The substantial excess above the threshold is to be considered when arriving at the appropriate fine.

R v Places for People Homes [2021] EWCA Crim 410
In this case, a community benefit society was convicted for failing to ensure the health, safety and welfare of its employees in relation to the risks associated with the use of vibrating tools and equipment under section 2(1) of the Health and Safety at Work Act 1974. The Court of Appeal reduced the fine by one-third (to £400,000) to reflect the impact on vulnerable beneficiaries, as the offending company was in an equivalent position to a charity and the greater the fine the more the potential beneficiaries of its activities would suffer. Regarding the categorisation of the company, the court noted there is no bright dividing line between “large” and “very large” organisations. Organisations are to be considered on a spectrum of size, not according to distinct categories. As per the sentencing guideline, the steps ought to be followed and the larger the company the greater the fine may need to be, taking into account factors such as whether the fine is proportionate to the organisation’s means, it constitutes adequate punishment and it brings home to management and shareholders the need for regulatory compliance. This case illustrates the importance of addressing the whole of the organisation, not just the turnover. The extent to which any increase in fine is required will depend upon the particular circumstances of each case and is not something for mechanistic extrapolation.

R v Nestle UK Ltd [2021] EWCA Crim 1681
The offending company pleaded guilty to one count of failing to prevent access to dangerous parts of machinery, contrary to regulation 11 of the Provision and Use of Work Equipment Regulations 1998, and was sentenced to a fine of £640,000. It was held that save in exceptional circumstances, the sentencing judge should not have any regard to questions of blame or fault on the part of an employee. Introducing into a sentencing exercise questions of strict liability or concepts of foreseeability is unnecessary and undesirable. The sentencing guideline deliberately avoids all such complexities. The Court of Appeal held the sentencing judge was entitled to move up within the category range as a result of the likelihood of actual harm and was entitled to do that without needing to resolve any factual dispute as to precisely what the employee was doing at the time of the accident. The sentencing judge’s uplift – doubling of the starting point from £500,000 to £1 million to reflect the high turnover and previous conviction – was justified.

The top 5 most expensive health and safety fines of 2022

• Northern Gas Networks Limited: £5m + £91.5k costs
• Boulby Mine: £3.6m
• Cleveland Bridge UK Limited: £1.5m + £29.2k costs
• Dyson Technology Limited: £1.2m + £11.5k costs
• Siemens Energy Limited: £900k + £6.3k costs

Going forward
The HSE has put the reduction of work-related ill health, with a specific focus on mental health and stress, at the centre of its 2022-2023 strategy. This year could be the year we see the HSE take enforcement action in relation to work-related ill health risks. The duty to ensure, so far as reasonably practicable, the mental as well as physical health of employees and other workers (which includes contractors) is not a new duty. However, the enforcement action of regulators has, until now, been focused on risks to physical health and safety.

The HSE undertook 290 criminal prosecutions in 2021/2022 (up from 199 in 2020/2021) and had a 96% conviction rate. We will likely see a further increase in enforcement activity in 2023. The increasing rate of prosecutions, as well as the high fines being imposed, will hopefully encourage organisations to be proactive in improving both physical and mental health and safety practices.