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Legal case

There have been a number of recent cases where the courts have decided to hand down immediate and suspended custodial sentences.

Scope of legal duties

The Health and Safety at Work etc. Act 1974 (HSWA) sets out the duties of employers to protect employees and third parties against risks to their health, safety and welfare. Where a duty holder fails to comply with their health and safety responsibilities, a prosecution can be brought if there is sufficient evidence for a realistic prospect of conviction and it is in the public interest to prosecute.

Section 7 HSWA permits prosecution of individuals where it can be established that they have not discharged their health and safety duties with reasonable care or where they have failed to cooperate so far as is necessary to enable a duty to be carried out safely.

Section 37 HSWA provides that, if an organisation commits a health and safety offence, then its directors or officers can be prosecuted (alongside the corporate body) where the offence can be shown to have been committed through the consent, connivance, or neglect of the individuals subject to the prosecution.

Prosecution data

The overall frequency of health and safety prosecutions has fallen year on year but we have seen a recent increase in health and safety investigations progressing to prosecution, which may be a result of the efforts to clear the backlog of cases caused by the pandemic. In the early days of the pandemic, the legal sector experienced a great slowing down, but it now appears to be edging towards pre-pandemic levels of productivity across the whole field.

Unfortunately, no data is available for the current calendar year, but looking at the HSE operational data for 2020/2021, it is apparent that fines remain the most commonly imposed penalty (80% of cases) followed by suspended sentences (10%), community sentences (8%), and immediate custodial sentences, which occur in only a small minority of cases (2%). The most common breach leading to a custodial sentence concerned gas safety-related legislation.  

Recent cases involving the prosecution of individuals 

There have been several recent cases where the courts have decided to hand down immediate and suspended custodial sentences.

In the case of HSE v Ensure Asbestos Management Limited, the company was found to have deliberately cut corners in managing the dangers of working with asbestos and as such had put its workers at risk.

The company was fined £100,000. However, the court also sentenced the director, Billy Hopwood, to 10 months in prison along with disqualification from being a director for five years.

In addition, the Contracts Manager, Phillip Hopwood, was sentenced to 15 months in prison along with disqualification from being a director for 10 years. It seems that the custodial sentence was imposed due to the perceived expertise the pair had in the industry and that they had deliberately falsified documents and cut corners.

In another prosecution brought by the HSE, a site supervisor, Andrew Hughes, was given a four-month prison sentence suspended for 12 months and ordered to pay costs after pleading guilty to a breach of section 7 HSWA.

This related to an incident where an operative’s arm was caught in a waste picking line when it re-started whilst he was working on it. Mr Hughes was responsible for completing the permit for the repair work and isolating the line, but he became distracted and this was not undertaken.

The recent case of HSE v Philip McGinn demonstrates that there is a willingness for the HSE to bring criminal proceedings even in the absence of any injury being sustained.

Mr McGinn was responsible for running a roofing business and a member of the public reported concerns about some work being carried out without any scaffolding or edge protection. Mr McGinn received a thirteen-month suspended prison sentence, 200 hours of unpaid work, and was ordered to pay the prosecution’s costs.

Lessons learned

It is clear that whilst prosecutions of individuals for health and safety offences are much less commonplace than prosecutions of corporate bodies, in cases where there is clear evidence of acts or omissions on the part of an individual which have directly contributed to an incident, there is an appetite to prosecute.

When we are instructed at the outset of a health and safety investigation, we advise on the measures to take to seek to minimise the risk of criminal proceedings being commenced against any directors, senior managers, or employees.

In advance of an incident occurring, organisations should be reviewing their health and safety policies and procedures to establish how health and safety responsibilities are delegated and ensure that there is a clear understanding as to how such duties will be discharged in practice.

Health and safety is a collective responsibility and no one individual should be given ultimate responsibility for the operation of the organisation’s health and safety management system.

Our health and safety solicitors provide a comprehensive service to help ensure regulatory compliance, whatever your business.