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Understanding employer's liability - health & safety obligations

When employers neglect health and safety protocols, they endanger their employees and face repercussions. Accidents and injuries,  long-term health issues and fatalities may occur.  This has many implications for the company and directors. Additionally, it will have an impact on the workforce, and damage the reputation of the company. This can be a very stressful and difficult time for all involved.

Employers have a legal duty to ensure the health, safety, and welfare of their employees under the Health and Safety at Work Act 1974. This means providing safe premises, equipment, and systems of work, as well as adequate training and supervision.

The Health and Safety Executive (HSE)  enforces health and safety regulations and imposes penalties on employers for violations. Employers must protect their workers from harm, and failure to do so can lead to enforcement action by the HSE under criminal law.

The most recent Health and Safety Executive (HSE) statistics show that in 2022/2023, there were 135 workers killed at work, 561,000 non-fatal injuries at work according to self-reports, and 35.2 million working days lost due to work-related illness and workplace injury. The construction industry remains one of the most dangerous sectors in terms of health and safety, contributing to almost a quarter of all work-related deaths in 2022/23.

 

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Health and safety breach - typical stages

Identification of breach

The first stage involves identifying a breach of health and safety law. This can occur through various means, including inspections, incident investigations, complaints, or even from reports from employees, members of the public, or other stakeholders.

Initial assessment

Once a breach is identified, the HSE or other enforcement authority will conduct an initial assessment to determine the severity of the breach, the risks posed to workers or others, and the appropriate course of action.

Investigation

If the initial assessment indicates that further investigation is warranted, the HSE or enforcing authority conducts a detailed investigation into the breach. This may involve gathering evidence, interviewing witnesses, reviewing documentation, and assessing the circumstances surrounding the breach. In a Health and Safety investigation both the employer and the employees will be involved.

Notification

Under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), duty holders must report certain serious workplace accidents, occupational diseases and specified dangerous occurrences (near misses) to the HSE. The HSE does not investigate everything that is reported to them, only the most serious work-related incidents, injuries or cases of ill health. It does, however, consider all health and safety concerns and makes risk-based decisions when deciding what actions to take. Employers or duty holders responsible for the breach may be formally notified of the alleged breach and the enforcement action being taken by the HSE or enforcing authority. This notification may include details of the specific health and safety regulations that have been breached and the actions required to address the breach.

Enforcement action

Depending on the severity of the breach and the circumstances surrounding it, the HSE or enforcing authority may take various enforcement actions. This can include issuing improvement or prohibition notices, initiating prosecutions, or taking other regulatory action to address the breach and prevent future occurrences. The most common penalty for health and safety breaches is a financial penalty. Fines can range from hundreds to thousands of pounds, and in more severe cases, they can be unlimited. HSE inspectors have the power to issue prohibition notices, which prohibit certain activities or practices until safety concerns are addressed. Breaching a prohibition notice is a criminal offence and can result in further penalties.  Similar to prohibition notices, improvement notices require the recipient to take specific actions to rectify health and safety deficiencies within a specified time frame. Failure to comply with an improvement notice can lead to prosecution.

If the offence is serious, prosecution will result. Sentencing for health and safety breaches resulting in imprisonment follows guidelines set by the Sentencing Council. The guidelines consider the severity of the offence, the culpability of the offender, and any mitigating or aggravating factors.

Resolution and compliance

Employers or duty holders are required to take prompt action to address the breach and achieve compliance with health and safety regulations. This may involve implementing corrective measures, making improvements to work practices or procedures, providing training or resources, or taking other actions as required.

Monitoring and review

Following resolution of the breach, the HSE or enforcing authority may conduct follow-up monitoring and review to ensure that the necessary corrective actions have been taken and that compliance with health and safety regulations has been achieved. This may involve further inspections, audits, or assessments to verify ongoing compliance.

How can we help?

Stephensons can offer guidance and representation throughout the various stages of a breach investigation. Early involvement is key, but we can offer representation at any stage. At Initial assessment we can provide advice and guidance following the identification of a health and safety breach, helping you understand your rights and obligations. We can advise on the severity of the breach and what steps to take. During the investigation stage, we can provide legal representation and support. We will liaise with investigating authorities, respond to inquiries, and assist in gathering evidence and preparing a defence. If the breach results in formal notification from the Health and Safety Executive (HSE) or other enforcing authority, we will ensure an appropriate response and draft communications or documentation We will review the allegations and enforcement action being taken and provide guidance on the legal implications and potential consequences.

If enforcement action is taken we will talk to you about the options available and help formulate a response. Stephensons can assist in challenging the enforcement action, negotiating with authorities, or appealing decisions through the appropriate channels.

Where appropriate we will provide guidance on the steps needed to address the breach and achieve compliance with health and safety regulations. This may include implementing corrective measures, drafting policies and procedures, and providing training or resources to prevent future breaches.

Following resolution of the breach, our regulatory team can help monitor ongoing compliance with health and safety regulations, providing guidance on best practices and helping to identify any potential areas of risk or concern.

We have a network of professionals who can conduct internal audits or reviews to ensure that the necessary corrective actions have been taken and that compliance has been achieved?

We will aim to mimimise future breaches and mitigate the penalties.

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