Health and safety (employees)
All businesses must ensure the health and safety of their employees, workers and visitors to their premises. Health and safety covers a range of matters from accident reporting, storage of chemicals, the provision of personal protective equipment or workwear, working hours and conditions, use of computer equipment, risk assessments and training. This section will look at health and safety in relation to employees.
- Advice on health and safety in relation to temporary workers.
- More detailed advice is available from the Health and Safety Executive.
As a Recruitment Business/agency, are we required by law to wear a face covering whilst at work?
Government announced on 28 November 2021, that from 30 Novemeber 2021, unless and individual is exempt, face coverings will be mandatory in certain settings, such as on public transport, in banks, post offices and hairdressers, to prevent the spread of the Covid-19 variant (Omicron).
Offices have not been included in this announecment, so it will not be a requirement for you or your employees to wear a face covering when at work as recruitment businesses/agencies typically carrying out their work in an office of some kind. However, if you or your employees visit any of the above places as part of work/during working hours, then the use of a face covering would be legally required.
If your recruitment business/agency is not based in England, please see face covering requirements for Northern Ireland, Scotland and Wales.
If it is our policy for all employees to wear a face covering whilst at work and one employee refuses to wear one can I terminate their contract?
Whether you can dismiss an employee (without risk) because they refuse to wear a face covering, will depend on the reason(s) why they refuse to wear one.
In the first instance , Government have not stated that face coverings are mandatory in office settings (please refer to FAQ: As a Recruitment Business/agency, are we required by law to wear a face covering whilst at work? for further information).
In addition, whilst Government guidance states wearing a face covering in an enclosed space can help to protect individuals and those around them from COVID-19, particularly if social distancing is not possible, they have also stressed, that face coverings should not be used as a substitute for the other more effective ways of managing workplace risks. For example, screens/barriers between employees, increased handwashing and staggered employee start-times. For further information, please see the Coronavirus health and safety guide for recruiters.
If you have made it a requirement for all employees to wear a face covering whilst at work, there a few factors you should consider before deciding to dismiss an employee for refusing to wear a face covering: These are as follows:
- whether your employee is exempt from wearing a face covering because they have a disability as defined under the Equality Act 2010, and if they do have a disability, whether you have considered your legal duties to provide them with reasonable adjustments. For example, allowing them to work from home, in another role with limited interaction with others, in a break out room, or allowing them to wear clear visor type face coverings or a face shield;
- if an employee has a disability which prevents them from wearing a face covering, whether the requirement to wear a face covering, outweighs your requirement not to discriminate on the grounds of disability because as per the Equality Act 2010:
- it is an occupational requirement
- the application of the requirement is a proportionate means of achieving a legitimate aim;
- the employee's length of service. If they have been employed for at least 2 years, they are protected from unfair dismissal and you should not dismiss them unless you have a fair reason to do so, i.e.,
- whether the employee's non-compliance amounts to insubordination and the refusal to wear a face covering is so serious that it can be classed as gross misconduct; and
- whether the health and safety of your other employees is largely at risk or completely compromised because of one individual who refuses to wear a face covering whilst at work.
If you are not based in England or Northern Ireland, but are based in Scotland or Wales, please see the Public Health guidance on face coverings in: Scotland and Wales, which will also assist you in determining on whether you can dismiss an employee for non-compliance.
Before you consider dismissing an employee for refusing to wear a face covering, you should consider all of the above and its strongly recommended that you seek legal advice before making a decision. You can call the REC legal helpline for guidance.
How should I manage health and safety?
The Management of Health & Safety at Work Regulations 1999 (MHSWR 1999) set out in detail the obligations on employers in terms of managing health and safety. As an employer you have a legal responsibility to protect the health and safety of your employees as well as other people, such as work-seekers and clients, who may be affected by their work.
In general, employers must:
- make the workplace safe and eliminate or control risks to health;
- ensure plant and machinery are safe and that safe systems of work are set and followed;
- ensure articles and substances are moved, stored and used safely;
- provide adequate welfare facilities;
- give workers the information, instruction, training and supervision necessary for their health and safety;
- consult workers on health and safety matters.
Risk assessments
Under the Management of Health & Safety at Work Regulations 1999 (MHSWR 1999) employers must carry out an assessment of the health and safety risks associated with their business to identify any measures necessary to control those risks. The assessment must be suitable and sufficient for the particular business. If the assessment requires health surveillances, this must be explained to the employees concerned.
The Health and Safety Executive (HSE) has produced useful guidance on how to conduct risk assessments. They have set out five steps to risk assessment:
- identify the hazards;
- decide who might be harmed and how;
- evaluate the risks and decide on precaution;
- record the findings and implement them (these must be recorded where there are more than 5 employees); and
- review the assessment and update if necessary.
Detailed guidance on the five steps is available on the HSE Website. HSE also provide Example risk assessments as well as guidance on how to carry them out.
Please note that for employed agency workers who are supplied to work at a client’s site (e.g. through a Regulation 10 (also known as Swedish Derogation) or Zero hours contract), the employment business should cooperate with the client to ensure the appropriate risk assessments are conducted.
Health and safety information and training
Employers must take into account an employee’s capability (with regard to health and safety) when assigning tasks to them. Employees must be provided with adequate health and safety training during working hours, which must be repeated where appropriate.
Once trained, employees must only use equipment in accordance with the training they have received and must inform the employer if any situation presents an imminent risk or where there are any shortcomings in the employer’s arrangements to reduce or control such risks.
An employee must be given updated information where there are any changes to working procedures, ways of working, work equipment or changes to the position itself. An employer should be aware that this may require additional training.
The Health and Safety Executive has detailed guidance on health and safety training, which is available on the HSE website.
Duties owed by employees
While at work all employees have a duty to take reasonable care of their own health and safety, as well as a duty to others who may be affected by their acts or omissions at work. They must co-operate with each other and their employer to enable the employer to perform and comply with all their health and safety duties.
Employees on fixed duration contracts must also be informed of any special qualifications or skills required to carry out the work safely and whether the job is subject to statutory health surveillance.
They must observe any health and safety policy that they are made aware of and take all reasonable steps to safeguard their own safety and that of any person who may be affected by their actions.
HSE provide detailed guidance on all aspects of health and safety.
Young workers
"Young Persons" are work-seekers under 18 but over the minimum school leaving age (i.e. they are 16-17 years old).
Employers must take particular account of the inexperience, lack of awareness and immaturity of young people in the work place. The Management of Health & Safety at Work Regulations 1999 (MHSWR 1999) states that a risk assessment for young people must be made before they start work, taking into account the following:
- the inexperience, lack of awareness of risks and immaturity of young persons;
- the fitting-out and layout of the workplace and the workstation;
- the nature, degree and duration of exposure to physical, biological and chemical agents;
- the form, range and use of work equipment and the way it is handled;
- the organisation of processes and activities;
- the extent of health and safety training provided or to be provided to young persons; and
- risks from agents, processes and work listed in the Annex to Council Directive 94/33/EC on the protection of young people at work. Some examples listed in the Annex include working with physical, biological and chemical agents as well as working with electrical hazards, gasses and objects containing explosives. The complete Annex can be found here.
Employers should record the results of the risk assessment together with any steps they have taken to reduce those risks.
Employers should be aware that certain types of work are prohibited for young persons unless:
- it is necessary for their training;
- they are supervised by a competent person; and
- any risk is reduced to the lowest level that is reasonably practicable.
The prohibited types of work are:
- work which is beyond their physical or psychological capacity;
- work involving harmful exposure to agents which are toxic or can cause cancer, heritable genetic damage or harm to an unborn child or which in any other way chronically affect human health;
- work involving harmful exposure to radiation;
- work involving the risk of accidents which it may reasonably be assumed cannot be recognised or avoided by young persons owing to their insufficient attention to safety or lack of experience or training; or
- work in which there is a risk to health from:
- extreme cold or heat;
- noise; or
- vibration.
HSE provide detailed guidance on health and safety for young workers.
Pregnant employees and new mothers
Regulation 16 of the Management of Health & Safety at Work Regulations 1999 (MHSWR 1999) states that all employers must carry out a risk assessment for new and expectant mothers. The risk assessments must ensure that there are no workplace risks which could do harm to either an expectant mother or her unborn child, or new mothers (a new mother is a mother who is breast-feeding or within 6 months of giving birth). They should make the results of the risk assessment available to the workforce and not just those who are pregnant or have recently given birth.
Risks could include:
- lifting or carrying heavy loads;
- standing or sitting for long periods;
- exposure to toxic substances; or
- working long hours.
Where the risk assessment identifies risks to the new or expectant mother and these risks cannot be avoided by the employer taking preventative or protective measures, then the employer will need to alter her working conditions or hours of work if it is reasonable to do so and would avoid the risks. Where no reasonable adjustments can be made the employer should:
- identify and offer the employee any suitable alternative work that is available, if this is not feasible;
- suspend the employee from work for as long as is necessary to protect her health and safety as well as that of her child. Under the Employment Rights Act 1996, the suspension should be on full pay.
The HSE has produced a risk assessment flowchart that can be used for pregnant employees and is available on their website.
Please note that for pregnant agency workers who are employed directly by an employment business and are supplied to work at a client’s site (e.g. through a Regulation 10 (also known as Swedish Derogation) or Zero hours contract), the employment business should cooperate with the client to ensure an appropriate risk assessment is conducted.
First aid
Under the Health and Safety (First-Aid) Regulations 1981, employers have certain obligations when it comes to providing first aid to their employees. The Regulations state:
- All employers must provide adequate first aid equipment for all employees who have become injured or ill at work (Regulation 3);
- All employers must appoint a suitable person to supply first-aid to their employees if they are injured or become ill at work (Regulation 3(2));
- All employers must inform their employees of the arrangements that have been made in connection with the provision of first-aid, including the location of equipment, facilities and personnel (Regulation 4).
Under Regulation 5, all self-employed people must provide their own first aid equipment so they are able to give first aid to themselves.
Further guidance on providing first aid can be found on the HSE website.
How can we control possible workplace risks?
This section of the Legal Guide gives a summary on the most common employer/employee health and safety queries we receive. These are:
- Use of display screen equipment;
- Working hours;
- Manual handling;
- Fire;
- Alcohol and drug misuse;
- Smoking at work;
- Stress;
- Bullying and harassment;
Display Screen Equipment
The DSE Regulations and how they affect individuals and employers.
The Health and Safety (Display Screen Equipment) Regulations 1992 (the DSE Regulations) require employers to minimise the risks for employees working with visual display units (VDU). The DSE Regulations require employers to:
- ensure workplaces and jobs are well designed;
- analyse workstations to assess and reduce risks;
- ensure workstations meet specified minimum requirements;
- plan work activities so that they include breaks or changes of activity;
- provide eye and eyesight tests on request, and special spectacles if needed; and
- provide information and training.
Who is affected?
The DSE Regulations apply where individuals habitually use VDUs as a significant part of their normal work. Other people, who use VDUs only occasionally, are only covered by the workstation requirements. However, their employers still have general duties to protect them under other health and safety at work legislation.
Do the DSE Regulations apply to homeworkers?
Yes, the DSE Regulations apply to employees working from home who habitually use a VDU for a significant part of their normal work. Similarly, workstations at home fall within the scope of the DSE Regulations regardless of who owns the equipment and furniture.
What do employers have to do to comply?
The DSE Regulations do not contain detailed technical specifications or lists of approved equipment. Instead, they set more general objectives. Employers have to:
- Analyse workstations, and assess and reduce risks.
In particular they need to look at: the whole workstation including equipment, furniture, and the work environment; the job being done; and any special needs of individual employees.
Employees and safety representatives should be encouraged to take part in risk assessments, e.g. by reporting health problems. Where risks are identified, the employer must take steps to reduce those risks.
- Ensure workstations meet minimum requirements.
These requirements include features that should normally be found in a workstation, such as adjustable chairs, adequate space and suitable lighting. They are set out in a schedule to the DSE Regulations and include screens, keyboards, desks, chairs, the work environment and software.
- Plan work so there are breaks or changes of activity.
As the need for breaks depends on the nature and intensity of the work, the DSE Regulations require breaks or changes of activity but do not specify their timing or length. However the guidance on the DSE Regulations explains general principles, for example short, frequent breaks are better than longer, less frequent ones. Ideally the employee should have some discretion over when to take breaks.
- On request arrange eye tests, and provide spectacles if special ones are needed.
Under the DSE Regulations a user should have their eye sight tests paid for by their employer. The term user is defined as “an employee who habitually uses display screen equipment as a significant part of his normal work;” Users can therefore ask their employer to provide and pay for an eye and eyesight test. This is a test by an optometrist or doctor. There is also an entitlement to further tests at regular intervals; the optometrist doing the first test can recommend when the next should be. Employers only have to pay for spectacles if special ones (for example, prescribed for the distance at which the screen is viewed) are needed and normal ones cannot be used. Employers are not expected to pay for tinted lenses, so called “VDU glasses” or designer frames.
- Provide health and safety training and information.
Employers have to provide information and training to ensure employees can use their VDU and workstation safely and know how to make best use of it to avoid health problems, for example by adjusting the chair. Such information should include the action taken to reduce risks and the arrangements for breaks. Users and operators are required to use any equipment properly and safely and in accordance with instructions given.
Further guidance on working with VDUs can be found on the HSE’s website.
Working hours
Working long hours has been connected to high levels of stress as well as physical and mental fatigue amongst workers, which can affect their health and safety at work. Employers should ensure that all employees are allowed to take the appropriate rest breaks in accordance with the Working Time Regulations 1998.
Consideration should be given to the amount of hours worked by temporary workers, even where they have signed a 48 hour opt out agreement. The HSE guidance outlines some practical steps that should be taken where long working hours are a consideration:
- working hours and shifts are not too long;
- employees get enough rest between shifts;
- employees don’t work too many night shifts in a row;
- employees avoid critical jobs at the ends of shifts or at ‘low points’ in the day or night e.g.3 am;
- shifts rotate ‘forwards’ that is, mornings, then afternoons, then nights;
- employees take quality rest breaks in their work;
- anyone can report fatigue problems;
- the environment doesn’t cause drowsiness (it is light with visual interest, not too hot and there is always variation in the level of sound);
- there are contingency plans to avoid overloading one person with overtime or double shifts; and
- incidents or accidents where fatigue may be responsible are thoroughly investigated.
REC legal guide on the Working Time Regulations 1998
Manual handling
The Manual Handling Operations Regulations 1992 (the MHOR) apply to a wide range of manual handling activities, including lifting, lowering, pushing, pulling and carrying.
Manual handling injuries can occur in any workplace, including your own office. Heavy manual labour, awkward postures, manual materials handling and previous or existing injury are all risk factors implicated in the development of musculoskeletal disorders (MSDs). More information and advice on MSDs is available on the HSE website.
The MHOR require employers to:
- avoid the need for hazardous manual handling, so far as is reasonably practicable (does the item need to be moved to do an activity or can the activity be done on the spot, can machinery be used to move the object?
- assess the risk of injury from any hazardous manual handling that can’t be avoided including assessing the physical suitability of the individual to carry out the task, the clothing and footwear the person is wearing and their knowledge and training in manual handling); and
- reduce the risk of injury from hazardous manual handling, so far as is reasonably practicable.
Employees have duties too. They should:
- follow appropriate systems of work laid down for their safety;
- make proper use of equipment provided for their safety;
- co-operate with their employer on health and safety matters;
- inform the employer if they identify hazardous handling activities;
- take care to ensure that their activities do not put others at risk.
Further guidance on manual handling is available from the HSE website.
Fire
The Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order) states that all employers are responsible for making sure their workplaces reach the required standard and employees are provided with adequate fire safety training. This training should include:
- induction training and general fire awareness;
- the action they should take if they discover a fire;
- how to raise the alarm;
- the procedures for evacuating the building safely;
- the location of firefighting equipment and how to use it;
- the location of fire escape routes;
- training to support people in fulfilling their fire safety duties (e.g. responsible person); and
- training towards competence (fire risk assessment, fire warden, fire extinguisher).
Periodic refresher training should be offered to all employees where there are any changes to fire procedures or there is a change in the degree of fire risk.
Employers are also required to comply with specific requirements in relation to firefighting equipment, fire detectors and alarms, emergency routes and exits and maintenance of all equipment.
Risk Assessment:
Under the Fire Safety Order, employers are required to carry out a detailed fire risk assessment which identifies any risks and hazards in the premises. The employer is also required to:
- consider who may be especially at risk;
- eliminate or reduce the risk from fire as far as is reasonably practical and provide general fire precautions to deal with any risk;
- take additional measures to ensure fire safety where flammable or explosive materials are used or stored;
- create a plan to deal with any emergency and where necessary record any findings;
- maintain general fire precautions and facilities provided for use by fire-fighters; and
- keep any findings of the risk assessment under review.
An employer with 5 or more employees must record the results of the fire risk assessment. The Department for Communities and Local Government has created an example of the form to use for recording significant fire risks/hazards.
Further guidance on fire safety can be found on the HSE‘s website.
Alcohol and drug misuse
Under the Health and Safety at Work etc Act 1974, employers have a general duty to ensure, as far as is reasonably practicable, the health, safety and welfare of their employees and workers. If a client knowingly allows an employee under the influence of excess alcohol to continue working and this places the employee or others at risk, then the employer could be prosecuted. Similarly under the Misuse of Drugs Act 1971, an employer who knowingly allows the production or supply of controlled drugs, including cannabis, will also be guilty of an offence.
All employers should therefore have a drugs and alcohol policy in place, they should also ensure that all their employees have not only been informed of the policy but also know where they can access it if they need to.
Employers should also ensure that they have a disciplinary and grievance procedure in place which adequately deals with employee drunkenness and the taking of non-prescription drugs.
- The REC disciplinary and grievance policy
- Further guidance on alcohol and drugs at work can be found on the HSE’s website
Smoking at work
Smoking in public places has been banned in the UK since 1 July 2007. This includes all offices, factories, shops, pubs, bars, restaurants, membership clubs, public transport and work vehicles that are used by more than one person. All employers may be prosecuted and fined if they fail to manage and control smoke free premises. Therefore, both temporary workers and employed agency workers will not be able to smoke on a client’s premises.
Stress
In 2018/19 44% of work related illnesses were stress related. Stress-related illness connected with work is increasingly the subject of substantial claims against employers through the courts and tribunals. In order to successfully claim damages for mental or physical injury caused by stress, the employee must show that the injury was foreseeable by the employer. Therefore, where stress risks are a feature of the job, employers should ensure a risk assessment is carried out and where complaints are made these should be dealt with quickly and investigated thoroughly.
Stress can manifest itself in different ways, however some symptoms may include:
Emotional symptoms:
- negative or depressive feeling;
- disappointment;
- increased emotional reactions - more tearful, sensitive or aggressive;
- loneliness, withdrawn;
- loss of motivation commitment and confidence;
Mental:
- confusion, indecision;
- difficulty concentrating;
- poor memory;
Changes from normal behaviour:
- changes in eating habits;
- increased smoking or drinking 'to cope;'
- mood swings effecting behaviour;
- twitchy, nervous behaviour; and
- changes in attendance such as arriving later or taking more time off.
Please note that this list of symptoms is non-exhaustive and some of these symptoms could be indications of other conditions.
Further guidance on work related stress can be found on the HSE’s website as well as an example of a stress policy.
Bullying and harassment
Bullying and harassment can be physical, verbal or increasingly via cyber activity (email or comments on social networking sites). Employees must be safeguarded against bullying and harassment at work and where the protective measures in place are inadequate, the employer may be held liable for a personal injury claim. Similarly the employee may be able to bring a harassment claim (where the unwanted conduct related to one of the protected characteristics) under the Equality Act 2010. Information on the protected characteristics under Equality Act can be found in the REC Legal Guide.
Employers must therefore ensure they have a bullying and harassment policy in place. The policy should include:
- statement about the company’s responsibilities regarding the elimination of bullying behaviour;
- definitions of what your organisation regards as standards of acceptable behaviour,
- examples of behaviour that will not be tolerated;
- information about how individuals can initially raise their concerns about bullying;
- the procedures that the organisation will follow for both the complainant and alleged bully; and
- information about the potential outcomes.
The person doing the bullying or harassment may be guilty of a criminal offence if it is done intentionally or is racially aggravated.
Further guidance on bullying and harassment can be found on the HSE’s website.
Should we have a health and safety policy statement?
Section 2 (3) of Health & Safety at Work Act 1974 states:
- all employers of five or more people must have a clear health and safety policy, which must be documented in a general written statement;
- this statement must be brought to the attention of all employees; and
- the policy statement must be revised where appropriate (e.g. change in working processes or work place equipment) with any revisions being brought to the attention of all employees.
(NB: For organisations with less than five people, it is not a legal requirement to have a written health and safety policy but it is best practice to do so.)
Health and safety risks and hazards will vary from employer to employer and from office to office. The policy statement should be tailored to an employer’s specific requirements and should reflect their determination to preserve and protect the health, safety and welfare of all employees (including persons not directly within their employment). The policy statement should deal in particular with:
- a statement of intent, which is a declaration of the employer’s commitment to providing a safe and healthy workplace and environment;
- arrangements for ensuring the safe use, handling, storage and transport of “articles and substances” which are inherently or potentially dangerous;
- the provision of comprehensive information, instruction, training and supervision, with the object of ensuring, so far as is reasonably practicable, the health and safety at work of every employee;
- the maintenance of a safe and risk free workplace and the provision of a safe means of entrance and exit to the workplace; and
- the provision and maintenance of a safe and healthy working environment with adequate welfare facilities and arrangements.
What do I need to know about Personal Protective Clothing (PPE)
The Personal Protective Equipment at Work Regulations 1992 (the PPE Regulations) state that employees must have suitable PPE whenever they may be exposed to a risk to health and safety whilst at work. PPE must be supplied and paid for by the employer and should not be charged back to the employee.
What is PPE?
PPE means all equipment and clothing which is intended to be worn or held by a person at work and which affords protection against one or more risks to health or safety.
PPE includes the following:
- aprons, gloves and safety footwear
- safety helmets
- high visibility jackets
- clothing designed to protect against adverse weather conditions.
- eye protectors, safety harnesses, respirators and life jackets.
- reinforced gloves provided to chefs to safeguard against injury.
PPE does not include:
- ordinary working clothes and work uniforms that do not offer specific protection;
- caterers’ overalls and similar clothing provided solely in the interests of food hygiene;
- any requirement under the Road Traffic Act 1988 for equipment to be worn on public highways (such as cycle and crash helmets) still applies, but they are also excluded from the PPE Regulations;
- shields, truncheons and “rape alarms” that are designed to protect a worker from a criminal act;
- Filters for display screens (including those that purport to protect against radiation) and so-called “VDU glasses;” and
- glasses with corrective lenses that are required under Regulation 5 of the Health and Safety (Display Screen Equipment) Regulations 1992).
Please note that employed agency workers who are supplied to work at a client’s site (e.g. through a Regulation 10 or Zero hours contract) may require PPE. The employment business should work with the client to ensure, where necessary, employed agency workers are given the appropriate PPE before they are supplied to the client.
The HSE has also published a short guide on the PPE Regulations which can be found on their website.
What are ‘Fees for Intervention?’
Under the Health and Safety (Fees) Regulations 2012, the Health and Safety Executive has, since 1 October 2012, had a legal duty to recover the costs it incurs in carrying out its regulatory function from those found to be in material breach of health and safety law. The ‘Fee for Intervention’ (FFI) will be used to recover the cost of the time that an inspector spends identifying the material breach, helping businesses to put it right, investigating and taking enforcement action.
What is a material breach?
Guidance produced from the HSE makes it clear that a material breach is:
‘when, in the opinion of the HSE inspector, there is or has been a contravention of health and safety law that requires them to issue notice in writing of that opinion.
Written notification from an HSE inspector may be by a notification of contravention, an improvement or prohibition notice, or a prosecution and must include the following information:
1) the law that the inspector considers has been broken;
2) the reasons for their opinion; and
3) notification that a fee is payable to HSE.
The written notification should also make it clear which contraventions are material breaches.’
The charge rate is currently £157 per hour and is not subject to any minimum or maximum amount. The fee is based on the amount of time the inspector has spent identifying the material breach, helping businesses to put it right, investigating and taking enforcement action, multiplied by the hourly rate.
Further guidance on the Health and Safety (Fees) Regulations 2012 can be found on the HSE website.
What is the significance of the Corporate Manslaughter and Corporate Homicide Act 2007?
The Corporate Manslaughter and Corporate Homicide Act 2007 (the Act) creates a new offence of corporate manslaughter (in England, Wales and Northern Ireland) or homicide (in Scotland) to apply to companies and other corporate bodies, including employment agencies and businesses. The Act renders organisations liable for prosecution if the way in which their senior management organises its activities causes a person’s death and amounts to a gross breach of the duty of care it owed to the deceased person. In other words, in cases where the negligence of an organisation leads to the involuntary killing of an individual, that organisation will be liable for prosecution under the Act.
What is meant by a relevant duty of care under the Act and what would constitute a gross breach of that duty?
Section 2 of the Act defines a ‘relevant duty of care’ as meaning “any of the following duties owed by it under the law of negligence:
- a duty owed to its employees or to other persons working for the organisation or performing services for it;
- a duty owed as occupier of premises;
- a duty owed in connection with:
(i) the supply by the organisation of goods or services (whether for consideration or not),
(ii) the carrying on by the organisation of any construction or maintenance operations,
(iii) the carrying on by the organisation of any other activity on a commercial basis, or
(iv) the use or keeping by the organisation of any plant, vehicle or other thing;”
In order for a gross breach of the duty of care to have been committed, an organisation’s conduct must have fallen far below what could reasonably have been expected of it.
Employment agencies and businesses should review their health and safety processes and procedures to ensure they are fit for purpose. However it should be noted that the Act does not set down any new statutory duties or regulatory standards with regard to health and safety. The offence under the Act relates to breaches of existing health and safety law and if found guilty, an organisation can expect one or more of the following: an unlimited fine, a publicity order (where the organisation or company is required to publicise that they have been found guilty of an offence) or a remedial order (an order to take steps to address any failures that led to death. The costs of defending a prosecution will normally be covered by insurance although this should be checked with your insurance providers. It is not possible to insure against statutory fines.
Liabilities or individuals:
Individual directors and senior managers are not liable for prosecution under the Act. The offence of corporate manslaughter/homicide is aimed at cases where management failures across an organisation cause a fatality. It will be the organisation that faces prosecution. However please note that individuals can already be prosecuted for gross negligence manslaughter/culpable homicide and for health and safety offences under existing legislation and the 2007 Act does not change this.
The Sentencing Council guidance states that fines for corporate manslaughter “will seldom be less than £500,000 and may be measured in millions of pounds.” The first prosecution for corporate manslaughter under the Act was in February 2011. In the case, a geologist working for Cotswold Geotechnical Holdings was responsible for taking some soil samples for a housing development. The pit he was collecting the samples from caved in burying him in earth and he subsequently died. Cotswold Geotechnical Holdings were found to be in gross breach of their company duty as they had failed to take all reasonably practicable steps to protect their employees from working in such dangerous conditions. Cotswold Geotechnical Holdings were found guilty of corporate manslaughter and were fined £385,000.
A more recent case saw Lion Steel Limited admit the charge of corporate manslaughter in Manchester Crown Court on 20 July 2012 in relation to the death of a 45-year-old employee who suffered fatal injuries when he fell through a fragile roof panel at the firm’s Hyde factory in May 2008. Sentencing, Judge Gilbart QC ordered the company to pay a fine of £480,000 and also ordered them to pay £84,000 towards the prosecution costs. Three of the company’s directors had come to an agreement with the Crown Prosecution Service whereby if they pleaded guilty to the offence of corporate manslaughter, they would avoid criminal prosecution for gross negligence manslaughter.
Further information can be found from: