Health and Safety: Regulatory, Compliance and Investigations Insights September 2021

Crisis Management: Do's and Don'ts

Read our essential Do's and Don'ts guide for effective crisis management

If you would like to find out more about DWF's award winning Crisis Response Service, please contact Mark Thompson. 

In the Spotlight: Company fined £6.5 million following death of 11 year old boy at freight terminal

A company operating an international rail freight terminal has been fined £6.5 million following the death of an 11 year old boy. Harrison Ballantyne gained access to the company's depot with his friends to retrieve a football where he was able to climb on top of a freight wagon stabled beneath Overhead Electric Line Equipment energised at 25,000 volts. Harrison Ballantyne received a fatal electric shock.

The company was found guilty of two offences under the Health and Safety at Work etc Act 1974 following a trial at Northampton Crown Court. The investigation by the Office of Rail and Road (ORR) found that the company had failed to assess the risk of unauthorised access to the terminal and had also failed to implement appropriate measures to prevent unauthorised access to a part of the site where there were frequent freight movements and overhead line equipment energised at 25,000 volts.

In sentencing the company, the judge found that culpability was High, there was a high likelihood of death and, given the number of children exposed to the risk, it was necessary to further move up a category. The judge considered the starting point as £4m with a range of £2.6m to £10m.

It was accepted that the company had carried out remedial work beyond that considered necessary, however the poor enforcement history taken with the failure to carry out steps identified years before Harrison’s death and the grave effect of Harrison’s death on at least three of the children present when he died, led the judge to conclude a fine of £6.5 million was appropriate.

In her sentencing remarks the  judge observed that “In contesting this matter the company did not take responsibility for what was, on the evidence at trial, a serious and obvious failure to prevent public access to a highly dangerous environment."

This fine is believed to be the largest health and safety fine since the fine imposed on Balfour Beatty Rail Infrastructure Services Ltd. following the Hatfield rail crash.

In the Spotlight: HSE Statistics 2021/21 - Work-related fatal injuries on the increase

The HSE recently released their provisional workplace fatality figures for 2020/2021, these figures do not include deaths resulting from fatal diseases (including COVID-19) and fatal accidents on non-rail transport systems. A brief summary of the key figures are below: 

Overall:

• A total of 142 workers were killed at work in Great Britain between 2020/21, it was thought that the number of workplace deaths would decrease in this period given the various changes to working environments due to the pandemic but surprisingly this is an increase of 29 from the previous year. 
• In terms of the long term picture however, the rate of fatal injury to workers has followed a generally downward trend that has broadly been flat in recent years. 
• A total of 60 members of the public were also killed in 2020/21 as a result of work-related accidents. This is significantly lower than previous years, which most likely reflects the lockdown restrictions that were in place for most of the year due to the pandemic.

Demographic:

• 97% of the worker fatalities in 2020/2021 were males, which is a similar proportion to previous years. 
• 68% of fatal injuries in 2020/2021 were to workers between the ages of 16 and 59.
• However, the figures highlighted the risk to older workers as 29% of the fatal injuries in 2020/21 were to workers aged 60 and over, even though such workers made up only 11% of the workforce.

Industry Sectors: 

• Continuing the trend from previous years, over half of fatal injuries to workers in 2020/21 were in the Agriculture, Forestry and Fishing and Construction sectors, contributing 24% and 27% of fatalities respectively. 
• However, when consideration is given to the differing employment levels between sectors, then the rate of fatal injury per 100,000 workers is greatest in Agriculture, Forestry and Fishing and Waste and recycling, with the rate of fatal injury being 20 times and 17 times higher than the average across all industries respectively. 
• The number of fatal injuries in 2020/21 for many of the main industry sectors is higher than the annual average over the last five years, only Waste and Recycling and Transportation and Storage saw a decrease in numbers.

Type of accidents: 

• Falls from height, being struck by a moving vehicle and being struck by a moving (including flying or falling) object continue to be the three main causes of fatal injury in 2020/2021, contributing 25%, 18% and 12% of fatalities respectively. Between them they have accounted for over half of all fatal injuries each year since at least 2001/02.

Sources:

• https://www.hse.gov.uk/statistics/fatals.htm 
• https://www.hse.gov.uk/statistics/pdf/fatalinjuries.pdf 

In the Spotlight: Building Safety Bill Introduced in the House of Commons

On 5 July 2021, the Government introduced the Building Safety Bill in the House of Commons.

The Building Safety Bill will implement recommendations made in Dame Judith Hackitt’s ‘Building a Safer Future’ report which highlighted a need for significant cultural and regulatory change. The Bill also paves the way for the official formation of an independent Building Safety Regulator (BSR).

The Government has described the Building Safety Bill as an "overhaul" in the regulations and the next step in "ground-breaking reforms" to give residents and homeowners more rights, powers and protections making homes across the country safer. 

Under the new Bill, building owners will be required to manage safety risks with clear lines of responsibility for safety during design, construction, completion and occupation of high rise buildings. The Bill also sets out the requirement for a "golden thread of information" with safety considered at every stage of the process. Those who do not meet their obligations may face criminal charges. 

The Bill will also have in impact on the industry as a whole and will include powers to strengthen the regulatory framework for construction products, underpinned by a market surveillance and enforcement regime led nationally by the Office for Product Safety and Standards (OPSS). The national regulator will be able to remove products from the market that present safety risks and prosecute or use civil penalties against any business that breaks the rules and compromises public safety.

To read more on the Building Safety Bill, please click here: https://www.gov.uk/government/collections/building-safety-bill

The changing world of health and social care: CQC sets out its 2021 strategy 

The Care Quality Commission (CQC) has recently launched its new strategy for 2021 based on consultation with the public, providers of health and social care services, charities and partner organisations.

The new strategy is set out under four themes:

1. People and communities: regulation that is driven by people’s needs and experiences, focusing on what is important to them as they access, use and move between services.
2. Smarter regulation: a more dynamic and flexible approach that provides up-to-date and high-quality information and ratings, easier ways of working with CQC, and a more proportionate regulatory response.
3. Safety through learning: an unremitting focus on safety, requiring a culture across health and care that enables people to speak up and in this way share learning and improvement opportunities.
4. Accelerating improvement: encouraging health and care services, and local systems, to access support to help improve the quality of care where it’s needed most.

Under the new strategy, whilst on-site inspections will remain a vital part of regulation, the CQC has indicated it will move away from a set schedule of inspections to a more flexible, targeted approach using a range of regulatory methods, tools and techniques to assess quality and ensure an up-to-date picture. A further change will be seen in the way in which the CQC will provide information on quality, including ratings, so that these are more relevant, up to date, and meaningful. This will include updating ratings when there is evidence that shows a change in quality without always requiring an inspection in order to do this. The CQC will also move away from long reports written after inspections, and instead provide information and data to better meet the needs of all audiences, including people who use services.

The 2021 strategy is underpinned by the recognition that effective regulation to improve the quality of care depends on people’s feedback and experiences. The regulator will develop more ways to gather views from a wider range of people, including those working in health and social care, and will make it easier for people, their families and advocates to give feedback about their care and will provide a response on how this is used to inform regulation. The CQC will increase scrutiny of how providers encourage and enable people to feed back and how they act on this to improve their service.

The strategy also sets out how innovative analysis, artificial intelligence and data science techniques will be used by CQC to support proportionate decisions based on the best information available – ensuring that it will be ready to act quickly and tailor regulation to individual circumstances.

To read more about the CQC's 2021 strategy, please click here: https://www.cqc.org.uk/sites/default/files/Our_strategy_from_2021.pdf

HSE Prosecutions of Schools – An Education in Health & Safety?

In recent months, there have been a number of reported health and safety prosecutions of schools arising from both fatal and non-fatal injuries involving employees, members of the public and pupils. In each case, there have been failures on the part of the schools to appropriately identify the health and safety risks presented and address these in a suitable and sufficient manner. 

In January of this year, a high school governing body was prosecuted and subsequently fined after an employee fell from height whilst performing routine maintenance duties. A few months later, another school was fined after a worker fell from a ladder sustaining fractures to his face and other injuries. 

In March, a school was prosecuted and fined after a member of public tripped over a retaining wall after attending an evening performance and sustained a fatal head injury. Most recently, a high school was fined following the tragic death of a young child after an unsecured locker in a changing room fell on top of him causing fatal injuries.

Whilst it is widely acknowledged that schools are currently operating in a difficult environment given the challenges presented by COVID-19, these recent prosecutions serve as a timely reminder to schools and those within the education sector that ensuring appropriate health and safety arrangements and measures are in place is, at all times, an absolute priority.  

Speak to our specialist Health & Safety team for advice and guidance on how your organisation can take steps to ensure that risks are appropriately identified and managed.

UK Sentencing Updates

1. https://press.hse.gov.uk/2021/07/28/2781/
   
2. https://press.hse.gov.uk/2021/07/13/director-prosecuted-for-failing-to-comply-with-enforcement-notices/
   
3. https://press.hse.gov.uk/2021/07/29/company-and-director-sentenced-after-children-were-taken-ill-during-diving-lesson/
   
4. https://press.hse.gov.uk/2021/07/29/farming-partnership-fined-after-worker-suffered-multiple-factures/
   
5. https://press.hse.gov.uk/2021/07/22/employer-sentenced-after-worker-falls-30-feet-through-skylight/