Day two of Ergo Week and we’ve got another informing article, this time from lawyer David Egan from Irwin Mitchell LLP, discussing eight steps to avoiding prosecution under health and safety legislation. Also, get free access to try a range of our safety e-learning and risk assessment solutions. Click here to access these courses now.
Eight Steps to Avoiding Prosecution Under Health and Safety Legislation
Let’s get one thing straight from the start, I can’t guarantee to protect you from prosecution. What I will say, is that if you follow the advice below and make it part of your everyday operations, you stand a good chance of keeping your staff safe and healthy and your company out of court. But the responsibilities are yours.
So I’ll start by reminding you of something you already know. Under the Health and Safety at Work Act 1974, all employers owe their employees and other people who enter or are affected by their premises, a duty to do everything that is reasonably practicable to make the workplace safe and prevent risks to the health, safety and welfare of employees and others.
The Act (and the Regulations made under the Act) is enforced by the Health and Safety Executive and Local Authorities (depending on the relevant industry). As well as providing advice and enforcement notices, the HSE or LA can also undertake prosecution against companies or individuals. In addition to companies, directors or senior managers can also be prosecuted as individuals for health and safety failings. The stakes were raised in the Health and Safety (Offences) Act 2008. Individuals can now receive prison sentences for health and safety offences.
All employers must comply with health and safety obligations, regardless of the size of the organisation. If a company is prosecuted for health and safety failings, a fine will probably be imposed and extensive media reporting may follow. The negative publicity can be extremely damaging to the business reputation of the employer.
I’ve drawn up a list of eight steps that all responsible businesses should take to help reduce their exposure to risk and failing in their duty of care.
1. Identify risks
The first step in improving the health and safety within your business is to identify the risks to your business. This may be carried out by staff taking a walk around and inspecting the business premises and operations.
2. Actively manage risks
Following the walk around and inspection of the business premises, employers must ensure that risks that are identified are actively controlled and managed. Consideration should be given as to whether the risk can be eliminated or reduced. A review date should be put in the diary, to revisit the risk in the future.
3. Work with employees, contractors and the supply chain
A weakness in your supply chain may leave you exposed. You will need to work with employees to ensure that they are carrying out relevant supervision. If you use contractors, even where they are carrying out the work, you will still have obligations and health and safety duties.
4. Document your actions!
Always ensure that a precise and accurate written risk assessment is produced. The first question that an investigator will ask if an investigation is started will be, “Where is the risk assessment?” If an employer has no risk assessment, they leave the business open to criminal prosecution. As well as producing a written risk assessment, employers must ensure that the risk assessment is provided to relevant employees and reviewed on a regular basis.
5. Keep your policies and procedures updated
Having policies and procedures that comply with current legislation is vital. A legal health and safety audit will ensure that all references to legislation are up to date, and any required changes in policies and procedures are implemented.
6. Provide employees with information and training
Providing employees with health and safety training is vital when it comes to ensuring that they understand their health and safety obligations. Investigations will often focus on the information and training employees were given. It is critical that employees are properly trained and that documentary records exist to provide evidence of the training undertaken.
7. Create a positive health and safety culture
It can be a time consuming process to change the culture of a business. However, a consistent focus on health and safety risk assessment by senior management will eventually embed a culture of good health and safety management at all levels within the business.
8. Be aware of absolute obligations
Sometimes, doing as much as is reasonably practicable is not enough. Employers should be aware of relevant legislation that places an absolute obligation upon them. This includes a lot of current and recently introduced environmental legislation.
Good health and safety management can help to prevent injuries to employees and the public. It will also assist employers in avoiding prosecution, heavy fines and imprisonment, should an incident happen.
Being able to demonstrate that you did everything within your means to prevent that incident and protect your workforce and visitors gives you the best chance of staying out of jail. And the safest operations are the most efficient operations, so good health and safety does make good business sense.