It’s not hard to find examples of vets in trouble for breaching health and safety laws. A 2005 case saw a former partner at a practice in Launceston, Cornwall, fined £3,000 and ordered to pay £6,000 in costs after he allowed humans to be X-rayed (BBC News, 2005). More recently, there was the 2014 prosecution of a specialist practice after workers were potentially exposed to harmful substances found in chemotherapy drugs prepared at the practice over four years. That practice was fined £35,000 and ordered to pay £50,378 in costs (BVA, 2014), and then there was a second incident that year in which a director of a veterinary practice in Maidstone, Kent, was prosecuted for allowing an employee to X-ray her foot. That director received a conditional discharge and was ordered to pay £1,296 costs (Maidstone Magistrates Court, 2014).
Without delving into each of these examples, it’s clear that health and safety law is now central to commercial success, but this wasn’t always the case. Myths have become entrenched in operations, leaving some unable to tell fact from fiction. But as soon as an incident occurs, management quickly sees the myth-based traps they have just walked into. In seeking to counter some of these myths, five senior lawyers from Eversheds Sutherland gave their views on why these myths should be debunked.
Myth number one: We can delegate our liability to our contractor
Many businesses see the attraction of using contractors, but for Phil Crosbie, the ability to pass on liability is not one of them. Phil has observed that for decades there have been prosecutions of those that have failed to properly manage contractors. As he explains: “The use of contractors forms part of a client’s ‘undertaking’ – that is, the way it runs its business – and therefore invokes a duty of care under section 3 of the Health and Safety at Work etc Act 1974.”
“The use of contractors forms part of a client’s ‘undertaking’ – that is, the way it runs its business – and therefore invokes a duty of care”
The natural question is that if the appointment of contractors does little to mitigate liability, why use them at all? There are, of course, two good reasons – contractors are often the experts in what they do and contractors may be able to “bulk-buy” labour in a way that a client cannot. Nevertheless, Phil sees a conundrum – accepting a duty of care in a situation when the client does not have the expertise and/or the resources necessary to provide constant specialist support. Helpfully, he says that “the legal duty of care requires clients to do only what is ‘reasonably practicable’”. To this he adds: “There is an acceptance that clients need to rely on the expertise of a contractor in the right circumstances and that a client may need to trust a contractor to ‘do the right thing’ when they are not around.”
As to what is regarded as “reasonably practicable”, Phil points to what has been laid out by the Health and Safety Executive (HSE) – the need to plan work appropriately; select the most suitable contractor; ensure the contractor is provided with the right information; provide suitable monitoring and supervision; and regularly review the contractor’s performance.
Myth number two: Mental health at work isn’t regulated
In the last few years, awareness and education around mental health and well-being has improved societal attitudes. This, according to Sarah Valentine, an assistant coroner for the Inner South London circuit, “has assisted in reducing the stigma and prejudice associated with these unseen illnesses; the shift in attitudes has encouraged organisations to direct focus on the ‘health’ in health and safety management”. None of this should be new to management for, as Sarah says, “ensuring workplace health, safety and welfare has long been a requirement under 1974 legislation. And organisations have a duty to assess levels of work-related mental health issues and implement measures to remove or reduce identified risks as far as reasonably practicable.”
“Organisations have a duty to assess levels of work-related mental health issues and implement measures to remove or reduce identified risks”
She details how guidance from the HSE focuses on work-related stress but also acknowledges that work can aggravate pre-existing conditions and can bring on symptoms or make them worse. “Organisations”, says Sarah, “often fail to address these risks and, frequently, well-being in the workplace is forgotten.” She continues, noting: “This absent-mindedness can have far-reaching consequences. Statistically, the number of suicides has increased year on year since 2013. As an unnatural death, they are referred to the coroner’s service for investigation.”
Sarah tells how, in her work, enquiries will often extend to the suitability and implementation of workplace well-being frameworks when considering such cases: “A focus on training, signposting of services, disciplinary communications and line manager check-ins to consider workloads and concerns are all matters that I would seek to explore.” And if there are inadequate procedures and assessments, and failures in training managers and educating the workforce on mental wellness, she warns that an organisation may find itself subject to a Prevention of Future Death report.
Myth number three: Only businesses that don’t care about health and safety have accidents
Any organisation can have an accident and as Amy Sadroknows, they happen when a series of events or circumstances come together. Referring to what is known as Reason’s Swiss cheese model, Amy explains that “an organisation that prioritises health and safety will often have more layers of defence to those factors lining up, but it does not mean that they cannot or won’t line up”. As she says, “No employer can eliminate all risks – as in life, they exist in work, and are to be managed and minimised… even the best workplaces are vulnerable to unwanted events, and sometimes the events that lead to an incident are only a hair away from no incident happening at all.”
“It is so important for organisations to regard health and safety as an ongoing business-critical risk, monitored at the highest levels and periodically revisited”
So why do incidents happen? To answer, Amy says there is never usually one reason, but there is usually complacency, stagnation or a belief in workplace culture that the health and safety job is done. That is why she says that “it is so important for organisations to regard health and safety as an ongoing business-critical risk, monitored at the highest levels and periodically revisited.” In her view, “the real measure of an organisation is how it evolves its culture after an accident to make what is an awful situation into one which puts health and safety at the heart of everything it does.”
Myth number four: Good health and safety advisers just tell people off when things go wrong
Catherine Henney thinks references to health and safety conjure up negative stereotypes. “Quite often”, she says, “this includes descriptors about health and safety advisers being ‘fun spoilers’, ‘killjoys’ or ‘bureaucrats’”; however, in Henney’s view, “it’s an unfair, misleading and unhelpful myth that needs busting”. She referred to 1972 when Lord Robens published his report on health and safety regulation in the UK, written in the wake of the Aberfan disaster six years earlier: “The report recommended wholesale revisions to the old Factory Inspectorate regime which led to the 1990s introduction of new health and safety regulations, and an increase in corporate governance, leadership and a standards-driven approach to health and safety.”
Further, Catherine notes, “the Management of Health and Safety at Work Regulations 1992 introduced responsibilities upon employers to carry out risk assessments and health surveillance, as well as requirements relating to the sharing of information with employees, and competence, capabilities and training.” Turning to the role of the health and safety adviser, she says it is there “to assist organisations in implementing strategies and control measures that appropriately address risks arising in the workplace, and to ensure that hazards are controlled”. Notably, she says the regime requires advisers “ensure that all employees understand the health and safety systems in place within the business: importantly, why and how these are designed to protect them, and what they must do to protect themselves”. The role necessarily requires “engagement and cooperation with the workforce, to secure their buy-in to those safety arrangements, and thereby encourage compliance with the organisation’s safety policies and procedures,” she continues.
Good health and safety management systems recognise that compliance cannot be achieved by “unilaterally imposing rules and seeking to enforce them”
From Catherine’s perspective, good health and safety management systems recognise that compliance cannot be achieved by “unilaterally imposing rules and seeking to enforce them”. They, therefore, seek to engage, discuss and involve the workforce in those rules and procedures.
Myth number five: Even if the HSE investigates we won’t be hit with costs unless it prosecutes
Following a conviction for a health and safety offence, the HSE will seek to recover its investigation and legal costs; however, it often comes as a surprise that it can also charge for time spent investigating matters that do not result in legal proceedings. Paul Verrico says that since its controversial introduction in 2012, “when the HSE inspects and identifies a material breach of the law, the company will have to pay a fee for intervention – FFI”. He details how work undertaken by the HSE is recorded on an hourly basis and includes the time spent identifying and providing advice to rectify the breach and the time taken to investigate and take enforcement action.
Paul explains that a material breach occurs when “the HSE inspector deems it to be serious enough to notify the company in writing”. That said, HSE inspectors are required to apply HSE guidance to their decisions, so any enforcement decision should be based on the principles of their enforcement decision-making frameworks. However, Paul says that “the subjective nature of the FFI regime has attracted much criticism. After all, if the breaches identified are not considered by the HSE inspector to be material, no FFI invoice will be issued for any time spent by the HSE.” He observes that many have labelled the scheme as unfair, arguing that “it was particularly unjust for the HSE to play judge, jury and executioner”. But having faced the threat of a Judicial Review in 2017, the HSE introduced an independent panel to decide invoice disputes.
Paul’s advice to companies is to carefully scrutinise FFI invoices upon receipt and raise any queries promptly with the HSE
Paul’s advice to companies is to carefully scrutinise FFI invoices upon receipt and raise any queries promptly with the HSE: “With a current hourly rate of £160, FFI invoices can be significant, particularly where multiple site inspections or specialist support is engaged by the HSE for complex issues.”
Summary
It’s very clear that health and safety law is taken very seriously by the HSE, and it should be considered in the same light by organisations. Practices and individuals that are in any doubt of their legal position should not gamble on the veracity of a myth.
