HSE Annual Report & Accounts 2022-2023
October 2023Earlier this year, we reviewed the Health and Safety Executive (“HSE”) 10-year strategy: “Protecting People and Places” (the “Strategy”). The Strategy was the regulator’s broadest strategy to date setting out 5 objectives to achieve between 2022 and 2032. The 10-year plan required significant investment to reduce work-related stress and improve mental health in the workplace. A summary of the Strategy can be found here. On 18 July 2023, the HSE Annual Report & Accounts 2022-23 (the “Report”) was published summarising HSE’s performance during 2022 to 2023, as well as other developments in the organisation which we consider as part of Beale & Co.’s Special Risks week.
2022 – 2023 was the foundational year of the 10-year strategy employed by the HSE during which the regulator expanded in size with the addition of 250 employees. The HSE recorded income over £90 million for 2022-23 and an increase of £40 million in terms of government funding, having obtained £172 million this year.
Overall, prosecutions for health and safety offences fell over the last year with 216 criminal prosecutions completed for breaches of health and safety with a 94% conviction rate. These figures are a reduction in the pervious prosecution figures with 290 prosecutions in 2021/22 and 361 prosecutions in 2018/19. However, the income received from prosecutions has decreased from £3,158 in 2021-22 to £2,956 in 2022-23, which suggests that there has been a reduction in the amount or level of Fees for Interventions and costs issued by the HSE in the last year.
Timely completion of fatal incident investigations continues to be the HSE’s highest priorities. The HSE completed 85% of fatal investigations within 12 months of primacy of the incident. In relation to non-fatal investigations, the HSE has exceeded their target by completing 95% of non-fatal investigations within 12 months of primacy of the incident through 2022-23.
Further, it appears that the HSE completed over 16,800 proactive inspections, which was a slight increase from the previous year. 2348 of these inspections were undertaken in the construction sector as part of the HSE’s health campaign focusing on ill-health in the industry which is caused by dusts, musculoskeletal problems and stress.
Despite the progress made with the HSE’s regulatory activities to ensure safer working conditions, the construction sector remains one of Great Britain’s highest-risk industries with a significant number of accidents and ill-health incidents occurring each year. On the whole, the Report highlights that severe health and safety challenges remain in the workplace including annual costs of £7.6 billion of work-related injury, a combined total of 36.8 million working days lost due to work-related ill health in 2021/22 and 0.9 million people suffering from work-related stress, depression of anxiety cases (based on self-reports from the Labour Force Survey).
In terms of performance, the HSE has delivered 89% of its milestones in terms of the number of inspections undertaken, evaluations and authorisations provided in relation to the safe and sustainable use of pesticides and biocides and complaints and the amount of people that received advice and guidance on health and safety through HSE resources.
Going forward, the HSE’s performance remains committed to evolving their regulatory processes to ensure that their focus is on tackling high-risk activities efficiently and effectively. A copy of the Report can be found here.
HSE Prosecutions
Prosecutions against corporations
Under the Corporate Manslaughter and Corporate Homicide Act 2007 (“2007 Act”), companies and organisations can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care. As the offence is concerned with corporate liability, the 2007 Act does not apply to directors or other individuals who have a senior role in the organisation. Prosecutions against individuals are instead pursued where relevant under gross negligence manslaughter offences, as explained below.
Prosecutions against individuals
Section 7 of the Health and Safety at Work etc. Act 1974 (“HSWA”) enables the HSE to prosecute individuals where clear acts or omissions have occurred in the workplace which means that the individual has not discharged their health and safety duties with reasonable care. Further, section 37 HSWA permits directors or officers to be prosecuted when an organisation commits a health and safety offence and it can be demonstrated that the offence was committed through the consent or neglect of the individuals subject to the prosecution.
Whilst HSE’s focus is on prevention of harm, the regulator will take enforcement action where evidence illustrates that duty holders deliberately fail to comply with the law. The types of enforcement action includes: providing information and advice face-to-face, serving notices on duty holders, withdrawing approvals, varying licences, issuing simple cautions and prosecutions. Any enforcement decision made by the HSE requires the appropriate exercise of individual discretion and professional judgment.
When a breach under HSWA has resulted in a work-related death, the HSE give consideration as to whether the circumstance surrounding the incident justify a charge of manslaughter or corporate manslaughter. In England and Wales, the police are responsible for deciding whether or not to pursue a manslaughter or corporate manslaughter investigation, however, if the HSE consider that evidence suggests either offence is relevant to the incident during their investigation of the health and safety offences, they will refer it to the police. In addition, where appropriate the HSE will seek disqualification of directors under the Company Directors Disqualification Act 1986.
Health and safety Prosecutions in 2022-23
Deco-Pak Limited
Deco-Pak was found guilty of corporate manslaughter and the managing director jailed for corporate manslaughter after an employee lost their life as a result of inadequate safety measures.
The employee was undertaking maintenance on a powerful machine, which had safety fencing removed to allow for cleaning or maintenance to occur whilst in operation. A gate was installed around the machine without an adequate interlock mechanism and light barriers to sense movement in the restricted area were in place albeit not working. The supplier of the machine had warned Deco-Pak about the risks of danger presented by these machines. The company director had received a report two months prior to the employee’s death highlighting the safety concerns of the machinery.
Deco-Pak was fined £700,000 and ordered to pay £90,000 in court costs for failure to discharge the employer’s general duty owed under section 2 HSWA contrary to section 33(1)(a) of the Act. Further, company director, Michael Hall, was found guilty of manslaughter by gross negligence and was sentenced to five years imprisonment.
Cleveland Potash Limited
Cleveland Potash pleaded guilty to offences contrary to sections 2 and 3 of HSAW and were fined £3.6 million and ordered to pay £185,000 in costs.
This prosecution concerned two arc flashes at the Defendant’s Boulby mine in Cleveland. The first occurred in August 2016, when an employee of contractor Electrical Power Engineering Services Limited suffered severe arcflash burns to their hands, arms and face, as a result of entering and starting to work within a live 11,000 volt BVP circuit breaker chamber. The second, in February 2019, occurred when a self-employed electrical contractor (sub-contracted to Engie Fabricom Oil, Gas and Power Limited) suffered severe arcflash burns to their neck, face, arms and hands.
Cleveland Potash’s managers and supervisors knew, or should have known, the equipment and their own electrical distribution system. They should have provided an appropriate written safe system of work and risk assessment and a permit to work should have been issued. Adequate supervision should also have been given.
Newcastle City Council
In January 2023, a local authority pleaded guilty to breaching their duty under section 3(1) of HSWA for failings relating to the death, in 2020, of a six-year-old schoolgirl who had been trapped under a tree that fell onto several children in a school playground. The investigation revealed the failed tree was inspected over two years prior to the incident and recommendations made for further detailed inspection of decay were not followed.
Issues around the communication and reporting of tree inspections to customers were also revealed by the investigation which formed the basis of the prosecution case. There was extensive media coverage, both locally and nationally, around the conclusion of the case – especially the impactful victim personal statement that was read to the court at sentencing.
The council was fined £280,000 and ordered to pay the prosecution costs of £8,020.
Comment
Health and safety law places duties on organisations and employers, and directors can be personally liable when these duties are breached. Therefore, members of the board have both collective and individual responsibility for health and safety within an organisation.
To promote good health and safety performance the HSE continues to advise organisations to ensure that strong and active leadership exists at the top, that the workforce is engaged in achieving and maintaining safe working conditions and that the health and safety risks within the workplace are continually assessed and reviewed. By following this advice and ensuring that safe working conditions and practices are in place, duty holders are more likely to reduce the risk of harm occurring in the workplace.
Beale & Co have extensive experience in dealing with HSE investigations for all the key duty holder roles. For further information on the issues addressed in this article and for assistance with any involvement with the HSE please contact Jo Lewis (j.lewis@beale-law.com or 02074690444).
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