Am I at risk of safety-related breaches impacting my business?

This business development briefing just provides an overview of the law in this area. You should talk to a lawyer for a complete understanding of how it may affect your particular circumstances.

Am I at risk of safety-related breaches impacting my business?

Yes - a conviction for safety-related breaches can have an immense impact on a business and the individuals within it.

Since 1st February 2016 higher fines can now be awarded in the magistrates' court for health and safety offences.

Recently a chemical company was fined £333,000 by magistrates and ordered to pay £110,000 prosecution costs. Approximately 4,500 people were asked to stay indoors for two to three hours as a result of the phosphorus and phosphine gas release

Is it a criminal offence?

Yes - It is a criminal offence to breach health and safety obligations. However, the implications for you and your business can be immense and costly.

• If someone dies as a result you may also face gross negligence manslaughter charges
• Fines are often in the hundreds of thousands of pounds for serious offences. In addition you will pay your own legal costs and the prosecutions’ legal costs.
• More companies now look carefully at the safety record of potential business partners The damage caused to the reputation of your business by a criminal conviction could last longer than the initial financial outlay.
• Your staff could be investigated, arrested and imprisoned. Inspectors routinely consider the role of individuals in workplace accidents and staff found guilty can face 2 years in prison and a fine. They will have to live with the stigma of a criminal conviction, restricting their ability to travel abroad or work in certain industry sectors.

Who can be prosecuted for safety offences?

There are a number of groups that can face prosecution for breaching health and safety requirements, these include:

• Employers (including limited companies, unincorporated associations, partnerships or individuals).
• The self-employed.
• Owners of premises used as a workplace.
• Individual employees.
• Designers, manufacturers, importers or suppliers of work equipment.

What factors will the HSE consider when deciding whether to prosecute safety breaches?

The main factors that the HSE considers will favour a prosecution, include; where:

• Death was a result of a breach of legislation.
• There has been a reckless disregard of health and safety requirements.
• Inspectors have been intentionally obstructed in the course of their duties.
• False information has been supplied, or there was an intent to deceive, in relation to a matter which gives rise to a significant risk.

You’re being investigated, how can you help yourself?

In less serious cases cooperation and assistance may help you and lessen the chances of prosecution. By co-operating with the regulator’s investigation, accepting an invitation to an interview under caution or by providing written answers to questions under caution you may avoid prosecution.

Insurance and criminal liability

• Check whether your insurance policy includes legal expenses cover in the event of an investigation and a criminal prosecution being brought against the business for a safety-related breach.
• You do not have to use your insurers chosen lawyer – you are entitled to be represented by a lawyer of your own choice and still have your costs paid by the insurer.
• Most policies cover defence legal costs. However, if several members of staff are also prosecuted, the cover may not extend to all of them. Check whether the existing policy includes protection for senior managers and directors.
• Although defence costs may be covered by such policies, any fine imposed on the business following conviction certainly will not be. Similarly, where the court orders the defendant to pay the prosecution’s reasonable costs in bringing the case, these costs are rarely covered by business insurance.

Health and Safety breaches have a wide ranging impact on the business. Think about how a serious breach could affect you and your business.

If you have any questions or enquiries about the law relating to health and safety at work or you are concerned about breaching the rules Graham & Rosen’s experienced business and litigation lawyers are here to help you. For more information contact Alex Green on [email protected] or Richard Palmer on [email protected]