Since the 2016 Health and Safety Sentencing Guidelines introduced penalties based on turnover, we’ve seen a steady rise in the level of fines facing organisations prosecuted for breaching health and safety legislation. Health and Safety Executive (HSE) data shows during the period 2019/20-2021/22 that while the total value of all fines has decreased the average fine per case increased by around 35%. This year, we have already seen media reports of five fines of more than £1million, matching the total for all of last year.
Aside from the financial impact of fines, health and safety prosecutions carry significant reputational consequences should they involve the serious injury or death of an individual and lead to headline-grabbing fines. But the most important factor is the human cost when someone is hurt or killed on your watch. There are potentially traumatic consequences for the victim, their loved ones, and those deemed to have failed to protect the victim’s health and safety at work. In addition, the emotional trauma of experiencing the serious injury or death of someone working for your organisation, individual directors, managers or employees within businesses need to be aware of their potential exposure to personal prosecutions, which may also be on the rise.
There have already been a notable number of successful prosecutions against individual directors and employees in 2023 reported in the public domain and we expect this figure may rise throughout the 2022/23 reporting period (due to the fact the reporting period runs until October during which time further personal prosecutions currently ongoing are likely to conclude with sentencing hearings at court).
This insight offers five ways to protect your organisation and its directors, managers and employees and avoid paying the potentially high price of becoming part of the HSE’s enforcement statistics.
In addition to keeping your people safe from a defensibility point of view it’s vital you ensure you have a comprehensive and up-to-date health and safety policy and suite of risk assessments. However, too often we see health and safety documents not being updated as companies grow. This means, for example, your company may have a risk assessment appropriate for a manufacturer with a single factory, not multiple manufacturing sites, or your health and safety documents may not refer to newer machinery, rendering the documented controls ineffective.
You may have up-to-date health and safety documentation but are your staff following the processes and controls these documents set out? If they are following health and safety protocols, how might you prove it?
Let’s say you had a risk assessment in your warehouse stating an activity needed to be performed by two workers in order to be executed safely. In reality, there aren’t always enough staff to ensure the activity is always a two-person job but it’s performed anyway. If an individual working alone were to expose themself to risk in performing the job, would the written evidence point to general failure in management and supervision, or a one-off incident? A good rule to work to is: If it isn’t written down, it didn’t happen.
Let’s say a risk assessment requires someone to check the guarding on a machine at the beginning and end of each shift. If someone were to be injured by that machine, you would want to be able to show an HSE Inspector you were recording these guard checks every time, and these were signed-off and dated.
If your written controls specify so-called ‘toolbox’ talks before each shift – short presentations to the workforce on a single aspect of health and safety – how are you recording these sessions? Are you also capturing confirmation the appropriate operatives attended? If you don’t have written evidence to answer these types of questions, you could be putting your workers, and your business, at risk.
It is crucial risk assessments are not generic; they need to specify the particular risks and control measures of a specific working activity.
Let’s say you have a risk assessment for transferring stock via forklift truck from a warehouse for transportation. These specify forklift truck drivers must avoid crossing marked-out pedestrian walkways. But some sites don’t have such walkways. If there was an incident where a forklift truck injured a pedestrian, your risk assessment would not evidence appropriate risk controls.
You should therefore ensure risk assessments are both site-specific and reflect other specific details, such as the staff and visitors on site. This means, for example, tailoring health and safety assessments based on the likelihood of contractors coming and going, or the extent to which processes are automated, or the frequency with which a particular machine requires cooling or disinfecting, for example.
You should carry out regular reviews of relevant documentation to ensure it isn’t generic and covers the specific realities of the workplace in question.
How does the leadership of your organisation know what’s really happening on the ground? How are they interrogating incidents and near-misses and are they seeking assurances the health and safety data they’re being presented with is robust?
These are all questions the HSE may consider should your organisation face enforcement action.
There are a number of ways to show health and safety is a genuine corporate priority. These include board minutes showing health and safety as a regular item at the top of the agenda, and board members displaying a questioning and proactive approach to issues such as near-misses or accident investigations. Is the board interrogating the data and making sure it presents a reliable version of what’s really going on?
Could your business show the HSE your workers are working within a safety culture, rather than one that prioritises getting the job done quickly?
Regularly ‘walking the floor’ allows risk and business leaders to proactively check whether a culture of safety is a reality. This is in addition to health and safety being led from the top and all the requisite documentation and processes flowing from this.
It’s worth remembering if the HSE finds your organisation has a culture where unsafe processes have been allowed to persist or go unchecked, this could result in more significant fines should you face prosecution.
Waiting for an incident to be the catalyst for a change in your health and safety culture can create significant human costs and hit the long-term financial performance of your business.
Risk managers can be the galvanising force for changes to your organisation’s approach to health and safety. You can do this by focusing less on the unfortunate symptoms of poor health and safety, such as fines and worker harm, and instead deal with the root causes. This will involve you reviewing not only at individual near-misses or accidents, but patterns and deeper-rooted cultural issues.
For expert help to prevent your business from facing enforcement action and to reduce its health and safety risk, get in touch.