November 2012 H&S Legal Update:
Another blow to business with legal costs changes to LASPO Act 2012:
The labour government often seen by business to be the least "business friendly" party started a review in legal aid trying to cap the amount that they would have to pay if a company was found not guilty of health and safety breaches in court. Often the government had to pay many times more than they would have had to have paid their own lawyers, as a company who wins their case was usually awarded all of their legal costs back. Labour was unsuccessful in making the changes in the law that they wanted.
The coalition government have used a different tactic and have amended schedule 7 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO.) The result of this is that companies and individuals found not guilty of offences including health and safety breaches will not be able to recover any legal costs. This new law came into force on 1st October 2012 the same time as the fee for intervention scheme which is discussed below.
Fee for intervention Scheme (FFI)
There is still some confusion arising from the new Fee For Intervention (FFI) scheme as to when a company will be required to pay for an enforcing officers time.
For any organisation to be in "material breach" of health and safety legislation is the official term which could instigate a fee.
What does that mean in lay terms: if the enforcing officer felt that you breach was so serious that they felt compelled to put it officially, in writing with in an official letter detailing the breach, an improvement notice, prohibition notice or to prosecute the company.
In our experience enforcing officers interpretation can vary from one officer to another but they are usually quite lenient unless an accident has already occurred or if they have not had to tell you about the exact same or similar thing in the past.
We have known some clients to have been informed by an enforcing officer, in writing, of things that must be rectified and then are surprised when 12 months later they get a return visit and are prosecuted for still not having rectifying the issues.
Remember enforcing officers, whether we are talking about the police, local council environmental health officer, local fire service, Health and Safety Executive or Environment Agency are very powerful individuals, if they have confidence in you and your organisation and feel that you are taking them seriously and don't show them contempt, they will usually be relatively lenient.
If they feel you are doing the opposite, have demonstrated animosity, bad feeling towards them or have ignored their advice, then that is a different matter!
Remember any enforcing officer has the power to close you business down, should they consider your breach is serious enough.
Some examples of material breaches:
- Safety guard missing off a machine exposing dangerous parts.
- Someone seen working at height unsafely (e.g. on roof without adequate fall or edge protection.)
- Someone using a piece of equipment for which they clearly do not have sufficient training to use.
- A piece of equipment not having a statutory inspection such as a fork lift truck (or other lifting equipment) not being inspected every 6 months (lifting people) or 12 months, as required under PUWER/ LOLER.
- A building not having a "suitable and sufficient" fire risk assessment and clearly problems with fire safety in the building such as fire alarm not working or fire extinguishers missing.
- A safe system of work not being properly implemented or obviously not safe (working on equipment without being safely isolated or locked.)
- Movement of vehicles on a site not being properly controlled (reversing without proper controls, such as trained reversing assistants.)
- Pedestrians not being properly segregated from vehicles around a workplace.
See article from SHP magazine for more details.