KENT HEALTH & SAFETY GROUP
MINUTES OF 402nd MEETING
held on 7th April 2005 at Aylesford Newsprint.
1. The Chairman Welcomed Members, New Members and Visitors
J Snell Kita Ltd
Paul Durkin KCC – Social Services
Richard Pavey KHSG
R Mees AEM Ltd
Pete Hyland Burtons Medical Equipment Ltd
Dave Tyler Peninsula Business Services Ltd
Tony Whibley Barretts of Canterbury
K Bowcock AIMS (visitor)
Bob Hodsley NHBC (visitor)
Gary Smith NHBC
Peter Saunders Thanet District Council
Caroline Penwill HSE
B M Cannell J E Cannell
Natalie Batchelor St John Kent
Charles Ferguson KFRS
Jason Baker KFRS
Ray George EMCOR
Doug Chenery KCC Education & Libraries
Melvyn French Environment Agency
Carole Shepherd KCC
Stuart Markey RS&EAS
SallyAnne Clark KCC Education & Libraries
2. Apologies for absence
David Nicholson, Helen Bale, Debbie Hunt, Doug Baguley, Kate Williams, Chris Pike, Peter Siers, T Ross, Frank Pestell.
3. Title : Health and Safety Orientated Court Cases.
Speakers: Henderson Chambers.
1) Mediation and whistle-blowing – Steven Powles
A mediator has to guide both sides.
Inquiries after most major disasters have reported that somebody in the organisation concerned knew something was wrong, but did not come forward.
Would staff feel able to come forward or would they be victimised?
What criteria must an employee show to go forward and disclose? This depends on where the employee is going. To disclose to an employer, the criteria is that the disclosure is made in good faith; to go to the HSE he/she also needs to show a reasonable belief that the information is true; to go to the press the employee needs to show in addition that this is not for personal gain.
How do you promote a culture of disclosure? Perhaps there should be a written policy. If there is a policy, it will be harder for employees to go to the press.
2) Director’s personal responsibilities – Roger Eastman
The HSC is revitalising Health and Safety.
The prosecution of individuals is quite a rare event, but directors are much more in line for prosecution now. This is because of the blame culture and because there has not been enough change in the safety culture.
There are 1750 safety at work related prosecutions a year. 40-50 are prosecutions of managers and directors and about ¾ of these get convicted.
There is a new corporate manslaughter bill coming through.
What does the HSC expect a director to do? A director‘s responsibilities include Health and Safety. Each member of the Board is individually involved.
What happens if it does all go wrong or if the HSE does arrive on the doorstep? The HSE would be doing their job which would cost the company money. The company could potentially find itself at risk of enforcement notices which would result in more delay for the company. The enforcement policy of the HSE is clear; they will prosecute.
Whistle-blowers should not be ignored.
A magistrate’s court can stop somebody from being a director for 10 years, at crown court it would be 15 years.
You are required to co-operate with the HSE inspectors, but as soon as there is any chance of prosecution this changes and you no longer have to co-operate.
Following questions on whether consultants can be prosecuted, the reply was that a consultant can be prosecuted for offering negligent advice, but if a consultant offers advice and you choose not to take it, that is your problem, especially if there is a consultant’s report advising that something should be done.
There is a HSC leaflet ‘Directors’ responsibilities for health and safety’ available from the HSE.
3) Corporate manslaughter, the new bill – Oliver Campbell
The new bill was announced 2 weeks’ ago.
Under the current bill, the prosecution has to prove 5 things about the individual. That :
· He is the directing mind;
· He owed duty of care to the deceased;
· He breached duty of care;
· It was a gross breach;
· Causation.
It is very difficult to prove in a large organisation that one person is to blame. Since 1992 there has only been 6 successful prosecutions and all of them were of small companies.
Under the new bill, prosecution would have to prove 4 things. That:
· There was a duty of care by the company to the deceased;
· There was a management failure by senior management;
· There was a gross failure;
· Causation.
There would be 2 changes in the bill. There is no need to find the directing mind and it is not a single individual who is guilty of gross negligence, but a group of senior management who together are guilty of gross negligence.
In general a jury are more prepared to find a company guilty, than an individual.
Some other points about the new bill are:
· No immunity for government bodies;
· No proposed offence for contributing towards a manslaughter by the company;
· Duty of care is to be decided by the judge instead of by the jury.
More information on this new bill are to be found on the Home Office website. The deadline for comments on the bill is the middle of June.
4) What happens if it does all go wrong? – Adam Heppinstall
After a death or injury, the HSE do not just look at the obvious candidate (the employer), they also look at anyone else who might have been responsible.
The court gives fines accordingly. Fines are given in proportion to the crime and taking into consideration the size and financial position of the company. Various examples were given. There was one case where the structural engineer got the largest fine, even though the company was only the consultant of the project. In another, the main fine went to the scaffolding company and a lesser fine to the employer.
A lesser injury might not result in a lesser fine if the company showed a great degree of negligence.
Since 1955 anyone wanting a barrister had to go through a solicitor. However as from 6 July 2004, any member of the public can go to a barrister direct, without first instructing a solicitor.
Barristers can provide advice. Barristers are obliged to tell somebody if they think they need a solicitor. However from the moment a prosecution starts against somebody, they have to have a solicitor.
Anyone looking for advice from Henderson Chambers should contact the Senior Clerk.
Detailed information on some of the presentations was available at the meeting.
The Chairman thanked Henderson Chambers for their very interesting talk.
4 GENERAL BUSINESS:
4.1 Minutes of previous meeting and matters arising:
The minutes of the last meeting were agreed. Stuart Markey explained that the March meeting had been very poorly attended because of the snowy weather. The talk had been very interesting and he would like to rebook the speaker for a meeting next year. In future the status of meetings will be on the Group’s website www.khsg.ik.com
4.2 Correspondence:
There was no correspondence to report.
4.3 HSE update:
Caroline Penwill (the HSE representative) reported that the new Working at Height regulations came into force on 6 April. Information is one the HSE website. There is no limit to height any more. The codes of practice for different disciplines will be available later in the year.
Changes to CoSHH also took effect on 6 April and road transport working time regs on 4 April.
On the website there is a consultative document on RIDDOR and also on Health and Safety at work.
The HSE inspectors have now been divided into a construction group and a group for everything else. It is hoped that this will provide a more flexible approach.
4.4 Accidents and other dangerous occurrences of interest to other Members:
There were no reports of accidents or other dangerous occurrences. Stuart Markey reported that he had received a clock which he intended to present for the best report made at the AGM.
4.5 Any Other Business:
Stuart Markey had represented the Group at the environmental awards. These are open to members of the Group and their companies and will now have a safety aspect.
The next KHSG meeting will take place on 5 May at Aylesford Newsprint. After the AGM the speaker will be Steve Banfield from the HSE giving an HSE update.
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