Health and Safety Bulletin – August 2023

Welcome to this month's health and safety update. View the headlines below or click the pdf at the bottom of the page to read the full articles.

Fines and Sentences

Concrete Manufacturer fined £1 million after 'avoidable' death of worker

Creagh Concrete Products (CCP) Ltd was fined £1 million following the death of its worker, Stewart Ramsey, of 24 years of age, after he suffered fatal head injuries at work.

Mr Ramsey was using a metal grab to move some concrete product when he suffered the fatal injury in March 2017. Upon investigation, the HSE identified that the manufacturer had no safety systems in place and had not provided adequate training to the workers. Furthermore, the company had not carried out any risk assessments and the forklift truck that was being used was in bad condition. The HSE confirmed that neither the grab nor the forklift should have been used at that time.

The HSE inspector was quoted to have deemed the incident 'avoidable' and that "Stewart's death could easily have been prevented if his employer had acted to identify and manage the risks involved, and to put a safe system of work in place".

CCP Ltd pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc. Act 1974 and was fined £1 million in April. It was also ordered to pay costs of £47,521.08.

It is imperative that equipment is maintained to an adequate level to ensure employees are provided with adequate protection for their health and safety.

Unsafe asbestos removal results in director being jailed and £80,000 fine

In two decisions a month apart, a director was imprisoned, and his company was fined after they were found to have been removing asbestos in an unsafe manner across the UK.

Asbestos Boss Ltd had been issued with a prohibition notice in respect of unsafe practices, but despite this no remedial action was taken, and the company continued to carry out the removal of asbestos with minimal precautions or protections in place against the risks involved. In September 2021 Asbestos Boss Ltd removed an asbestos insulating board ceiling from an internal garage with little to no safety measures in place and left the waste on the road outside the property. During the investigation the HSE uncovered several similar cases being undertaken with little to no precautions taken. It was clear that the company were in breach of the relevant legislation including the Control of Asbestos Regulations 2012 (s.8(1) and 11(1)(a)) designed to protect its employees and continued to put them at risk.

Not only did the company continue to be in breach of the regulations and was fined £80,000 as a result, but it was also convicted of fraud. It had been using false training certification and trade association logos to represent the company as a legitimate and fully qualified asbestos removal company. After pleading guilty to all charges, Mr Cockroft, the company director/manager, was imprisoned on 10 March 2023 for ten months and was also ordered to pay compensation to the victims.

HSE Inspector Matt Greenly said: “Asbestos is a killer. Companies and their directors need to recognise the dangers of removing asbestos by themselves both to their employees and others. Asbestos removal should only be carried out by trained personnel who understand the risks and how to control them. Asbestos Boss Limited have deliberately removed a highly dangerous material resulting in a significant risk of exposure to cancer causing asbestos. They not only have put their customers at risk but have also undoubtedly put themselves, their workers, and their families at serious risk."

WorkRight, which is run by the HSE, launched a campaign called 'Asbestos & You', with the aim of explaining the risks of asbestos and how to correctly manage them. This includes a section which is specifically aimed at those who carry out non-licensed work that involves asbestos.

Pedestrian crushed by cow results in fine for farmer

Whilst on holiday with his wife, Mr Steve Adams was walking through a field in July 2021, along a public footpath, that contained over 20 cows and calves. Mr Adams was, at the time, with his wife and his dog that was on a lead. One of the cows threw Mr Adam into the air and then trampled him on the ground.

Whilst the injuries were not fatal, the HSE reported that Mr Adams sustained six broken ribs and damage to both his lungs and spleen, resulting in a seven day stay in the intensive care unit.

The farmer responsible for the cattle, Barry Fowler, pleaded guilty to breaching section 3(2) of the Health & Safety Act Work etc. Act 1974, which is a failure to ensure the health and safety of others affected by his undertaking and was fined £555. He was also ordered to pay costs of £3,000.

The HSE has issued guidance for farmers and/or landowners and livestock keepers, to ensure they understand all the risks involved in keeping cattle. The note also contains practical tips for managing risks for walkers, horse riders and cyclists.

Caretaker dies after falling from bike shed roof

On 3 August 2018, a school caretaker fell 2.5m onto a tarmacked surface whilst cleaning a bike shed roof. The HSE reported that Mr Mobsby had been cleaning the roof using a ladder, together with a standard-length broom and a telescopic surface cleaner.

Brighton and Hove City Council pleaded guilty to failing to ensure work at height was properly planned, appropriately supervised and carried out in a safe manner (Regulation 4(1) of the Work at Height Regulations 2005). The Council was fined £66,666 and had to pay £5,000 in costs.

The HSE inspector confirmed that falls from height are still a leading factor in accident statistics and Mr Mobsby's death "could have been prevented if his employer had acted to plan and supervise the work activity and ensured a safe method of work was in place".

Roofer jailed after worker fell more than 16 feet to death

In another decision relating to a fall from height, Mr Patrick McCarthy, trading as All Care Home Improvements, was sentenced to 14 months in prison after the death of one of his workers, Mr Andrei-Ionel Hutanu in 2019. Mr Hutanu died a week after suffering serious head and neck injuries following a fall of 16 feet onto a concrete floor.

Mr Hutanu had been undertaking repair works to a roof and had been using a roofing ladder with no scaffolding having been installed and no other measures put in place to circumvent the risks of falls from height. Mr McCarthy pleaded guilty to breaching Regulation 6(3) of the Work at Height Regulations 2005, for failing to take suitable measures to prevent a person falling a distance that is liable to cause injury.

This represents another decision emphasising the critical need for planning work at height and a failure to do so having fatal consequences.

Company fined £2.3m after workers put at risk of death

Workers for Exolum Pipeline System Ltd, a pipeline transportation company, were in Lincolnshire undertaking an excavation of an assumed pipeline leak between 7 and 10 March 2018. The pipeline had undergone a previous repair in the leak area.

Unbeknownst to the workers, the pipeline, which contained petroleum under high pressure, had a defect which had the potential to, 'form a flammable cloud extending over several metres from the work area'. If that cloud had formed, the area within a certain radius (including the area where the workers were) would have been coated in petrol/petrol vapour. The extreme risks of ignition happening following such a coating would likely have resulted in serious injury or death to all in that area. Fortunately, the workers were evacuated before any such tragic incident occurred. However, the HSE determined that the company did not identify or manage any of the risks involved in carrying out such work to that pipeline.

Exolum Pipeline System Ltd was held to be guilty of an offence of Section 2(1) and Section 3(1) of the Health and Safety at Work etc. Act 1974 as it had failed to ensure the health and safety and welfare at work of all its employees and had exposed their health and safety to risks. The company was fined £2.3 million and required to pay £157,431 in costs.

Unusable toilet results in fines for director and company

One aspect of a construction build that is often overlooked is the welfare facilities for the construction workers. Schedule 2(1)(1) of the Construction (Design and Management) Regulations 2015 state that: "Suitable and sufficient sanitary conveniences must be provided or made available at readily accessible places."

In November 2021, a site inspection of a construction project in Belsize Park, North London, took place. The HSE concluded that the construction company, ID8 Design and Build Ltd had fallen far below that standard in the welfare facilities it was providing for its workers. In fact, the inspection report states the toilet did not flush, there was no sink, no hot water, no soap or towels. Cold water was only accessible via a pipe in the room next door. An Improvement Notice was therefore issued against the company.

Following a second inspection a few months later, ID8 Design and Build Ltd was found to have failed to comply with the notice. In February 2023, both the company and its director, Adeel Bhatti, pleaded guilty to breaching Section 33(1)(g) of the Health and Safety at Work etc. Act 1974. The company was fined £1334 and ordered to pay costs of £1748. Bhatti was fined £416 for their breach as director and ordered to pay costs of £1622.07.

Fall through roof results in broken ankle and fines for both principal and specialist contractor

Brackley Industrial Maintenance (BIM) Ltd and STP Construction (STP) Ltd were fined £68,000 and £320,000 respectively and ordered to pay over £8,500 each in costs after a construction worker fell through a roof during a construction project.

The principal contractor in the project was STP Ltd, who had contracted BIM Ltd to carry out repairs works to the roof of a retail unit, including repairs to the roof lights. STP Ltd were responsible for access arrangements for the workers to and from the roof. However, after investigation, the HSE determined that the access had not been planned adequately as the workers were required to "pass fragile materials before they could make use of the fall arrest system installed".

STP Ltd pleaded guilty to breaching Regulation 13(1) of Construction (Design and Management) Regulations 2015 which relates to a failure of a principal contractor to plan, manage, or coordinate matters relating to health and safety during the construction phase.

On the other hand, BIM Ltd were required to ensure its workers were adequately supplied with and had proper access to equipment to either prevent or arrest falls. However, the HSE determined that it had failed to do this and was guilty of breaching Regulation 9(2) The Work at Height Regulations 2005, "which requires every employer to ensure that suitable and sufficient platforms, coverings or similar support or protection are available, and to take suitable and sufficient measures to minimise the distances and consequences of a worker's fall, when carrying out work on or near a fragile surface."

In this instance, the worker fell over 20 feet through the roof and suffered a broken ankle. Notwithstanding that the injury was fortunately relatively minor, the working conditions created a risk which could have led to much more significant injury and / or a fatality.

£120,000 fine for building firm for numerous breaches

A housing development in Greater Manchester was subjected to numerous site visits by the HSE, resulting in numerous prohibitions, improvement and contravention notices being issued for a multitude of health and safety failures. The most notable of these was two workers being lifted whilst standing in the bucket of a digger to fit a stone on a new build house in Littleborough. Failures listed by the HSE included: "lack of sufficient welfare, unsuitable controls for work at height and inadequate protection from silica dust exposure."

Despite receiving the enforcement notices from the HSE, no action to remedy the failures was taken by the building firm, Hoyle Developments Ltd. The firm was later fined £120,000 for breaching Section 3(1) Health and Safety at Work etc. Act 1974 for failing to ensure the health and safety of their employees and ordered to pay over £3,000 in costs.

Falling tree on care home site crushes child

An 8 year old girl was running on a pavement alongside a care home in Southampton when a tree fell on her and crushed her leg, which subsequently had to be amputated due to her injuries.

After investigation by the HSE, it was determined that the tree, which was on Bupa Care Homes' premises and within its control, had likely been infected with a disease for some years before it fell. The HSE investigation also found that Bupa had not put any procedures in place to manage the risks associated with the trees on site, including any requisite monitoring or remedial works that may be needed. The care home pleaded guilty to breaching Section 3 (1) of the Health and Safety at Work etc Act 1974, as it had failed to ensure that people not in its employment but who still may be affected are not exposed to risks to their health or safety.

The accident was deemed 'wholly avoidable' by the HSE as it could have been prevented by simple risk management. Bupa was fined £400,000 and ordered to pay costs of £3,275 together with a victim surcharge.

Multiple failings by Morrisons leads to death of worker and fine of £3.5M

Mr Matthew Gunn, a WM Morrisons' employee for over 10 years, died 12 days after falling on a staff staircase whilst at work. It is believed that he suffered an epileptic seizure whilst walking up the stairs to his locker and fell over the banister, leading to his death.

Charges brought against WM Morrisons included: (i) failure to safeguard the health, safety and welfare of its employee who had epilepsy; (ii) failure to carry out the appropriate risk assessment in relation to the employee who had epilepsy; (iii) failure to review a risk assessment when it had reasons to believe it was inadequate. Morrisons pleaded guilty to a fourth charge of failing to supply the Council with information that had been requested in relation to the incident.

WM Morrisons was aware that Mr Gunn suffered from epilepsy and had previously made certain modifications to his employment conditions, following a previous incident. However, some of those modifications were reversed, requiring Mr Gunn to use the stairs, to access the location where his locker was situated.

Mr Gunn's mother raised concerns with her son's employer and even had a meeting with them concerning his use of the stairs to access his locker, including the risks that this posed, given his condition. As evidenced by a note of a meeting, it was agreed that Mr Gunn's locker would be moved back to the ground floor, along with other actions points. However, the company did not action any of these points and within four months, the tragic accident occurred.

Following a three week trial, a jury found Morrisons guilty of the three charges that it had not accepted. When sentencing, the Judge placed the offences in the highest category of culpability and harm and fined the company £3.5M.

Serco receive hefty fine following the death of a custody officer

Serco employee Lorraine Barwell was escorting a mentally ill prisoner due to be sentenced at Blackfriars Crown Court in July 2015 from his cell when she was suddenly attacked by the prisoner. The prisoner kicked her twice, with the second blow to her head causing fatal brain injuries. In January 2022, the prisoner admitted manslaughter by diminished responsibility and an indefinite hospital order was imposed.

Following an investigation by the HSE, the security firm was found to have failed to properly analyse risk intelligence on prisoners or to adequately communicate risks and safety precautions to staff over a 3-year period. There were also findings relating to failure to follow proper procedure, provide readily available protective equipment and ensure further training was provided where necessary. Ms Barwell, who had been working for the firm for 10 years, was not the only member of staff to be attacked whilst escorting a prisoner; a separate incident in 2016 involved a staff member being rammed against a wall and strangled in Woolwich Court.

Serco pleaded guilty to charges under section 2(1) of the Health and Safety at Work etc. Act 1974 and were ordered to pay a £2.25M fine, along with £433,596.07 in costs. When sentencing the firm, Mr Justice Jeremy Baker said: “I am satisfied that had it not been for Serco’s breach of duty towards its employees, Lorraine Barwell would not have died in the circumstances in which she did.”

Directors jailed after five men lost their lives

Directors of a metal recycling business based in Birmingham were jailed after a 45-tonne wall made up of 30 concrete blocks collapsed on 5 agency workers, crushing them to death. The blocks were reported to each be the size of a domestic fridge-freezer and weigh the same as a family car.
The five men were part of a group of eight agency workers brought to site in July 2016 to clear it of swarf (metal filings), to make way for more scrap metal. At around 8.15am on 7 July 2016, the 12-feet high wall collapsed on five of the men, killing them instantly, whilst a sixth suffered grave injuries to his leg. Two of the men were fortunate to not be in the area at the time of the incident.

An investigation by the HSE revealed that the wall had been previously taken down but then reassembled. It was overloaded with 263 tonnes of briquettes, and so close to toppling that a simple gust of wind could have brought it down.

Following a five week trial, the company directors, Wayne Anthony Hawkeswood and Graham John Woodhouse were found guilty on multiple counts, and each received 9-month custodial sentences. The directors were also found guilty of four breaches of Sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974.

Their companies, Hawkeswood Metal Recycling Ltd (HMR) and ENSCO101 Ltd (previously known as Shredmet Ltd), received fines of £1M and £600,000 respectively.

The court also made a costs order against Hawkeswood, HMR and ENSCO101 Ltd, totalling £775,000, with Hawksewood to pay one third and the companies to pay 20% each; Woodhouse was deemed unable to contribute to costs.

Investigating HSE officer Amy Kalay said: “The investigation into this incident was long and complex. Five men lost their lives in the most appalling of circumstances. Their deaths should not have happened. They went to work to earn a wage; that cost them their lives."

Environmental

Farmer jailed for 10 months for destruction of River Lugg

John Price, 68, who owns Day House Farm and land on both sides of the river Lugg in Herefordshire, destroyed 1.5km of the riverbed and banks by hiring bulldozers and excavators to remove trees and place gravel from the river onto the land.

The Environment Agency and Natural England commenced proceedings against Mr Price following a joint investigation into the environmental harm caused by his actions. The river Lugg is a designated 'Site of Special Scientific Interest' (SSSI) with over 120 river plant species, providing a habitat for otters, kingfishers, trout and salmon, aquatic plant life and other invertebrates. The SSSI designation means that you must secure a permit before undertaking any works to the site or its watercourses. Any work done on the site must not cause any damage to the environment, or impact flooding.

The unauthorised work to the river destroyed many habitats and was in breach of various regulations such as the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (or the Farming Rules for Water), and operations prohibited in the notification of an SSSI. It marks the first prosecution under Farming Rules for Water since its introduction in 2018.

Mr Price was sentenced to 12 months imprisonment (later reduced to 10 months) and ordered to pay prosecution costs of £600,000. He also faces disqualification from being a director of a limited company for three years and the imposition of a Restoration Order under the Wildlife and Countryside Act 1981, which requires that he carry out actions to restore the river.

Round up

HSE notices can be evidence of bad character, Court of Appeal says

In the recent case of HSE v Evergreen Construction UK Limited [2023] EWCA Crim 237 ("Evergreen"), the Court of Appeal considered whether HSE issued enforcement notices could amount to evidence of 'bad character' under s.98 of the Criminal Justice Act 2003.

The appellant in Evergreen had been charged with several breaches of duty contrary to s.3(1) of the Health and Safety at Work etc Act 1974 and regulation 4(1) of the Work at Height Regulations 2005, arising from the death of an employee who had suffered crushing injuries from falling materials at a construction site. Birmingham Crown Court convicted Evergreen following a majority verdict, admitting two HSE notices and correspondence between the HSE and Evergreen as evidence of bad character. Evergreen then appealed that decision, stating that the notices could be likened to Fixed Penalty Notices (FPNs), which do not contain any admission of guilt and therefore should be referred to in that context.

Prohibition notices are issued by the HSE when there is believed to be an active risk of serious personal injury and represent formal enforcement action under statutory powers. On the other hand, contravention notices do not represent formal enforcement action but enable the HSE to flag health and safety breaches. The Court of Appeal judges stressed that not all such notices would imply bad character, however, on the facts the appellant in Evergreen showed evidence of "reprehensible conduct".

Commenting on correspondence between the appellant and the HSE, the Court stated: "In this case the material went beyond evidence about an inspector’s opinion of Evergreen’s word. It included Evergreen’s acceptance of the notice, their declared intention to put matters right in a letter dated 24th January 2017, and in photographs showing the excavations which were unguarded. In these circumstances this was evidence which was of bad character.” The remedial action taken by the appellant showed that it accepted errors had been made, and that there was an intention to remedy those.
Evergreen highlights why businesses and their advisors need to consider HSE notices (even when any further formal enforcement action does not follow) very carefully and any responses to them, including whether they should be appealed. An appeal could be time consuming and expensive, however, they can be justified if the basis for the notice is not justified, particularly against a background where it may subsequently be used as evidence of bad character in any subsequent enforcement action.

HSE guidance on violence and aggression at work

The HSE has refreshed its guidance for employers in respect of Violence and Aggression at work. This refresh comes at a crucial moment in time given the British Retail Consortium has reported that 867 retailer workers suffered violence or abuse every day in 2021/2022 and that there were 53,000 incidents of violence a year. Whilst the statistics reported by the British Retail Consortium reflect violence in the retail sector only, there are incidents of violence and abuse in the workplace across a number of industries.

The HSE guidance gives an overview of what violence in the workplace is, what the law says, how to assess the risks of incidents at work and what measures can be put in place to protect workers from violence. There is also guidance on what incidents need to be reported and what employers can do to learn from those incidents.

This guidance applies to all industries and the HSE has provided examples for each industry of the type of measures that could be put in place to prevent violence being suffered by an employee in that industry. There is also guidance aimed at providing advice on what employers should be doing to protect their employees in the workplace.

High-rise residential buildings registration service goes live

On 12 April 2023, the registration process for high-rise residential buildings in England went live.

Under the Building Safety Act 2022, all high-rise residential buildings matching the relevant criteria must be registered with the Building Safety Regulator, the independent body established by the Act, by 30 September 2023. This applies to most high-rise residential buildings which are at least 18 metres in height, or at least 7 storeys tall, with at least 2 residential units.

A "principal accountable person" (or a person authorised by the principal accountable person to act on their behalf) is required to apply to register the building – this is usually the person or organisation who owns the building or who is accountable for the building's safety. Where the building has more than one accountable person, the person or organisation responsible for the external walls and structure of the building will be the principal accountable person. Examples of principal accountable persons include housing associations, local authorities and companies.

The initial registration process includes paying a fee of £251 and providing information about the building, such as the number of floors at or above ground level, its height in metres, the number of residential units, the year it was originally built and its address. Once completed, the Building Safety Regulator will request more detailed information about the structure and safety of the building. The registration service is part of a wider set of reforms brought in by the Building Safety Act 2022 to overhaul existing building and safety regulations.

Guidance on the registration process and the duties of principal accountable persons can be found on the government website. 

Government abandons REUL sunset clause

The European Union (Withdrawal) Act 2018 was established to ensure that EU and EU-derived law was preserved following Brexit. The Retained EU Law (Revocation and Reform) Bill – (the "REUL Bill") was drafted with the intention to 'take control back' from the EU, as it was retained EU law was never intended to remain statute. In essence, the REUL Bill provided for all retained EU legislation to be revoked by December 2023, the so called 'sunset clause'. This could have led to important legislation falling away by accident, for example, vital consumer protections.

On 10 May 2023, the government announced it will scrap the proposed sunset provision from the bill, which would have automatically revoked most retained EU law at the end of 2023. Instead, at least 600 pieces of EU retained legislation will be set out in a 'Revocation Schedule' (which can be found on the government website). Any laws not listed in the schedule which be retained automatically.

The schedule removes items of REUL which are duplicative, redundant and contrary to the needs and requirements of the UK. In addition, the Financial Services and Markets Bill and the Procurement Bill will remove a further 500 pieces of REUL and the government proposes continuing to review REUL not already revoked or planned for revocation.

The Chartered Trading Standards Institute (CTSI) has welcomed the decision to abandon the sunset clause, however, it has expressed concern over how this has been a major distraction for Government departments at a time when resources could have been allocated to more pressing matters, such as the long-awaited product safety review.

Latest statistics for workplace fatalities from the HSE

The HSE has recently published an overview of work-related fatal injuries in Great Britain during 2022/23. According to the figures, 135 workers were killed in work-related accidents over the past year, with construction again the lead sector with 45 fatalities. The agriculture, forestry and fishing sector had 21 fatalities in the same period.

The most common incidents involved workers falling from a height (40) or being struck by a moving object (29) or vehicle (20). The HSE also confirmed that 68 members of the public were killed in work-related incidents during the same period, not including patients and service users in the healthcare industry or adult social care sectors.

A link to the statistics can be found here.