HEALTH & SAFETY: An Introduction

Is Health and Safety Being Treated as a Genuine Priority?

Following the publication of the Health and Safety Executive’s (HSE’s) 10-year strategy, its 2023/24 business plan outlined plans to reduce work-related ill health, with a focus on mental health and stress. Depression, anxiety, and stress are now the most frequently reported work-related illnesses in Great Britain, with cases of work-related ill health (excluding long-latency illnesses like cancer) costing the economy an estimated GBP11.2 billion in 2019/20. The HSE has described its “unwavering” focus on poor mental health and work-related stress, developing long-term approaches, including planning operational interventions such as inspections, to reduce the level of risk over time.

Nevertheless, the most significant developments currently occurring remain in the safety sphere, including a number of significant fines imposed throughout 2023, suggesting a marked upward trend to already draconian penalties.

In January 2023, Kier, a civil engineering firm, was fined over GBP4 million for two incidents on the M6 motorway where workers struck overhead powerlines during smart motorway construction. The HSE found that inadequate planning led to the first incident involving an unsuitable vehicle without a task-specific risk assessment. In the second incident, workers said that they were unaware of overhead hazards. Kier admitted breaching Sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974 and Regulation 13(1) of the Construction (Design and Management) Regulations 2015. The level of fine, despite the absence of injuries, provides a reminder that sentencing is primarily based on the risk of harm.

In July 2023, the Central Criminal Court in London imposed fines of GBP10 million on Transport for London (TfL) and GBP4 million on Tram Operations Limited (TOL) for their roles in the Croydon tram crash, following an investigation and prosecution by the Office of Rail and Road (ORR). TfL is responsible for the infrastructure of the Croydon tram network, while TOL operates it. Both companies pleaded guilty to offences under the 1974 Act.

The incident occurred on 9 November 2016, when a tram, traveling in adverse weather conditions and at three times the permitted speed, derailed near Sandilands junction. This resulted in seven fatalities and 19 serious injuries among the 69 passengers on board, with only one person escaping unharmed. TfL and TOL were accused of not doing everything that was reasonably practicable to ensure passenger safety on the tram network. Specifically, they were found to have failed to conduct an adequate risk assessment for high-speed derailments on the network.

The fines followed the June 2023 acquittal of the tram driver, Alfred Dorris, who was cleared of failing to ensure passenger safety under Section 7(a) of the 1974 Act, a prosecution also brought by the ORR. The court heard he had been disorientated by inadequate signage and bad lighting in the tunnel, exacerbated by poor weather conditions. The jury reached a unanimous verdict in under two hours.

Network Rail was subject to two high-profile health and safety prosecutions in 2023. In August 2023, it was fined GBP1.2 million for a fatal incident at a Hampshire rail depot. The HSE investigation revealed safe system of work and risk assessment failures regarding maintenance work. Network Rail pleaded guilty to breaching Section 2(1) of the 1974 Act. The following month, in September 2023, Network Rail was fined GBP6.7 million as a result of maintenance and inspection failures which led to a train crash that killed three people and injured six. The fine was reduced from GBP10 million due to a guilty plea. The crash was precipitated by a landslide in an area where a drainage system had been improperly installed.

In September 2023, the ORR’s new Enforcement Management Model (EMM) was published. The ORR’s EMM replaced the suite of previously employed HSE guidance and ORR supplements to create one standalone EMM that retains the same regulatory principles as the HSE EMM but is for use in the railway context. The EMM is primarily designed to guide inspectors in determining the severity of any failings and proportionate enforcement action.

Building safety has remained high on the safety agenda in 2023, with the new building safety regime under the Building Safety Act 2022 (BSA) coming into force. Section 156 of the BSA took effect in England in October 2023, amending the Regulatory Reform (Fire Safety) Order 2005 to widen the duties of Responsible Persons and ensure co-operation with Accountable Persons in relation to “higher-risk buildings”. Registration with the Building Safety Regulator of buildings over 18 metres, or seven storeys tall, was required by 1 October 2023. When the deadline was reached, over 13,000 registrations had been started. It is now a criminal offence for any occupied higher-risk building not to be registered with the new regulator. Those responsible could face significant sanctions, including prosecution.

October 2023 also saw the start of public hearings in relation to Module 2 of the COVID-19 Public Inquiry (Core UK Decision-making and Political Governance). The inquiry has the potential to lead to criminal prosecutions against both corporate entities and individuals. In the past decade, several concluded inquiries have seen associated prosecutions. Potential offences to be investigated could include corporate manslaughter, gross negligence manslaughter, health and safety breaches, and care offences (related to inadequate safe care provision).

A corporate manslaughter investigation involving the Countess of Chester hospital commenced in October 2023, following its employee, Lucy Letby’s, convictions for the murders of seven babies and the attempted murders of six babies. At the time that the investigation was launched, the police were not investigating gross negligence manslaughter on the part of any individuals.

Finally, and significantly for the HSE’s future role, in 2023 the trade union Prospect found that the number of mandatory HSE investigations not carried out because of resourcing issues increased nearly 200-fold between 2016/17 and 2021/22. Since 2003, staffing levels at the HSE nearly halved, with government funding also falling dramatically, from GBP228 million in 2010 to GBP126 million in 2019, improving to GBP185 million in 2022. Senior HSE staff were reported to believe that the regulator had “shrunk below the critical mass to be ... effective”. Future enforcement statistics and its record delivering the strategic objectives set in its 10-year strategy will demonstrate how effective the HSE remains over the coming years.