Legal Briefing

Mind the health and safety compliance gap

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Scotland | 01 June 2012

In the words of one very famous global entertainment company, ‘it’s a small world after all’. Advances in technology have made it relatively easy to move into new territories and connect globally. Although the world is getting smaller, the task of managing compliance in numerous different jurisdictions is not. Even within the UK, there are local differences that need to be taken into account.

At the moment, health and safety regulation in the UK is going through a period of modernisation and change. The UK government has promised to simplify the legislative framework over the next three years. It wants to get rid of unnecessary red tape and make it easier for businesses to manage their health and safety obligations. The review by Professor Ragnar Lofstedt, ‘Reclaiming health and safety for all: an independent review of health and safety legislation’, found that the existing UK legislative framework for health and safety was broadly fit for purpose. However, some laws and approved codes of practice are to be updated. Obviously, keeping abreast of the forthcoming changes is important for any business and any major legislative change should be applied uniformly throughout the UK. However, for any business with interests in Scotland, it is important to remember that Scotland has its own legal system. Although health and safety law is reserved to the UK government, there are practical and regulatory nuances that businesses operating in Scotland should be aware of when considering the management of operational health and safety risk north of the border.

So, here is our simple guide to the ten things you should bear in mind if your business has any operational risk in Scotland.

WORKERS IN SCOTLAND ARE AT A HIGHER RISK OF SERIOUS INJURY

Over the years, statistics from the Health and Safety Executive (HSE) consistently have shown that Scottish workers are at higher risk of serious incident/injury than workers in the rest of the UK. The statistics are collated from the obligatory reporting of all work-related injuries, diseases and near misses by companies and the self-employed direct to the HSE. For the year 2010/11, HSE statistics showed that the rate of injury for fatal and major injuries in Scotland was 114.0 per 100,000 employees, compared with a UK national average of 100.4. Conversely, the rate of over-three-day injuries in Scotland (where an employee is away from work or unable to perform their normal duties for more than three consecutive days as a result of an occupational accident or injury) was 333.5 per 100,000 employees, compared with a UK national average of 366.4.

There are many theories as to why Scotland tends to have higher rates of serious incident. Arguably, Scotland has more high-risk industry (eg offshore, oil and gas, construction and agriculture) than the rest of the UK but no one can be sure that is the reason why. If you have business operations in Scotland, then bear the statistics in mind and ask yourself whether your business is managing operational risk effectively.

That leads us nicely onto leadership in health and safety.

ENSURE CONSISTENCY IN HEALTH AND SAFETY LEADERSHIP ACROSS THE BUSINESS

Regulators and prosecutors expect to see evidence of a clear health and safety culture permeating the business. Evidence of leadership in health and safety should be backed up by policies, clear health and safety hierarchy/role description and effective procedures, especially in businesses with a disparate geographical spread. As part of the shake-up of health and safety regulation, the government supports the recommendation that the HSE should now direct local authority enforcement to ensure consistency of approach across the UK. The joint guidance issued by the Institute of Directors and the HSE, entitled ‘Leading health and safety at work: leadership actions for directors and board members’ (http://www.hse.gov.uk/pubns/indg417.pdf), is now a well-worn document and will be relied upon by prosecutors in Scotland in a corporate homicide prosecution. Consistency of approach should be maintained as far as reasonably practicable and best practice should be communicated and complied with throughout the business.

SCOTTISH COURT PROCEDURE IS DIFFERENT

As mentioned above, Scotland has its own legal system. Following a health and safety incident, businesses could face a criminal or HSE prosecution, fatal accident inquiry (FAI) and a civil damages case. The general rule of thumb in Scottish court procedure is that witnesses must appear in court and give oral evidence; unlike other jurisdictions, such as England and Wales, witness statements are not lodged in court to help witnesses with their evidence. The credibility and reliability of the witness’ testimony is judged on what they say and how they say it in the witness box. They are vulnerable to cross-examination, and nerves, memory lapses and lack of experience in giving evidence can all conspire against them and the business.

How do you deal with this? One way is to make sure your business and your people are prepared for Scottish court procedures, and to consider providing them with appropriate training.

CONSIDER STAFF TRAINING ON SCOTTISH COURT PROCEDURE

Incident avoidance is what all businesses should be striving for but accidents will happen. Where court process cannot be avoided and your business runs the risk of staff and senior managers giving evidence in court, consider litigation awareness training to help staff manage the situation and future business risk. Equally, get some guidance on when and how to secure legal privilege (in-house counsel cannot guarantee litigation privilege) and have practical tips on incident management. Forewarned is forearmed.

SCOTTISH CIVIL DAMAGES LAW AND PROCEDURE IS DIFFERENT TO THE REST OF THE UK

As mentioned above, Scottish law and procedure is different and the way that civil damages and claims are dealt with in Scotland differs from the rest of the UK. Scotland has its own voluntary pre-action (pre-litigation) protocol for accident and disease cases and a different court structure and procedure for litigated cases. Accordingly, it makes sense to implement a claims handling strategy that takes into account the practical nuances that apply to Scottish claims in order to avoid unnecessary disclosure of evidence, payment of claims and, ultimately, manage your business’ overall actual and hidden claims spend.

HSE AND CRIMINAL PROSECUTIONS IN SCOTLAND ARE DIFFERENT

The Crown Office and Procurator Fiscal Service is responsible for prosecuting all criminal cases in Scotland, including HSE prosecutions. Following an incident, the HSE will investigate and provide all relevant evidence and a report with its recommendations to the Procurator Fiscal. However, the Crown Office ultimately will decide whether or not to prosecute a company and/or an individual for a health and safety related crime. Post HSE enquiry, the Procurator Fiscal can carry out their own enquiries, which can include taking precognitions (non-discloseable statements) from company witnesses. Accordingly, following any serious incident it is important to retain Scottish counsel in order to protect your business’ interests.

FATAL ACCIDENT INQUIRIES

In the event of any unexplained or sudden death in Scotland, the Procurator Fiscal can decide to hold a public inquiry, known as an FAI, into the circumstances surrounding the death. Currently, Scottish law states that, if an employee dies during the course of their employment, a mandatory FAI must be held. Unlike a coroner’s inquest, an FAI does not open immediately after the death. In fact, it can take several years before the Procurator Fiscal confirms to any interested parties (including the deceased’s employer) their intention to hold an FAI.

If your business is unfortunate enough to experience a work-related fatality, it is important to consider the potential for an FAI and take steps to capture evidence and protect the business’ position.

THE SCOTTISH ASBESTOS LEGACY

Asbestos products were used widely in Scotland after World War II. Hundreds of civil compensation claims are raised in Scotland each year by claimants alleging negligent exposure to asbestos during their former employment. It can take many years for asbestos-related disease to develop and therefore compensation claims will only be intimated decades after the alleged exposure. Normally, the insurance company ‘on risk’ at the time of the exposure would deal with the compensation claim. However, some businesses struggle to identify relevant insurers and the failure to secure indemnity from an insurance company leaves the business open to the financial impact of asbestos-related compensation claims.

All businesses should therefore retain accurate records of their insurance history and retain policies, if at all possible. When acquiring a business that had historic operations in Scotland, the recovery of its insurance history is essential.

SCOTTISH OCCUPATIONAL ROAD RISK

It is estimated that between 25%-33% of all road traffic incidents involve someone who is driving during the course of their employment. The most recent set of Scottish accident statistics tells us that in 2010 there were 208 Scottish road traffic fatalities. Scotland often has challenging weather(!) and the landscape, while beautiful, can raise logistical problems. All businesses should manage occupational road risk in the same way that they manage any other operational risk in order to reduce the risk of injury to the lowest level that is reasonably practicable. A robust business driving policy or fleet policy is essential in order to avoid criminal prosecution against the company for road traffic incidents.

CORPORATE HOMICIDE

Finally, the Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008. It created the new Scottish offence of corporate homicide, allowing businesses and organisations to be prosecuted if the death was caused by a serious management failing that led to a gross breach of a duty of care. Prosecutions under the Act have been brought in England but there has been no Scottish prosecution yet. The attitude of the Scottish courts is therefore still unknown and this is still a relatively new area of law. Notwithstanding the lack of prosecution, businesses that have operations in Scotland should maintain robust policies and procedures with respect to health and safety obligations to eliminate incidents where possible and resist a corporate homicide prosecution in the event of a fatal incident occurring.

So remember, it might be a small world, but if your business has operations in Scotland it is important to understand our local health and safety regulation and procedure to protect your business’ interests. Prevention is always better than cure.