Legal Update 16 June 2016 - Meeting Report

29 June 2016

This was officially the first meeting provided by the newly elected committee. It was also the second year of running breakfast meetings which appears to be very popular with Yorkshire branch members who turned out in large numbers.

Due to unforeseen circumstances, there was a last minute change to the original speaker. Kirsty Gomersal of Clyde & Co and Yorkshire branch committee member agreed to speak. Having been given such short notice she managed to deliver a very interesting and packed legal update session.

The presentation covered a number of topics including a sentencing update (following the implementation of the new sentencing guidance in February), the role of the H&S Advisor in civil claims and an overview of the management of contractors from a non-CDM perspective.

The presentation slides covered relevant regulations and supporting guidance documents. Kirsty also highlighted some prosecutions which demonstrated the law in practice and the expectations of the HSE.

HSG159 on the Management of Contractors was given as an example of guidance available from HSE and 5 practical steps for good management of contractors:

  • Planning
  • Choosing a contractor
  • Co-operation and co-ordination between “client” and contractor
  • Keeping a check
  • Reviewing the work

Kirsty explained each of the five steps and used case law to demonstrate the practical application of each of the steps.

Kirsty’s view was that many organisations lose focus on the importance of step 3 – co-operation and co-ordination.

Whilst the session was not intended to cover CDM duties, Kirsty reminded delegates that, in relation to choosing competent contractors, CDM 2015 requires the appointment of contractors with the “necessary skills, knowledge, training and experience” and that delegates may find it useful to review the HSE’s guidance in this respect.

The new Sentencing Guidance took effect on 1 February 2016 for all cases sentenced after that date. Kirsty took delegates through the 9 steps that a Court will undertake in sentencing both individuals and organisations for health and safety and corporate manslaughter cases. Kirsty looked at some cases sentenced under the new Guidance and invited delegates to think about whether fines appeared to have increased, particularly for large organisations. For health and safety offences, there have been a number of high profile companies sentenced including BUPA, BT and McCain Foods.

In relation to corporate manslaughter, as well as giving an overview on cases to date, Kirsty highlighted that only one company has been sentenced under the new Guidance – Sherwood Rise. The company admitted the corporate manslaughter of an elderly care home resident in conditions which one of the lawyers involved said would “cause anyone with a nanogram of humanity to hang their head in sorrow and shame”.

NEWSFLASH - Kirsty advising delegates to look out for the sentencing of Monavon Construction following the deaths of two civilians after then fell against hording around a construction site. The company was sentenced at the Old Bailey on 27 June and was fined £500,000 for two counts of corporate manslaughter plus £50,000 for a health and safety charge. The company was also ordered to pay nearly £24,000 in costs.

Finally, after such an extensive overview of the criminal law and penalties, Kirsty gave an overview on the role that the H&S professional may play in civil claims e.g. personal injury. She looked at how alleged health and safety breaches could now be used in a civil claim and also the impact of any unchallenged FFI notices. Kirsty gave an update on the current position with FFI Notices issued and reminded delegates that the HSE’s hourly charge rate has increased to £129 per hour.

A packed informative presentation was followed by question and answer session on specific situations which demonstrated the interest held by all those who attended.

Podbean - Presentation

The Yorkshire Branch arranges its branch meetings in order to provide opportunities for members to meet, network with other members, ask questions and to attend informative presentations for free.
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