1 February 2016 saw arguably the biggest change in the health and safety enforcement sector in 40 years. The implementation of the Definitive Guideline on Sentencing in cases of health and safety, corporate manslaughter and food safety and hygiene (the "Guideline") linked financial penalties to turnover of defendant businesses for the first time.
With 12 months experience of the Guideline's application in practice now under our belts, we look back at how the Guideline has impacted the construction industry and in particular how the Courts, regulators and the sector have responded to this momentous change.
Construction is home to 6%1 of the national workforce but is responsible for nearly one third of work related deaths2. It is not surprising that construction therefore remains a key enforcement target for the HSE, reinforced by a 26% increase in HSE inspection charges to the industry in the past year3.
What are the key risks?
The high risk area in the industry continues to be falls from height, which accounted for 26% of fatal injuries4, remaining the biggest killer in the construction sector. There have been a number of high-profile cases in the industry involving both fatal and non-fatal falls, many yielding six figure penalties.
2017 has been earmarked by some as the year we put "health" back into "health and safety". With 4% of construction workers suffering job related illness each year, the industry is heaving under the weight of some 79,000 cases of ill health. Whilst the majority are musculoskeletal disorders (64%) a growing proportion are identified as stress, anxiety and depression (18%).
Recent industry research from Construction News5 found that:
- More than 25% of construction workers have considered suicide;
- 1 in 7 have known someone to take their own life; and
- Of those, 90% did not turn to their employer for support
These shocking findings only increase the importance of initiatives such as Mates in Mind, which notes on its website that "suicide kills far more construction workers than falls". As we seek to establish equal footing for health this year, the growing need for employers in this sector to manage physical and mental health issues is clear.
What has happened?
The past year has brought not just prosecutions following incidents, but also risk based enforcement action, where no incident has occurred at all. Recent months have seen convictions following unannounced inspections, self-reporting and public complaints, something that had been largely absent in recent years. In one such case, a fine of GBP 500,000 was imposed.
In researching this report, we analysed the information available on the HSE prosecutions database6 and have gleaned the following:
- The range of fines levied on defendants prosecuted in the construction industry was huge; from GBP 125 to GBP 2.6m (for Balfour Beatty following a fatal trench collapse)
- The total sum collected in fines from 1 February 2016 to 31 January 2017 was an enormous GBP 12,967,395.98 with an average fine standing at a sizeable GBP 92,624.26
- In the comparable previous year (1 February 2015 to 31 January 2016), the total sum collected in fines was GBP 7,091,529
- This means that the total sum collected has risen by 82.8% when compared to the previous year
- Largest percentage of turnover taken in fines: 27.5% in the case of Monavon Construction fined GBP 550,000 for two offences of corporate manslaughter and one health and safety breach
Given the figures seen so far, it is only a matter of time before the courts impose further significant fines on "large" and "very large" construction businesses. In the meantime, the Guideline is having a painful effect on "small" (turnover between GBP 2m and GBP 10m) and "medium" (turnover between GBP 10m and GBP 50m) size entities. Whilst bigger organisations are yet to be fined anything approaching 0.1% of turnover, case after case sees construction SMEs deprived of far larger proportions of revenue (typically between 1.5% and 3.75%). The sums fined are lower but their effects on the respective businesses are far more significant.
Good health and safety management is morally right. It also makes good business sense. For larger construction businesses, the key will be in understanding of systems amongst the workforce and a sound contractor and sub-contractor management process. For SMEs, it is about education and using the available resources to achieve a safe result, keeping safety in mind when the pressures of the job begin to tell.
As the Construction (Design and Management) Regulations 2015 continue to struggle to achieve their objectives, there is a clear and increased onus on the larger industry players to help with the educational piece that is so crucial to achieving safety across the board.
5 https://www.constructionnews.co.uk/10019419.article?search=https%3a% 2f%2fwww.constructionnews.co.uk%2fsearcharticles%3fparametrics%3d% 26keywords%3dmental+health%26PageSize%3d10%26cmd%3dGoToPage% 26val%3d3%26SortOrder%3d1
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