I recently read an article in a British Safety Council publication referencing HSE annual statistics noting that prosecutions for health and safety breaches were at a record low, with 2018/19 prosecutions down by 23 per cent from 2017/18 numbers, and more than a third since 2014/15.
Concern was expressed that some employers were prepared to ignore health and safety laws believing that they would never be “caught”.
Whilst it has always been the case that some element of employers are prepared to flout health and safety regulations for profit, or simply through recklessness, the concern is whether the proportion prepared to ignore these laws is growing or decreasing; whether the trend is going in the right direction.
The HSE notes in its statistics that the drop in prosecutions is being investigated and may relate to factors including: defence solicitor challenges regarding sentencing guidelines; a higher number of Newton hearings (where some determination of facts by a court is required despite a guilty plea) and a higher than usual number of inspectors in training.
Given that there have been no changes to HSE prosecution policy for decision; the figures certainly suggest that something is slowing the process.
Although more inspectors in training are noted, it is unclear whether existing inspectors have higher individual caseloads, which could also slow progress towards prosecution.
Whilst it is difficult to know with certainty the reason for the drop in prosecutions and slowing in investigations, it cannot be a good thing for the safety of our workforce.
There is little deterrent in having health and safety laws if they do not have “teeth” in the form of rigorous enforcement through the HSE, local authority enforcement, and subsequently the courts.
Having specialised in claims arising from workplace accidents for almost 20 years, anecdotally the feeling is that fewer accidents which would previously have been investigated are now being looked at by the enforcing authorities.
I am sure, like me, many solicitors have their own mental list of businesses they repeatedly act against in workplace accident cases, often in accidents occurring in worryingly similar circumstances to previous cases; businesses who appear to be “getting away with it”.
There is also concern that some cases where investigations do take place, do not delve deeply enough into the circumstances of the accident, and that this perhaps leads to cases where a successful criminal prosecution may have been possible are being missed.
Another way to look at this, of course, is that an organisation with limited resources is working to concentrate those resources on cases where it is likely to be easiest to secure a prosecution; seeking to use its resources to maximum effect.
Latest conviction rates of 92 per cent might make this arguable. Whatever the answer, it is something, particularly in these uncertain times that we all need to monitor closely.
Workers deserve the protection of the law, and the law needs to be an effective deterrent. It is my view that we should encourage questioning of decisions not to prosecute where our clients believe that key facts have not been considered, or where appropriate evidence has not been sought.
Whilst it is unrealistic and inappropriate to expect every workplace accident to be investigated and some form of enforcement to follow, HSE guidance refers to considering whether evidence gathered is “sufficient for there to be a realistic prospect of conviction” but also states “if not, the feasibility of obtaining additional evidence” should be considered.
If we have cases where we question whether that has happened they should be flagged. Resources allocated to the HSE and local authorities for accident investigation and enforcement are a matter for Government, and representations in that regard must continue.
But raising concerns in appropriate cases, and encouraging clients to report accidents their employers haven’t, whilst not a global solution, could just make the difference in some cases.
Lisa Fairclough is an associate solicitor in the serious Injury team at Irwin Mitchell LLP, specialising in workplace accidents.