Health and Safety Updates

Health and Safety Updates

Health and Safety Updates IOSH Essex Branch Meeting 10 April 2019 Contents 1. Violence at work 2. Your duties regarding legionella 3. Steps to take following an asbestos release 4. Drug and alcohol testing at work 5. Recent fines and sentencing update squirepattonboggs.com 2 Violence at work

squirepattonboggs.com Overview Violence at work - HSE definition Worrying increase in the number of emergency workers subjected to work-related violence Assaults on Emergency Workers (Offences) Act 2018 Case Study - NHS Trust fined after two nurses stabbed at work Reporting non-consensual violence at work under RIDDOR squirepattonboggs.com 4 Violence at Work HSE's definition of work-related violence:

"any incident in which a person is abused, threatened or assaulted in circumstances relating to their work" squirepattonboggs.com 5 Worrying increase in the number of workers subjected to workrelated violence Statistics Educational Staff - In 2016/17, 477 non-fatal injuries were reported to the HSE, 10% of which were caused by "acts of violence" compared with 385 in 2012/13 Ambulance Staff - 2013/14 to 2016/17 reported physical assaults increased by 34% Prison Officers - 9,485 assaults on prison staff from June 2017 to June 2018 - up 27% from previous year British Retail Consortium's Retail Crime Survey, March 2018 - Incidents of violence against staff causing injury in 2017 doubled from 2016 to six per 1,000 members of staff squirepattonboggs.com

6 Worrying increase in the number of workers subjected to workrelated violence (Cont.) Union of Shop, Distributive and Allied Workers (Usdaw) Freedom from Fear survey 2017: 2/3 of shop workers abused in 2017 42% were threatened More than 265 assaults every day 25% increase in abuse Threats rose by 38% squirepattonboggs.com 7 Assaults on Emergency Workers (Offences) Act 2018

Assaults on Emergency Workers (Offences) Act 2018 (the "Act") came into force on 13 November 2018 Section 1 - The Act creates a new specific offence of assault or battery against an emergency worker Maximum prison sentence for assault/battery against an emergency worker extended from 6 months to 12 months - Section 39 (1) and (3) Criminal Justice Act 1988 amended by Section 1(5) (a), (b) of the Act Section 2 - Aggravating Factors - Committing assault or battery against an emergency worker must be treated as an aggravating factor when determining the seriousness of the offence Section 3 - Broad meaning of 'emergency worker' - Immaterial whether the employment/engagement is paid or unpaid squirepattonboggs.com 8 Case Study - NHS Trust fined after two nurses stabbed at work The Incident 17 July 2016, Burgess Ward, the Bracton Centre, Kent A medium secure unit

Francis Barrett, a health care assistant, was preparing food in the kitchen when he left to speak to a service user As Francis left the kitchen by unlocking and opening the door a service user nearby pushed him back into the kitchen, forcing him onto the floor and stabbed him multiple times in the chest and stomach using a kitchen knife Francis had left on the work surface Julius Falomo, a psychiatric nurse, saw the attack and shouted at the service user to stop. The service user left Francis to attack Julius Julius was then stabbed several times Armed police arrived and arrested the service user Francis Barrett and Julius Falomo both suffered severe injuries as a result of multiple stab wounds squirepattonboggs.com 9 Case Study - NHS Trust fined after two nurses stabbed at work

(Cont.) HSE Investigation No patient specific risk assessment in place to identify risks and the measures required to control these risks prior to patients (many of whom are high-risk) being admitted to the ward The use of knives on an acute ward was fundamentally unsafe staff were entering and exiting the kitchen frequently whilst knives were in use No instructions or control measures in place regarding kitchen knives Following the incident, all knives were removed from acute wards HSE Position The risk of violence posed by patients was entirely foreseeable. "The treatment of patients in medium secure psychiatric units involves an inherent risk of violence and aggression However, the Trust nevertheless had a duty to ensure the safety of its staff and its patients so far as was reasonably practicable." "There were relatively straightforward steps that could have been taken prior to the incident to prevent it happening. These included carrying out a patient specific risk assessment prior to admission to the ward; the removal of knives from acute admission wards and proper training in search techniques."

squirepattonboggs.com 10 Case Study - NHS Trust fined after two nurses stabbed at work (Cont.) Prosecution and Fine 20 December 2018 - NHS Oxleas Foundation Trust pleaded guilty, at the Old Bailey, to breaching Section 2(1) and 3(1) of the Health and Safety at Work etc. Act. The Trust was fined 300,000 and ordered to pay costs of 28,000. squirepattonboggs.com 11 Violence at Work

HSE Guidance INDG69 Advocates conventional approach Stage 1 - Finding out if you have a problem Evaluation high risk sector (emergency workers, retail or education) Monitoring Stage 2 - Deciding what action to take Risk assessment Stage 3 - Take action Implement control measures identified in risk assessment Stage 4 - Check what you have done Monitoring Review squirepattonboggs.com 12

Your duties regarding legionella squirepattonboggs.com Key Legal Duties Control of Substances Hazardous to Health Regulations 2002 Regulation 6 - Employer duties not to carry out any work which is liable to expose any employees or non- employees to any hazardous substance unless risk has first been assessed and appropriate steps taken. Regulation 7 - Employer duty to prevent exposure of employees and non-employees to hazardous substances, or, where prevention not reasonably practicable, to adequately control it. Health and Safety at Work, etc. Act 1974 Section 2 - Employer duties towards employees. Section 3 - Employer duties towards persons other than employees.

Section 4 - Duties towards persons other than employees who use premises you control as a workplace. Common law duty of care squirepattonboggs.com 14 What does this mean in practice? "Do I really have to carry out a legionella risk assessment? I mean really." "Yes, you really do, but The key is PROPORTIONALITY." Where the assessment demonstrates there is no reasonably foreseeable risk or that risks are insignificant and unlikely to increase, and are properly managed, no further assessment or measures are needed. For example: small building without individuals especially at risk from legionella bacteria (e.g. smokers, people suffering from

chronic respiratory or kidney disease, diabetes, lung and heart disease, or anyone with an impaired immune system); where daily water usage is inevitable and sufficient to turn over the entire system; where cold water is directly from a wholesome mains supply (no stored water tanks); where hot water is fed from instantaneous heaters or low volume water heaters (supplying outlets at 50 C); orC); or where the only outlets are toilets and wash hand basins (no showers). In these circumstances: record conclusions; and review annually or if you become aware of a change in circumstances. squirepattonboggs.com 15 Higher risk workplaces

The risk may be increased, for example, if: the water temperature in all or some parts of the system may be between 20-45 C); orC; it is possible for water droplets to be produced and, if so, they can be dispersed; water is stored and/or re-circulated; or there are deposits that can support bacterial growth, such as rust, sludge, scale, organic matter and biofilms. Can the use of the relevant water systems be avoided? If not, scheme of control is needed, which may include: using temperature control to ensure water is stored at 60C); orC; removing redundant pipework; cleaning and disinfecting; regular sampling; and emergency procedures. squirepattonboggs.com

16 Recent cases June 2018 - Bupa fined 3m after an elderly resident died from Legionnaires disease at nursing home in Brentwood. May 2018 - Faltec Europe (car parts firm) fined 800,000 following an outbreak of Legionnaires' disease at its South Tyneside factory which caused 4 employees an one nearby resident to become ill. April 2018 - Royal United Hospital, Bath fined 300,000 after an elderly patient died from Legionnaires' disease. July 2015 - JTF Warehouse (DIY retailer) reported to have paid over 200,000 in damages to the relatives of three men who died after contracting Legionnaires' disease from a hot tub on display at its premises in Stoke. squirepattonboggs.com 17

Steps to take following an asbestos release squirepattonboggs.com Case Study Company commissioned asbestos survey in 2005. Survey identified asbestos in various locations - recommendations: Remove high risk asbestos debris; Repair (encapsulate) medium risk material and then manage in situ (label and inspect); and Manage low risk material in situ (label and inspect). Removal and encapsulation works take place (evidenced by hazardous waste consignment notes and invoice from licenced contractor). Register and management plan created but never updated and no evidence of review. No record kept of any inspections.

Suspicious dust discovered in workshop used by employees and visited by contractors. Unclear as to when dust first appeared. squirepattonboggs.com 19 Basic Legal Duties Control of Asbestos Regulations 2012 Regulation 4 - Management duties; Regulation 11 - Duties to prevent or reduce exposure to asbestos; Regulation 15 - Arrangements to deal with accidents, incidents and emergencies; and Other potential duties? Reporting of Injuries Diseases and Dangerous Occurrences Regulations 2013 Regulation 7 - Report dangerous occurrences.

"Responsible Person" must notify regulator by the quickest practicable means and send a report to them within 10 days of the incident. Health and Safety at Work, etc. Act 1974 Section 2 - Duties towards employees Section 3 - Duties towards persons other than employees Common law duty of care Chandler v Cape (2012) squirepattonboggs.com 20 "Wife was negligently exposed to asbestos when she washed clothes" - The Times 26 July 2018

squirepattonboggs.com 21 What should the employer do? Close off area and have the dust laboratory tested. Air testing. Notify insurer. But which one? Make a RIDDOR notification? Has there been an accidental release or escape of asbestos fibres into the air in a quantity sufficient to cause damage to the health of any person? Precautionary report? Notify:

Current employees who may have been exposed; Former employees who may have been exposed; and Contractors and other visitors who may have been exposed. How far back do you need to go? Active management of asbestos since 2005 would have avoided (or, at least, substantially reduced the risk of this happening). squirepattonboggs.com 22 Drug and alcohol testing at work squirepattonboggs.com

Key Legislation Health and Safety at Work Act 1974 Section 2 (employees) and Section 3 (non-employees) Misuse of Drugs Act 1971 Makes it an offence for someone to knowingly permit the production, supply or use of controlled drugs on their premises except in specified circumstances (such as where permitted by regulations or by licence from the Secretary of State) Transport and Works Act 1992 Section 27 - Makes it an offence for certain workers to be unfit through drugs and/or drink while working on railways, tramways and other guided transport systems. Road Traffic Act 1988 Sections 4, 5 and 5A Make it an offence to: Drive a vehicle on a road or other public place when unfit to drive because of drink or drugs Drive or attempt to drive a vehicle on a road or other public place, or be in charge of a motor vehicle after consuming alcohol or a specified controlled drug (of a quantity above the legal limit) squirepattonboggs.com 24

Key Legislation (Cont.) Management of Health and Safety at Work Regulations 1999 Regulation 3(1) - Places a duty on an employer to carry out a suitable and sufficient risk assesment of: (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and (b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking Regulation 6(1) Every employer shall ensure that his employees are provided with such health surveillance as is appropriate having regard to the risks to their health and safety which are identified by the assessment. Similar to the Misuse of Drugs Act 1971 in that an employer can be prosecuted if they knowingly allow an employee to continue working while under the influence of alcohol or drugs and their behaviour places the employee themselves or others at risk squirepattonboggs.com

25 Overview Health and Safety Executive (HSE) Guidance on drug and alcohol screening Information Commissioners Office (ICO) Employment Practice Code Guidance for Employers on Good Practice when carrying out Drug and Alcohol Testing European Workplace Drug Testing Society (EWDTS) Guidelines ACAS Guidance on Drug and Alcohol Policies Case Study Bus Driver Succeeds in Unfair Dismissal Claim Key Legislation squirepattonboggs.com 26 HSE Guidance for Employers on Drug and Alcohol Testing

(Part 1) Requirements for Employers Employers must secure the agreement of the workforce to the principle of testing/screening Through each employees contract of employment The HSE is only likely to find testing/screening acceptable if it forms part of a companys occupational health policy and is clearly designed to prevent risks to others Consider the Practicalities The specific testing an employer intends to carry out needs to be appropriate for the type of work carried out Consider the cost of ensuring the accuracy and validity of test results Samples need to be collected effectively and efficiently Samples must be protected from contamination Employers need to be careful about how the information obtained from testing is used squirepattonboggs.com

27 HSE Guidance for Employers on Drug and Alcohol Testing (Part 2) View of the HSE The HSE does not consider drug and alcohol testing/screening to be the complete solution to the issues caused by drug and alcohol abuse Recommendations for Employers Employers should refer to the guidance produced by the European Workplace Drug Testing Society (EWDTS) Employers should refer to the ICO Code of Practice and follow the specific guidance relevant to drug and alcohol testing squirepattonboggs.com 28

ICO Code of Practice Guidance for Employers on Good Practice Ensure the benefits outweigh any adverse impact Testing and the information obtained is unlikely to be justified unless it for the purposes of health and safety Carry out an impact assessment prior to testing Employers should use post-incident testing where there is a reasonable suspicion of drug or alcohol use (rather than random testing) Minimise the amount of personal information obtained through the testing Unless testing produces significantly better evidence of impairment than other less intrusive means it should not be used The least intrusive method of testing available should be used Employees should be informed about which drugs they are being tested for Testing should be based on reliable scientific evidence about how specific drugs affect employees

squirepattonboggs.com 29 EWDTS Guidelines (Part 1) European Guidelines for Workplace Drug and Alcohol Testing Specific Guidelines for Workplace Drug Testing in Urine and Oral Fluids Specific Guidelines for Workplace Drug and Alcohol Testing in Hair General Guidelines applicable to Urine, Oral Fluids and Hair Applicable to laboratory-based testing only Drug testing should form part of an overall drug policy, which the purchaser of the testing has agreed with his employees The service provider should have an effective company drugs policy in place The dignity of the individual providing the urine specimen must be respected for the drug testing to be legally defensible Suitable records must be made when the specimen is collected to ensure the specimen collected is the

same as the one received by the laboratory All positive samples and all records of the analytical process, must be kept for an agreed period of time or according to national legislation to allow for any challenges to be made regarding the findings squirepattonboggs.com 30 EWDTS Guidelines (Part 2) Acceptable Screening Techniques Immunoassays Gas Chromatography High Performance Liquid Chromatography All chromatographic techniques coupled to mass spectrometry Capillary Zone Electrophoresis Quality Assurance

Drug testing labs must have a quality management system which includes: Specimen receipt Chain of custody Security and reporting of results Screening and confirmation testing Certification of calibrators and controls Validation of analytical procedures squirepattonboggs.com 31 ACAS Guidance on Drug and Alcohol Policies The Purpose of a Drug and Alcohol Policy To protect employees and workers To encourage those suffering from drug and alcohol problems to seek help To provide management with education on signs of drug and alcohol abuse, how to assist workers

seeking help and where to find expert advice To show management and other employees/workers that it is better to deal with the problem at an early stage than to cover up for someone with a drug or alcohol problem squirepattonboggs.com 32 Case Study Bus Driver Succeeds in Unfair Dismissal Claim The Claim November 2018 Employment Tribunal Kenneth Ball succeeded in an unfair dismissal claim against his former employers First Essex Buses Limited Mr Ball was dismissed for gross misconduct after a saliva test carried out after his shift, tested positive for cocaine Kenneth Balls Argument Worked as a bus driver for over 20 years, denied taking cocaine and informed his employer that he had

only ever taken prescribed medication He suggested the cocaine could have been present to due contaminated bank notes handled whilst at work To prove his case he had two private hair follicle tests (known to be more reliable than the saliva test carried out by his employer) carried out, both of which came back negative First Essex Buses Limited refused to take these tests into account because they were not company procedure squirepattonboggs.com 33 Case Study Bus Driver Succeeds in Unfair Dismissal Claim (Cont.) Judgment Employment Judge Tobin found in favour of Mr Ball

The companys own policy made it clear that all evidence had to be considered during the disciplinary process To discount evidence on such a basis was illogical, grossly unfair and in breach of the disciplinary procedures" Awarded Mr Ball 37,369 in compensation Union Criticism Unite trade union highly critical of First Essex Buses Limited Like several other unions they expressed strong concerns about the use of workplace drug testing squirepattonboggs.com 34 Recent fines and sentencing update squirepattonboggs.com

Recent Fines & Sentencing Update Manslaughter - Sentencing Guidelines R v Electricity NW Ltd - Court of Appeal August 2018] R v Squibb Group Ltd R v NPS London Ltd squirepattonboggs.com 36 Recent Fines & Sentencing Update Guidelines apply to all offenders (aged over 18) sentenced on or after 1 November 2018 Types of manslaughter covered by the Sentencing Guidelines Gross Negligence Manslaughter Unlawful Act Manslaughter

Manslaughter by reason of loss of control Manslaughter by reason of diminished responsibility squirepattonboggs.com 37 Recent Fines & Sentencing Update Gross Negligence Manslaughter Envisaged that the Guidelines will increase sentences Acknowledging that current sentencing practice in these sorts of cases is LOWER in the context of overall sentences for manslaughter of other types squirepattonboggs.com 38

Recent Fines & Sentencing Update Culpability (Page 10) A = Very High B = High C = Medium D = Low squirepattonboggs.com 39 Recent Fines & Sentencing Update Starting points and category range (Page 11) Very High

10 < 12 > 18 years custody High 6 < 8 > 12 years custody Medium 3 < 4 > 7 years custody Low 1 < 2 > 4 years custody squirepattonboggs.com

40 Recent Fines & Sentencing Update Adjustment up or down from Starting Point to take into account: Aggravating factors (page 12) Mitigating factors (page 13) squirepattonboggs.com 41 Recent Fines & Sentencing Update Paul White - 2005 Director of recycling business Employee climbed into paper shredding machine to clear a blockage The machine started and the employee sustained fatal injuries

squirepattonboggs.com 42 Recent Fines & Sentencing Update Paul White continued No system of isolation No interlock fitted Custom and practice to clear blockages with machine live PW had received advice about dangerous practices from H&S consultant and chose to ignore it squirepattonboggs.com 43

Recent Fines & Sentencing Update Paul White continued Guilty plea entered Judge - "Only an immediate custodial sentence will suffice as punishment for you and to make it clear that courts will not countenance a situation such as arose in this case" Sentence - 12 months custody squirepattonboggs.com 44 Recent Fines & Sentencing Update Paul White continued Applying Sentencing Guidelines (retrospectively) Adopting conservative approach High culpability

6 < 8 > 12 years custody Adopting Starting Point and applying 1/3 discount for guilty plea = 5 years squirepattonboggs.com 45 Recent Fines & Sentencing Update Mark Connelly - 2006 Tebay rail tragedy - 4 maintenance workers killed in February 2004 Hydraulic brakes on 3 tonne flatbed trailer were disconnected/wound off Trailer put on track with only wooden chocks to stop it moving Wagon over ran the chocks and travelled 4 miles down the track hitting and killing 4 maintenance workers Connelly accused of sabotaging the trailer for financial gain

squirepattonboggs.com 46 Recent Fines & Sentencing Update Mark Connelly continued Sentence - 9 years custody (after trial) reduced to 7 years on appeal squirepattonboggs.com 47 Recent Fines & Sentencing Update Mark Connelly continued Applying Sentencing Guidelines (retrospectively) Very High culpability

10 < 12 > 18 years custody Aggravating features would increase the Starting Point to say 15 years and no credit for guilty plea squirepattonboggs.com 48 R v Electricity NW Ltd Court of Appeal 23 August 2018 Facts of case: On 22 November 2013, John Flowers, a linesman employed by the Defendant, was clearing ivy from vertical wooden pole He was wearing a work positioning belt which was designed to allow him to lean back whilst working at height He was NOT wearing a fall arrest lanyard Whilst clearing vegetation with a handsaw he cut through work positioning belt and fell sustaining fatal

injuries squirepattonboggs.com R v Electricity NW Ltd Court of Appeal 23 August 2018 The following hierarchy was not disputed: 1. Mobile Elevated Work Platform (MEWP) 2. Ladder 3. Positioning belt used in conjunction with fall arrest lanyard squirepattonboggs.com 50 R v Electricity NW Ltd

Court of Appeal 23 August 2018 Three offences: Count 1 Breach of Regulation 3 of Management of Health & Safety at Work Regulations 1999 Suitable and sufficient risk assessment Count 2 Regulation 4 Work at Height Regulations 2005 (strict liability) Properly planned Appropriately supervised Carried out in a safe manner Count 3

Section 2 Health and Safety at Work etc Act 1974 Safe systems of work for employees (reasonable practicability) squirepattonboggs.com 51 R v Electricity NW Ltd Court of Appeal 23 August 2018 Prosecution case Work to clear vegetation on pole was not properly planned, supervised or carried out in a safe manner (Reg 4). Planning component included proper selection of work equipment There was a generic risk assessment which prescribed the hierarchy - no site specific risk assessment for clearing vegetation Employees not told they would need to clear ivy from pole

Vegetation management team were on site with MEWP MEWP was not available to Mr Flowers He got into position using a ladder and then used belt in isolation to cut the ivy squirepattonboggs.com 52 R v Electricity NW Ltd Court of Appeal 23 August 2018 At first instance Jury finds: Count 2: Guilty Counts 1 and 3: Acquittal squirepattonboggs.com

53 R v Electricity NW Ltd Court of Appeal 23 August 2018 At first instance Judge finds: High Culpability Level A - Seriousness of Harm "RISKED" Harm Category 3 Likelihood of Harm Arising - Low 250,000 < squirepattonboggs.com 540,000

> 1.45 m 54 R v Electricity NW Ltd Court of Appeal 23 August 2018 Just at first instance Def is a Very Large Company so upward adjustment of the Starting Point required to reflect that Conventional practice to go up a Harm Category 550,000 < 1.1m > 2.9m Judge imposes a fine of 900,000 squirepattonboggs.com

55 R v Electricity NW Ltd Court of Appeal 23 August 2018 Appeal Conviction Conviction on Count 2 was not consistent with acquittals on Counts 1 and 3 Sentence Fine was manifestly excessive Assessment of High Culpability was inconsistent with acquittals on Counts 1 and 3 In turn meant Starting Point was too high Judge was wrong in automatically applying an upward adjustment to Starting Point to reflect Very Large Company. It was not necessary to upwardly adjust to achieve a proportionate sentence squirepattonboggs.com

56 R v Electricity NW Ltd Court of Appeal 23 August 2018 Court of Appeal Conviction MEWP was required (top of hierarchy) and was not there. One was there fortuitously but it was not planned and was not available for use by Mr Flowers Breach of planning element of Reg 4 (strict liability offence) Jury entitled to convict on Count 2 and acquit on Counts 1 and 3 Sentence In light of the Jury's verdicts, Culpability should be between Low and Medium Level A - Seriousness of Harm "RISKED" Low Likelihood of Harm Arising Harm Category 3

squirepattonboggs.com 57 R v Electricity NW Ltd Court of Appeal 23 August 2018 Court of Appeal Adopting Large Company Table Medium Culpability 130,000 < 300,000 >

750,000 Low Culpability 10,000 35,000 > 140,000 < Imposed fine of 135,000 [Mid-point between top of Low Culpability and bottom of Medium Culpability]

No further upward adjustment to reflect turnover NB - No upward adjustment to reflect death (Whirlpool) - advocated adjustment upwards to top of next category range. squirepattonboggs.com 58 R V Squibb Group Limited and NPS London Ltd Court of Appeal - 26 February 2019 squirepattonboggs.com

R v Squibb Group Limited Case involved a construction project to refurbish a school in South London The school had been built at a time when asbestos was routinely used in construction Control of Asbestos Regulations 2006 applied to the construction project Duty to ensure that a suitable and sufficient assessment is carried out to identify whether asbestos on the premises and to put in place control measures squirepattonboggs.com 60 R v Squibb Group Limited Project was managed by NPS London Ltd on behalf of the Local Authority

Squibb Group Ltd were engaged as a sub-contractor to carry out demolition work squirepattonboggs.com 61 R v Squibb Group Limited NPS commissioned an asbestos survey from Redhill The Redhill asbestos survey identified areas of the school where asbestos was present and steps were taken to remove the asbestos safely Part of the demolition work was completed in April 2012 during the Easter holidays Demolition work resumed in July 2012 when a large clump of asbestos was found in area above a suspended ceiling by a Squibb employee squirepattonboggs.com

62 R v Squibb Group Limited Work ceased and a new asbestos survey was commissioned New survey confirmed widespread presence of asbestos sprayed on ceilings throughout the school This meant that parts of the building which had been demolished had contained asbestos There was dispute as to whether the previous report made clear that certain areas had or hadnt been surveyed AND whether Squibb employees had reviewed the previous report squirepattonboggs.com 63 R v Squibb Group Limited

HSE charges against Squibb Sec 2 HSWA (employees) Sec 3 HSWA (non-employees) No dispute that Squibbs employees and non-employees (staff and children at school) were exposed to risk of inhaling asbestos fibres No dispute that inhalation of fibres carries long-term risk of contracting a potentially fatal asbestos related disease Level A Seriousness of harm (risked) - Agreed Prosecution case was that Squibb needed to satisfy itself that there was no risk of disturbing asbestos during the demolition works squirepattonboggs.com 64 R v Squibb Group Limited

Judge directed the Jury to consider the two counts separately on the basis that the categories of people said to be put at risk were different Jury Convicted on Count 1 - Sec 2 HSWA (employees) Acquitted on Count 2 - Sec 3 HSWA (non-employees) The court imposed a fine of 400,000 Squibb appealed against conviction and sentence squirepattonboggs.com 65 R v Squibb Group Limited Squibbs appeal against conviction:

Primary ground of Appeal against conviction: The guilty verdict on Count 1 was inconsistent with the acquittal on Count 2 such as to make the conviction on Count 1 unsafe squirepattonboggs.com 66 R v Squibb Group Limited Court of Appeal inconsistent verdict Appellant must persuade the court that no reasonable Jury could have reached the differing verdicts that the Jury has in fact reached on the evidence And Inconsistency is such that it demands interference by the Appellate Court because they think it makes the defendants conviction unsafe

squirepattonboggs.com 67 R v Squibb Group Limited Court of Appeal - inconsistent verdict Jury was entitled to find that Squibbs employees were exposed to much higher levels of asbestos than non-employees Level of risk of exposure to asbestos was at its highest during demolition work and clearing up the rubble - performed by Squibb employees Jury were entitled to find that risks to non-employees were substantially lower Not persuaded the two verdicts are inconsistent squirepattonboggs.com 68

R v Squibb Group Limited Court of Appeal uphold the conviction squirepattonboggs.com 69 R v Squibb Group Limited Squibb - Sentencing - First Instance Culpability - High - on basis that Judge found that Squibb "fell far short of the appropriate standard" Judge found: Squibb did not have a proper system to obtain, review and act upon any asbestos survey Failings reflected a lax approach on part of senior managers which subsisted over a significant period of time

Failings within organisation were both serious and systemic to address a material risk squirepattonboggs.com 70 R v Squibb Group Limited Squibb - Sentencing Decision - First instance High Culpability Seriousness of Harm (risked) - Level A (agreed) Harm Category 2 Likelihood of Harm Arising - Medium Squibbs turnover was 43.4m - Medium sized Organisation squirepattonboggs.com

71 R v Squibb Group Limited Squibb - Sentencing decision - First instance 220,000 < 450,000 > 1.2 m Adjusted started point down to 400,000 to take into account: no previous convictions improved procedures post-incident

squirepattonboggs.com 72 R v Squibb / NPS Squibb Sentencing - Court of Appeal Squibbs grounds of appeal against sentence: Culpability - High Likelihood of Harm (arising) - Medium squirepattonboggs.com 73 R v Squibb / NPS

Squibb Sentencing - Court of Appeal Squibbs Grounds of Appeal - Culpability Failed to take into account that jury had found that Squibb had taken all reasonably practicable steps in terms of non-employees Employees properly trained to manage asbestos risk squirepattonboggs.com 74 R v Squibb / NPS Squibb Sentencing - Court of Appeal Court of Appeal - Culpability Judge was dealing with an organisation that specialised in this type of work and could routinely expect to encounter risks created by presence of asbestos. Judge was entitled to conclude that Squibb had fallen far short of appropriate standard and therefore

culpability should be assessed as high. squirepattonboggs.com 75 R v Squibb / NPS Squibb Sentencing - Court of Appeal Squibb's grounds of appeal - likelihood of harm Likelihood of Harm (arising) - Medium at first instance. Squibb introduced expert evidence which relied upon Statistical data from published studies If 100,000 were exposed to Asbestos in similar circumstances to Squibbs employees 90 deaths would result As opposed to 20,000 per 100,000 from smoking cigarettes or 500-600 per 100,000 from working in construction industry for 40 years or an accident on the roads

squirepattonboggs.com 76 R v Squibb / NPS Squibb Sentencing - Court of Appeal Court of Appeal - Likelihood of Harm (arising) On basis of expert evidence - likelihood that one of Squibbs employees will die as a result of breach is on any view extremely small. Judge gave no reason for disregarding or disagreeing with the expert evidence - he was wrong to do so. The only reasonable conclusion on the available evidence was that likelihood of harm arising was low. squirepattonboggs.com 77

R v Squibb / NPS Squibb Sentencing - Court of Appeal High Culpability Seriousness of Harm (risked) - Level A (agreed) Harm Category 3 Likelihood of Harm (arising) - Low Squibbs Turnover - 43.4m - Medium sized organisation squirepattonboggs.com 78 R v Squibb / NPS Squibb Sentencing - Court of Appeal 100,000

< 210,000 > 550,000 Judge took starting point and applied a modest downward adjustment of 10% for mitigating factors Adopting similar rationale we take the starting point of 210,000 and reduce it to 190,000 Fine at first instance [400,000] substituted by fine of 190,000 squirepattonboggs.com 79

R v Squibb / NPS NPS London - Sentencing - First Instance NPS were managing project on behalf of Local Authority NPS commissioned Redhill Asbestos Survey NPS admitted that it failed to recognise deficiency in survey and as a consequence failed to take all reasonably practicable steps to prevent exposure to asbestos fibres during the construction project NPS pleaded guilty to offence under S3 HSWA (Non-Employees) squirepattonboggs.com 80 R v Squibb / NPS NPS London is a Joint Venture Company owned by: NPS Property Consultants Ltd (NPS Parent) - 80% - ultimately controlled by Norfolk County Council

London Borough of Waltham Forest (Local Authority) - 20% Profits shared equally by Norfolk County Council and Local Authority squirepattonboggs.com 81 R v Squibb / NPS NPS London - Sentencing - First Instance Culpability - High Seriousness of Harm (risked) - Level A Harm Category 2 Likelihood of Harm (arising) - Medium

squirepattonboggs.com 82 R v Squibb / NPS NPS London - Sentencing - First Instance Turnover and range of fine: NPS London was 5 - 6 million (small organisation) 50,000 < 100,000 >

450,000 NPS Parent was 125 million (large organisation) 550,000 < squirepattonboggs.com 1.1m > 2.9m 83

R v Squibb / NPS NPS London - Sentencing - First Instance For sentencing the Judge adopted the table for a Large Organisation on basis of passage from the Guidelines: "Normally only information relating to the organisation before the court will be relevant unless exceptionally it is demonstrated that the resources of a linked organisation are available and can properly be taken into account" squirepattonboggs.com 84 R v Squibb / NPS NPS London - Sentencing - First Instance NPS London had no previous convictions

Co-operated with investigation Failing were not deliberate Profitability of organisation is low and it operates for benefit of local authorities TAKING ABOVE FACTORS INTO ACCOUNT the Judge took the bottom end of the bracket for a Large Organisation (550,000) and reduced it by 1/3 for early guilt plea FINE of 370,000 squirepattonboggs.com 85 R v Squibb / NPS NPS London - Sentencing - Court of Appeal Issues on Appeal: 1. Was the Judge entitled to regard the NPS Parent as a "Linked Organisation" whose resources can properly be taken into account for sentencing purposes

2. If so, was the Judge correct in adopting the Large Organisation table for sentencing purposes squirepattonboggs.com 86 R v Squibb / NPS NPS London - Sentencing - Court of Appeal Judge was wrong to read the Guidelines as entitling him to consider NPS London as a Large Organisation It is the turnover of the Defendant that is relevant in determining the SIZE of organisation and the appropriate table in the Guidelines If it can be shown that the Defendant will not be dependent on its own financial resources to pay the fine but can rely on a linked organisation to provide requisite funds - that should be taken into account when considering whether the proposed fine is proportionate to the overall means of the Defendant taking into account "the economic realities of the Organisation"

Consistent with CoA decision in Tata Steel UK Ltd squirepattonboggs.com 87 R v Squibb / NPS NPS London - Sentencing - Court of Appeal Judge was entitled to conclude that NPS Parent was a Linked Organisation because of operation of "going concern" provision in the NPS London accounts NPS London was loss-making and insolvent on a balance sheet basis, with negative equity of 4.5m "going concern" provision confirmed Parent would provide any finance support required for a period of at least 12 months squirepattonboggs.com

88 R v Squibb / NPS NPS London - Sentencing - Court of Appeal Judge should have adopted Small Organisation table for sentencing purposes: 50,000 < 100,000 > 450,000 Appropriate starting point = 100,000

Reduction for mitigating factors - 25% = 75,000 No further reduction based on means of NPS London (loss making) because NPS could rely upon Parent to provide required funds in accordance with going concern provision Reduction for early guilty plea - 33% Fine of 50,000 reduced from 370,000 at first instance squirepattonboggs.com 89 R V Faltec Europe Limited Court of Appeal 28 March 2019

squirepattonboggs.com Faltec Europe Limited The facts: Faltec manufactured car parts at its factory in the North East The factory was located in a well populated urban area Turnover 33-39m Holding Company turnover 550-600m Case concerned two distinct different breaches: Legionella outbreak Count 1 - Section 3 HSWA Count 2 - Section 2 HSWA Explosion on flocking machine Count 3 - Section 2 HSWA

squirepattonboggs.com 91 Faltec Europe Limited The Legionella case Four cooling towers and 22km of pipework within the factory Legionella contaminated one of the cooling towers Over the period October 2014 to June 2015, five people were infected and diagnosed with Legionnaires' disease: Four worked at the Faltec site One lived near to the site The most severe case resulted in time spent in intensive care under an induced coma, lasting 10 days squirepattonboggs.com

92 Faltec Europe Limited The Legionella case "Dead legs" - lengths of pipe which had been capped off had allowed bacteria to develop Specialist water contractor, Guardian Water Treatment ("GWT"), had failed to maintain an effective dosing regime, which would have neutralised the bacteria Faltec had failed to put in place a written regime for monitoring the activities of GWT HSE had given warnings to Faltec in 2012 and 2013 about: State of pipework Effectiveness of biocide dosing Judge acknowledged the appointment of GWT prior to the advice in 2013 but underlined it was not GWT's responsibility to remove the "dead legs" squirepattonboggs.com

93 Faltec Europe Limited The Flocking Machine Case The Flocking Machine (B14) was acquired from the Holding Company for 90,000 less than a price quoted by a third party supplier. B14 arrived at Faltec in March 2014 and commenced operation in October 2014. Between December 2014 and April 2015 there had been two fires on machine B14. The risk of explosion is ever present as the Flock Cloud produced in the machine is not only electrically charged but it is also highly flammable. On 16 October 2015 an apprentice walked past the air blast unit and saw a part had fallen off the rollers. He decided to lift the polycarbonate guard and placed it on top of the air blast unit so that he could use both hands to remove the part. This did not stop the machine from operating as it was not interlocked. Whilst leaning into the machine to remove the part an explosion occurred as a result of which the apprentice suffered first degree burns to his face and arms.

Probable cause of the explosion was that the part being removed touched the live electrostatic grid creating a spark which initiated the explosion. squirepattonboggs.com 94 Faltec Europe Limited Faltec's antecedence: Two previous H&S convictions: 1 2006 a fatality 2 2012 an employee was gravely injured squirepattonboggs.com 95

Faltec Europe Limited Legionella Sentencing at first instance Culpability Faltec contended that it should be low. Prosecution contended that it should be medium. Judge decides in favour of prosecution but noted that it could be regarded as high because there had been serious and systematic failures within the organisation to address grave H&S risks. squirepattonboggs.com 96 Faltec Europe Limited Legionella sentencing at first instance Seriousness of harm risked Level A (agreed)

squirepattonboggs.com 97 Faltec Europe Limited Legionella Sentencing at first instance Likelihood of harm arising Faltec contended for Low Prosecution contended for High Faltec relied on statistics stating the risk of a fatality from Legionnaires disease is 0-0.04%. HSE relied on statistics stating that 10-15% of those who contracted Legionnaires disease might die. Judge: "I do not consider that a risk of between 0-0.04% of death resulting could possibly be described as low, when considering an urban area." Judge decides likelihood of harm arising was High.

squirepattonboggs.com 98 Faltec Europe Limited Legionella sentencing at first instance Faltec turnover under 50m and therefore a medium sized organisation table at bottom of page 7 of the Guidelines. Seriousness of harm risked - Level A Likelihood of harm arising - High

} Harm Category 1 300,000 < 540,000 > 1.3m squirepattonboggs.com 99 Faltec Europe Limited Legionella sentencing - at first instance Aggravating factors 1. Previous convictions 2. Poor safety record

Adopts starting point of 1.2m near to top of range. No downward adjustment to reflect Faltec were loss making because of "Going Concern" provision in accounts which referred to financial support of the Holding Company. Faltec had made provision of 1.6m in its accounts for fines relating to legionella and Flocking Machine breaches. Judge said it did not influence the level of fine but was an indicator of financial health. Judge simply deducted 1/3 from 1.2m to reflect early guilty plea resulting in a fine of 800,000. squirepattonboggs.com 100 Faltec Europe Limited Flocking Machine Sentencing - at first instance Culpability High Faltec fell far short of the appropriate standard. It allowed itself to be sold a machine by its Holding Company which it knew was not certified to industry

standard. Lack of training. Harm Likelihood of harm - High Judge was unsure if seriousness of harm risked was Level B or C but adopting Level C and moving up a harm category to reflect that the offence was a significant cause of actual harm got him to Harm Category 2. squirepattonboggs.com 101 Faltec Europe Limited The Flocking Machine Sentence at first instance Culpability High Harm Category 2

220,000 < 450,000 > 1.2m Aggravating factors - previous convictions - breaches of enforcement notices - duration of breaches -

poor H&S record There was no real mitigation Case verged on Very High Culpability on basis that As a result of agreeing to the lesser price from the Holding Company in Japan, Faltec was well aware that it was taking on a heavy burden in ensuring the machine was safe. squirepattonboggs.com 102 Faltec Europe Limited The Flocking Machine Sentence at first instance The machine had been in operation for a year and the injuring explosion was its third in that period. This was an accident waiting to happen and no sufficient steps were taken to prevent it.

Judge chose a starting point of the very top of the Category Range - 1.2m. Only further adjustment was 1/3 discount for early guilty plea resulting in a fine of 800,000. squirepattonboggs.com 103 Faltec Europe Limited Main Issues on Appeal Legionella Culpability Judge was amply entitled to conclude that Faltecs culpability was at the top end of medium. Moreover, given the serious systemic failure of oversight, through the lack of written guidance, the Judges finding may be regarded as generous to Faltec. squirepattonboggs.com

104 Faltec Europe Limited Main Issues on Appeal Legionella Likelihood of Harm arising (High at first instance) C of A Although there is no precise evidence as to Level A harm risked other than death, it is logically inescapable that if the risk of death is 4 in 10,000, there must be risk of other Level A harm (organ failure or septic shock leading to coma) in the remaining percentage. We are satisfied that the likelihood of Level A harm arising from those outbreaks of Legionella in a densely populated urban area is Medium. We do not think the Judges categorisation (High) can be sustained in light of the statistical evidence before the Court. squirepattonboggs.com

105 Faltec Europe Limited Main Issues on Appeal Legionella Likelihood of Harm arising moving from High to Medium High 300,000 Medium 100,000 < 540,000 > 1.3m < 240,000 > 600,000

We share the Judges view that Counts 1 and 2 call for a fine towards the top end of the new category range. We fix that figure at 570,000. After 1/3 discount for early guilty plea produces a fine of 380,000 (first instance fine - 800,000). squirepattonboggs.com 106 Faltec Europe Limited Main Issues on Appeal Legionella Aggravating factors Judge was amply entitled to take into account Faltecs two previous convictions as an aggravating factor on the basis that they were significant and substantial convictions and they very significantly aggravate these convictions. Furthermore our treatment of culpability has not reflected them at all, so there is no double counting.

squirepattonboggs.com 107 Faltec Europe Limited Main Issues on Appeal Legionella Financial position Judge took into account the financial resources of the Holding Company so as to deprive Faltec of a downward adjustment to reflect that it was loss making, on the basis that: Going concern provision in 2015 and 2016 accounts In 2017 a 36m inter-company loan from the Holding Company to Falke had been written off because the outstanding loans were at a level that they could not realistically be repaid. As per Tata Steel it would be wrong to ignore the Holding Companys resources and would produce a misleading and unrealistic picture of Faltecs resources.

squirepattonboggs.com 108 Faltec Europe Limited Main Issues on Appeal Legionella Provision for fine in the Accounts Judge said he had ignored provision in terms of level of fine but it was an indicator of financial health. C of A Unable to agree that provision should form part of proportionality assessment. The danger is one of unintended consequences namely discouraging prudent reserving. The better course is to exclude such provisions from the sentencing exercise. squirepattonboggs.com

109 Faltec Europe Limited Main Issues on Appeal Flocking Machine Culpability The inescapable factual assessment casts Faltec in an extremely unfavourable light. No realistic basis for criticism of the Judges categorisation of culpability as High. squirepattonboggs.com 110 Faltec Europe Limited Main Issues on Appeal Flocking Machine

Seriousness of Harm risked A credible case could have been made out for Level B. The Judge was not sure whether the harm came within Level B or C. Court of Appeal say on that footing that the correct course was to categorise seriousness of harm risked as Level C. The Judge having set Seriousness of Harm risked at Level C then moved up a harm category from 3 to 2 to reflect the offence was a significant cause of actual harm. Court of Appeal agree with Judges approach of moving up harm category. squirepattonboggs.com 111 Faltec Europe Limited Main Issues on Appeal Flocking Machine

Fine of 800,000 upheld by Court of Appeal Total fine of 1.6m reduced on Appeal to 1.18m No further reduction for totality consistent with sentence at first instance squirepattonboggs.com 112 Any Questions? ? squirepattonboggs.com 113

Contact Info Slide Rob Elvin Partner Environmental, Safety & Health T +44 161 830 5257 E [email protected] squirepattonboggs.com 114 Our Blog FrESH Law Blog http://www.freshlawblog.com

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