A common misconception is that workplace health and safety incidents are only investigated by the Health and Safety Executive. In this article, we look at the jurisdictional split between the Health and Safety Executive, local authorities and The Office of Rail Regulation and whether there are differences in relation to conviction rates and the levels of fines imposed.
When you have a potential health and safety investigation on your hands, it is essential to know who will be carrying out the investigation. In the UK breaches of health and safety are investigated by:
- The Health and Safety Executive (HSE), or
- The Local Authority, or
- The Office of Rail Regulation (ORR)
Whilst it is not covered within this article, it should also be noted that all workplace fatality investigations are initially conducted by the police. They will only continue in that role if they are satisfied that there is evidence of gross negligence, otherwise, as in the vast majority of cases; the investigation will pass to one of the bodies above.
The ORR clearly deals with the regulation of the operation of railways and other guided transport systems, including heritage, metros and light rail systems, in accordance with its own enforcement policy. The jurisdictional split between the HSE and Local Authorities generally operates on the principle that the HSE regulate higher risk workplaces such as farms, building sites, factories, offshore and nuclear installations. They also have jurisdiction for schools and colleges, and hospitals and nursing homes. Local authorities have jurisdiction in relation to offices, shops, retail and wholesale distribution centres, leisure, hotel and catering premises.
Prosecutions and fines
Over the last five years, the number of cases prosecuted by HSE, local authorities and, in Scotland, the Crown Office and Procurator Fiscal Service* has remained fairly constant.
HSE: Looking at the most recent statistics published, we can see that the HSE prosecuted 597 cases (2012-13), with a conviction secured in 568 cases (conviction rate of 95%). The HSE prosecuted 973 separate offences of health and safety, resulting in 849 convictions, a conviction rate of 87%. Duty holders found guilty of health and safety offences prosecuted by the HSE received fines totalling £12.9 million, an average penalty of £15,153 per offence.
Local authorities: Local authorities (of which there are a total of 348 in England and Wales) prosecuted 109 cases within the same period, with a conviction secured in 104 cases (conviction rate of 95%). A total of 244 separate offences were prosecuted, resulting in 220 convictions, a conviction rate of 90%. Duty holders found guilty of health and safety offences prosecuted by local authorities received fines totalling £2.1 million, an average penalty of £9,528 per offence.
ORR: In the same year, only 11 prosecutions were brought. The fines for these prosecutions ranged from £400 to £4,000,000, a considerable difference. This led to total fines for the period of £5,473,150, an average fine per offence of £497,560.
On first impression it would appear from these figures that investigation and prosecution by the local authority would be preferable as although the conviction rate is similar to the HSE, the fines are considerably lower. However, this may just be reflective of the industries for which local authorities have jurisdictions as they are generally lower risk and breaches may be less serious. In addition, the fact that only 109 prosecutions were brought out of a total of 348 local authorities suggests that they generally have a very low enforcement rate.
Although only a small number of prosecutions are brought by the ORR every year, the consequences of these prosecutions can be dire, and the fines considerable. The average fine per offence is over 50 times that of local authorities. Again, this is likely to be reflective of the industry in which they operate, and it should be noted that the largest fine given was for an incident where a train derailed causing the death of one passenger and injuring 86 people.
Finally, one very important point to note is that Fees for Intervention (FFI) can only be levied by the HSE, so pre-investigation costs can be recovered at higher rates and in circumstances not available to the other two bodies. If you are the subject of an investigation by the HSE which results in a finding that there has been a material breach you will have to cover their costs even if they decide not to bring a prosecution.
*In Scotland, HSE and local authorities investigate potential offences but cannot institute legal proceedings themselves. They must send a report to the Crown Office and Procurator Fiscal Service, which makes the final decision as to whether to institute legal proceedings and the charges to be brought.
** Contains public sector information published by the Health and Safety Executive and licensed under the Open Government Licence.
Author: Ffion HughesThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.