Health and safety law continues to be an ever-changing and developing area of regulation. It is imperative that all relevant businesses and business owners, whether sole traders or substantial corporate entities, are fully aware of those developments and ensure they adapt and train relevant staff accordingly.
While safety should be the uppermost consideration, continued compliance and adherence to health and safety legislation will also assist businesses to avoid regulatory investigation or prosecution. The following are some of the most important recent developments.
New guidelines for gross negligence manslaughter
November 2018 saw the introduction of new sentencing guidelines for manslaughter; this includes individuals convicted of gross negligence manslaughter in connection with health and safety breaches. Importantly, the new guidelines mean that it will not just be the most serious breaches that could lead to prison sentences, with a starting point of four years in custody.
The sentences will be determined partly by establishing the level of culpability; very high, high, medium and lower. Very high culpability will likely be established if cost saving is a motivation for the breach and if there has been a blatant disregard for a very high risk of death. The starting point here will be 12 years imprisonment with a range from 10 to 18 years.
These developments are a reflection of how seriously all businesses should be taking health and safety considerations, whether, for example, construction companies have employees working at height, or restaurants are serving allergy-free meals.
Legal professional privilege
The Court of Appeal decision in Director of the Serious Fraud Office v Eurasian Natural Resources Corp LTD & Law Society  relates to the application of legal professional privilege. This will be specifically relevant to companies involved in regulatory investigations with the Health and Safety Executive [HSE] who are later prosecuted.
The High Court decision had confirmed that certain documents prepared during an earlier internal investigation were not protected by privilege, and should therefore be disclosed when the regulator issued notices compelling their production. However, the Court of Appeal reviewed the decision in September 2018 and disagreed. In doing so, it also made clear that legal advice given to avoid or settle reasonably contemplated proceedings was protected by litigation privilege.
The Court of Appeal was unable to overturn an earlier decision which restricts advice privilege to employees within a company specifically given the task of communicating with and instructing lawyers. As a result, interviews during internal investigations with other staff are not considered privileged and therefore fall to be disclosed. For large companies conducting detailed investigations requiring the input of many employees, this creates significant potential difficulties, in contrast to smaller businesses. Their personnel are all likely to be directly involved, thereby affording the business additional protection.
This case highlights potential concerns for both legal practitioners and businesses, who should be encouraged to investigate and document investigations thoroughly without the potential obligation to later disclose this information relating to that investigation to the prosecuting body.
High fines trend
The HSE published its enforcement statistics in October 2018, which confirmed the expected increase in fines in the last two years. This corresponds with the introduction of the sentencing guidelines for health and safety in February 2016. The statistics reveal that companies now routinely receive fines over £500,000, with the highest fine recorded as £3m. In 2014/2015, before the new guidelines, the average fine was £29,000. This increased to £147,000 in 2017/2018. Again, a stark warning for businesses demonstrating that non-compliance can have a devastating effect on financial health.
Alison Marriott is a senior associate solicitor at national law firm Stephensons