I HAVE been asked to consider the Health and Safety Executive (HSE) this month, which is a theme I have returned to a number of times from reviewing the Fire Order to considering risk assessments.

One of the areas of concern when looking at the involvement of HSE is how much they target the waste industry, or otherwise. A particular item of interest (and concern) which has emerged from an analysis of data for those deaths recorded are that they are on a national increase: from 137 in 2016/17 to 144 in 2017/18. This does not include members of the public, but actual fatalities in the workplace.

The waste and recycling sector is confi rmed as one of the most dangerous places to work with a 10% contribution to the fi gure for 2018. There are many examples of successful prosecutions on the HSE website. and it would be useful to know existing prosecution fi gures for the waste recycling sector.

The reason for this is there are often times the investigation and subsequent prosecution are judged after an incident.

One waste management company was fi ned £250,000 after an employee was fatally crushed inside a baling machine, having fallen down the hopper into the compaction chamber.

Accident preventable

The HSE investigation found that a safe method for clearing blockages and instructing workers on it could have prevented the accident, so not having eff ective control measures in place to assess the risk from dangerous parts of the machinery led to a prosecution under Section 2(1) of the Health and Safety at Work Act 1974. Another recent case involved a scrapyard operator who tried to obstruct the HSE investigators when an employee had suff ered a severe electric shock. The judge was unimpressed and did not react kindly to his subsequent guilty plea, describing a ‘cavalier attitude to health and safety’ when he imposed a custodial

22 SHWM September, 2018


Deaths in the workplace on the increase nationally

WASTE lawyer DOMINIC MCNABB is an experienced solicitor in private practice with MJP solicitors. He has more than 20 years of experience defending both individuals and companies, in both criminal and regulatory legal-related matters.

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sentence. The operator’s attempts to disguise the situation from the HSE was seen as an aggravating feature and resulted in a six-month sentence.

One waste management company was fi ned

£250,000 after an employee was fatally crushed inside a baling machine

For companies and individuals there is a need to review policies and promote training, and there are plenty of HSE consultants to assist both of these.

One of the things for operators to be aware of is the Sentencing Guidance, which looks at various factors for establishing blame by describing culpability as either high or low - so recognising a risk over a period of time, and doing nothing to address it or failing to investigate an incident, can lead to a higher fi ne or even custody for the individual.

In my experience when something goes wrong there is a need at that point for a lawyer to assist with the investigation, and I have come across some clients (mainly in the construction industry) who have thought dealing with the matter themselves showed co-operation! However, I met these when they were being prosecuted as a result of dealing

with the matter themselves, and not instructing a solicitor at any stage of the investigation.

There are distinct advantages to dealing with investigations by involving lawyers immediately after an incident.

A lawyer may prepare or commission an expert report in contemplation of litigation, which will usually mean the defendant can claim legal privilege. This in turn cannot be compelled to be disclosed by the HSE or local authority under s20 of the Health and Safety Act. However, it can be relied on in defending subsequent proceedings or arguing points in mitigation such as the culpability issues mentioned.

One point to bear in mind on the statistics reviewed is the present HSE Business Plan provides clear insight that there will be a reduction of £5m from the Treasury of income, which will result in a total of £130.6m.

Parallel to this, expenditure for the HSE Business Plan is predicted to be £228m, so a shortfall of £97m needs to be found from somewhere.

There must be the likelihood of targeted inspections and fees for investigations to be increased in order to meet this, and it is a distinct risk that the waste industry and specifi cally the smaller operator could be targeted.

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