Accidents, Prosecutions & the Law.
ER, The Good Wife and reality…
So I love, and I do mean love, the above TV shows. In fact I could sit up all night and overdose (forgive the pun) on them both. But what do they have to do with Health & Safety I hear you ask… Well, probably not a lot but ER does tie in a little with accidents and the Good Wife is a legal show. Yes, that is probably about the only ties. Other than there have been story lines dealing with accidents at work and the legal consequences. That said, I won’t be discussing those in detail rather I will cover topics and issues that may actually be of use to you!
Your employee is at work and they are injured, what should you do after the accident? This will depend on the injury sustained. Now brace yourself… under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations) you will find what injuries and work related illnesses are required to be reported to an enforcing authority.
In ER the injuries are always going to be most likely life threatening, gruesome and pretty much in need of that all important miracle work by the ever so good looking doctors and nurses! Which usually occurred at least a couple of terrible unfortunate people before the obligatory death usually at the end of the episode.
Going back to the dull material for a little while anyway… since 6 April 2012, only accidents resulting in incapacitation of more than seven days (excluding the day of the accident) must be reported. The Employer has 15 days from the day of the accident in which to report it.
Previously it was accidents resulting in incapacitation of more than three days although these must still be recorded.
You must have an accident book and this should record the date and details of each accident, including the injured person’s name. Remember, your accident book and any information you record about incidents and the individuals affected must comply with the Data Protection Act.
In some cases, you are also required to report certain ‘dangerous occurrences’ and near misses to your enforcing body, even if they do not result in an injury.
If you want to find out more about your reporting obligations then a good starting place is the Health and Safety Executive website. Of course you can always give us a call, we are always #HappyToHelp.
That takes care of what is reportable and of course if the accident is serious then there will numerous other factors and issues you need to consider. There will be matters such as investigations both internal and external, who to notify other than just the enforcing authority especially if it is likely to end up in a prosecution and result in press coverage! A blog will be coming soon based on this so keep an eye out to #GetLawSavvy.
Moving on from ER to The Good Wife. Let’s look at some of the simple legal issues and consequences of an accident. If an accident occurred was investigated and thereafter your company was taken to court and prosecuted for a Health & Safety offence, what fines could you face?
This depends hugely on several different factors but specifically what you are prosecuted for and in which Court the case is to be brought. Generally speaking the more serious the incident/ accident then the more serious charge will be brought and the Higher the Court will hear the case. Unlike what you see on the TV you are unlikely to see jury vetting and huge compensation payments being made but the maximum fines are substantial non the less. Also, in reality, you don’t see a lot of cases going to trial.
For a summary case (we are talking Sheriff Court without jury matters in Scotland and Magistrates’ Court in England & Wales) the Maximum fines are £20,000 and/or one year’s imprisonment.
For a more serious offence (solemn procedure in Scotland or a matter heard in the High Court in England & Wales) the fine is unlimited and you could also face up to two years’ imprisonment.
Don’t go thinking it is only your Company that can be fined; fines can be imposed on a company and on individual officers of the company if both are prosecuted. Further, individual directors may also face a disqualification order preventing them from acting as a company director for up to 15 years.
We also shouldn’t forget about the fact that individuals can also be prosecuted for culpable homicide, and manslaughter caused by their gross negligence. This and the last point would be the type of issue that would be used in The Good Wife and they would probably link it to a train disaster or pharmaceutical issue. Purely for a ‘juicy’ story line they would probably have a couple of characters sleeping together to give leverage on testimony. Well, sex sells… apparently.
Finally, we would be remiss if we didn’t mention what would happen if someone died. Lets face it, if this was TV someone almost always dies… for some reason they think it makes better viewing?! So, if a person to whom the business owes a duty of care (such as an employee, or a customer) dies as a result of a gross failure in the way health and safety is managed by senior managers in your business, the business may be guilty of corporate manslaughter/ corporate homicide.
The penalty is an unlimited fine. The court may also make a publicity order requiring your business to publicize its conviction and fine. This is along with, where necessary, requiring the business to put right the reasons for its failure.
Lastly, in reality a lot of businesses ask will having a health and safety policy, carrying out risk assessments and so on be enough to protect me from prosecution and civil claims?
The simple answer here is not necessarily. It is the implementation of the policy that counts. You must do more than just pay lip service to health and safety. There is no point in just having the documentation if you don’t do anything with it! Unlike, TV most H&S cases turn on documentation and testimony from employees about what was or was not actually done! You can’t say you have policy and procedures in place if you don’t ensure that they are known about and are actually followed.
For example, if you see an employee failing to comply with safety requirements, the employee should be reprimanded and warned that repeated failure will lead to disciplinary action. You can’t let them away with it then when someone is injured point to your procedures and say but we have these. It would be easy for the prosecution to point to the fact that management had seen people carrying out work not in compliance with the rules and allowed it to happen.
So don’t get caught, stay safe and healthy. Ensure you are compliant and #GetLawSavvy.