IOSH EDINBURGH BRANCH
Minutes of 196 Edinburgh Branch Meeting
Merchiston Campus, Napier University, Edinburgh – Thursday 13 November 2008 – 1:30pm
Sederunt:
A Sharman L Young K Lloyd A McLeod M Dunne R Lovering A Bell
G MacGregor C Shiels P Sellwood N Olliver B Ferry R Wilson J Fell
J Adamson K Darling S Blythe M Grimmer M Sturgeon V Stewart B Ross
C Lawson S Waddell G Macmillan C O’Connell S Duncan A McNeil A Reid
M Johnstone I Murray I Sinclair J Roberts B Sneddon S McMorland J Reid
H Scott E Scott R Innes K Drum S Forbes D Penman P Ager
S McColm A Fowler J Hepburn R Walker S Hughes D McCormack
A Anwar
Apologies:
Helen Pearson, Ann Diment, Max Bancroft, Freddie Johnston, Kevin O’Donnell, Paul Graham, Colin McGregor, Craig Pender, Ronnie Weir, Barbara Johnston.
1 Chair:
Andrew Sharman took the Chair and outlined the safety arrangements (Fire) and reminded the audience to switch off their mobiles.
2 Minutes of previous meeting: October 2008
Receipt
Anyone not in receipt please email Secretary; pearson@mabbett.com
Accuracy
Query raised on the meeting number, 194 on the minutes when the meeting was 195. Richard Lovering to confirm the number for the October meeting.
Proposed by – Graeme MacGregor
Seconded by – Liz Young
Matters arising
The Chair confirmed that the November meeting was meeting 196.
3 Group Reports
Branch Education Development Adviser: nothing to report
Forth & Tay District: no representative present at meeting: no report supplied.
Public Services Group: see 10-minute talk later in minutes.
Communication
& Media Group: - Networking event scheduled for
03 December 2008 in the
Lecture Room, BT Alexander Bain House, 15 York Street, Glasgow G2 8LA has been
cancelled due to unforeseen circumstances.
(Link to events page: http://www.iosh.co.uk/index.cfm?go=events.details&id=3786
)
4 Members Items
4.1 Question Time Event - 26 November 2008
What can we do to change negative perceptions of H&S? Is enforcement proportionate? Do we have sufficient legislation? All this and more…
Leading edge debate at the Scottish Parliament on 26 Nov
Join us for a glass of wine at 6.00pm
Introductions from Director of HSE and IOSH President and debate 6.30pm.
Premier debate panel including:
Craig Connell QC
Professor Frank Wright
David Watt, Chief Executive, Institute of Directors
Dr Bill Wilson, MSP
This is a strictly limited, ticketed event. IOSH HQ has confirmed that all tickets have been taken, though there is a waiting list for any cancellations.
4.2 Training: 1-day Bond Solon Report Writing Course.
Previous course was oversubscribed, however the Exec Committee would like to know if Members would be interested in another course? Suggested price £160 per person. Please contact any member of the Exec Committee to register your interest.
4.3 Ten-minute talk: Marion Johnstone
Marion – past National Chair of the Public Services Specialist Group & past Chair of the Edinburgh Branch – presented details of a review of Specialist Groups
Public Services Group
She presented a quick update on next year’s National Symposium, which is set to take place on 6th & 7th September in Watford.
Having stepped down from the position of Chair Marion was due to step away from the position of Public Services Representative, but because she had been involved in the preparation of a booklet for “Elected Members” of all Councils who are the Leaders or Chief Executive Officers which is now due to be printed and ready for circulation by February 2009, so she is holding on until that time.
Marion is retiring from the post. Anyone interested in this role please contact the Secretary.
Specialist Group Review
Specialist Groups have been around for many years, where H&S specialists who work in like fields such as Construction, Public Services, etc have gathered together to work towards a joint benefit.
In 2007 a review of the operational conditions of the organization of specialist groups was scheduled and Marion intended to share the results of the review and explain some of the recommendations
Review Recommendations
There were a number of recommendations –
– Drop the “Specialist” element of the title and just keep the heading = “Group” and alight their activity more to the Corporate Strategy
– Set up “Virtual Hubs” where similar groups can share “best practice activities” where the group members are following similar activities. A typical hub consisting of = Public services, Education Waste management – all of these being typically the domain of Councils
– One Representative from the “Hub” would attend the management committee as apposed to one from each Group as at present.
– Set up “Expert Panels” within each Group
– Group committees will no longer keep minutes – only activity plans – IOSH Administrators will provide more support
– There will be a new performance management system – based on a 3 year rolling plan – KPI’s will be formulated – there will be a formal review each 3 years
– Funding changes will enable Groups to keep 75% of all profit from any activities such as the Symposium
– No more “Specialist Group” Newsletters – all details will be contained in “Connect” which is circulated twice per month to all members
– Groups will elect members to act as representatives – Branches will no longer have automatic appointment of representatives
5 Guest Speaker:
Aisha Anwar, an Associate of Maclay, Murray & Spens, presented: -
Corporate Manslaughter and Corporate Homicide Act
Executive member, Graeme MacGregor, introduced the speaker for the afternoon paper as Aisha Anwar an Associate of Maclay, Murray & Spens who was a last minute stand-in for the planned speaker of David Leckie - Partner, Maclay, Murray & Spens – who had been unavoidably required to be elsewhere. Graeme then indicated that Aisha specialized in Commercial Dispute Resolution and has extensive experience in dealing with a broad range of disputes ranging from contractual disputes and professional negligence claims to actions of deformation, whether on behalf of blue chip companies or private individuals. She is well versed in fraud and financial service matters aviation law and regulatory concerns and has been involved in a large number of judicial reviews and also specializes in health and safety matters and was recently appointed on behalf of the Law Society to advise on the proposals to introduce corporate killing” law in Scotland.
Background to the Corporate Manslaughter Act
- In 1988 the Piper Alpha disaster was the worst oilrig accident, which killed 170 people. Lord Cullen headed the investigation, which included some 63 expert witnesses, but in summary there was considered to be a superficial attitude to Health & safety throughout the organization.
Following this incident how many people were prosecuted = Nil.
- In the 1987 the Herald of Free Enterprise sank and there was an attempt to prosecute P&O, but it didn’t make it past first base as there was a need to try and define a “controlling mind”
Following this incident how many people were prosecuted = One – the door operator
To date only 7 people have been held to account in terms of Corporate Manslaughter and all of them in England. 2 have been Directors resulting from the Lyme Bay canoeing episode = 1 for allowing the group to go out, the other for being responsible for a weather check.
- In 1999 we saw the incident in Larkhall where a family of 4 died following a gas leak from a ductile iron pipe such that the house exploded when the father went down to light the boiler. This led to Transco being prosecuted and were found guilty under the HASAW Act and were fined £15m. There was a program in place to replace ductile iron pipes with plastic ones and the records for the house in question falsely indicated the pipes had been done already. Consideration of prosecution for manslaughter had to be dropped because of the size of the organization where it was effectively run by committee control following the principle of aggregation.
HMA –v- Transco
- If Parliament considers that a corporate body, in circumstances such as the present, should be subjected, not only to potentially unlimited financial penalties, but also to the opprobrium attaching to a conviction for culpable homicide, then it must legislate
The Corporate Manslaughter Act
The Justice Minister stated
- “The Corporate Manslaughter Bill is ground breaking piece of legislation. This is about ensuring justice for victims of corporate failures. For too long it has been virtually impossible to prosecute large companies for management failures leading to deaths.
- Today’s Act changes this, for the first time companies and organisations can be found guilty of corporate manslaughter on the basis of gross corporate failures in health and safety. The Corporate Manslaughter and Corporate Homicide Act will make it easier to prosecute companies who fail to protect people.
- We are sending out a very powerful deterrent message to those organisations which do not take their health and safety responsibilities seriously”.
However it will be necessary in bringing the first prosecution under this Act to select the case very carefully to ensure there is a virtual certainty of success.
It is for this reason that the case 4 years ago of the ICL factory explosion in Glasgow is not going to be chosen as the first case. The cost of replacing the pipe work, which was faulty in this incident, would have cost approximately £405 to replace, but the Risk Assessment, which had been completed, had been undertaken by a student working at the site and hence was not competent to undertake the duty.
Fines
The speaker then indicated that there had been a huge increase in the size of fines being issued of late, where the size was larger for the bigger organizations involved, hence seeing the £15m fine for Transco etc.
It was felt however that the fines have been largely viewed in much the same way as speeding fines – normal and a nuisance rather than being actually punitive.
Independent Scotland – or not
A Scottish Expert Group was asked to consider the content of the proposed bill and their proposals included the following comments –
• Uniformity was unimportant, it is often best for us to go our own way and often to lead the way for others to follow
• Individual liability needs to be considered
• Innovative penalties need to be introduced and this is still under consideration
• ‘Reckless behaviour’ was in need of a full definition
• Critical of English Bill and felt it did not go far enough
However it was conceded that H&S is not a devolved topic and London said the bill was to cover all within the UK and hence we saw the addition of Corporate Homicide added to the tile to cover the Scottish legal system
The New Offence
Firstly it must be remembered that this Act applies to every organization – Companies, Emergency Services, Charities, etc etc but it only comes into force once there has been a fatality, such that the best form of protection of not getting prosecuted under this Act is not to have any fatal incidents.
The offence is one of -
• Gross breach of a relevant duty of care – this includes within the definition of including control of premises and suppliers of services
• “Gross Breach” is defined as -
• a) Conduct falling far below what can reasonably be expected
• b) Failure to comply with H and S legislation. If so:
• How serious was failure
• How much of a risk of death
• Compliance with defined guidance
• Conduct of senior management “substantial element” in the breach – where senior management is anyone who has a significant role in
• a) Making of decisions about how the whole or substantial part of activities are managed or organised, or
• b) Actual managing or organising of whole or substantial part of activities
Being held to account under this Act will not be a happy position / situation to be in, particularly with H&S Inspectors will be investigating incidents alongside the Police, who are often involved in much more detailed interrogations.
Directions to Jury
Should an event take you in front of a Judge & Jury, prior to going out to consider the verdict the Judge may direct the Jury as follows:-
• You should consider attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure or to have produced tolerance of it
In other words they will be considering in depth the Safety Culture of the Company and this may (if felt necessary) include Board Meeting minutes to verify how important H&S is actually considered and may also consider how the Board Members react on site visits – do they always wear PPE and follow safety rules and procedures or do they take short cuts?
Penalties
Unlimited Fines – Proposals
• Sentencing Advisory Panel (of England) – based on 2.5% -10% average annual turnover over the past 3 years (NB: The figure is based on TURNOVER not profit) – Scotland is likely to follow suit.
• HWSA – 1% - 7.5%
If the fines were to increase @ 2.5% recent fine would have increased as follows:-
• Wimpey fine of £300k would have been £66.79M
• Port of Tilbury fine of £100k would have been £1.8M
• Corus fine of £100k would have been £242.5M
• Royal Mail fine of £150k would have been £226.4M
Other Sanctions
• Remedial Orders where the Courts tell the Company what to do – although it is likely that the remedial work has already been undertaken by the time it reaches court
• Publicity Orders – If the Company had spent £1m in advertising just think how one advert like this could wipe out any potential benefit by detailing
– Fact of conviction
– Particulars of the offence
– Amount of fine
– Terms of remedial orders
• With repercussions of –
– PR reputation damage
– Audit and tender disclosures
– Impact on insurance
– Fatal Accident Inquiries
– Damages Claims
– Employee morale
Individual Actions
• The CMCH Act does not stipulate any individual liability
• “Senior Managers” are however named, but this is no increase from activities under the original Section 37 of HSWA which considered consent, connivance & neglect
• Section 7 HSWA is still in place to cover the action of anyone to take care of themselves and others who may be affected by acts or omissions
• Directors can still be subject to disqualification
• Individual Manslaughter has not been abolished and 6 directors have been prosecuted –
• Paul White 12 months
• Michael Shaw 15 months
• Glen Hawkins 9 months
• Lee Harper 16 months – this was for disposing of asbestos in black plastic bags in an Asda car park & outside a primary school
• Paul Ellis 12 months
• Peter Pell 12 months
• Original Penalties were –
Under which law
Summary Complaint
Indictment
Regulations
Fine up to £5000
Unlimited fine
HSWA
Fine up to £20,000
Unlimited fine
Notices
Fine up to £20,000 or/and up to 6months imprisonment
Unlimited fine or/and imprisonment up to 2 years
• New penalties as defined under Health & Safety (Offences) Act 2008 (for offences after 16 January 2009)
• For a breach of the HSWA/Regulations/Notices: (no variation)
• On summary conviction, - up to £20,000 fine and/or 12 months imprisonment
• On Indictment, - unlimited fine and/or 2 years imprisonment
Scottish Expert Group – Innovative Penalties
The Scottish Expert Group were charge with finding innovative penalties to try and overcome the belief that the law was lacking teeth and they offered –
• Fines based on turnover
• Equity fines which reduce the value of shares
• Disqualification from activities
• Corporate probation
• Community service orders
• Appointment of an independent H&S Officer
• Notifying Registrar of Companies of conviction
Practical Considerations
The best form of “Self defence” with respect to the CMCH Act is a simple one of – don’t kill anyone at work, but if it happens the considerations will include
• Organigram – do “senior managers” job descriptions include H&S elements
• Safety Spend – does the Company log what is actually spent on H&S to show the courts
• Safety Culture – The Jury here may be looking at the management message
• Control of information – email/texts may be seized by the Police such that emails of other details sent out to prevent speculation may end up being incriminating
• Control of Contractors – HSE will be interested in the contractual chain such that the Principle contractor and the Main contractor may be held accountable for the lack of competence of the lower contractors
• Audit SMS & risk assessments – how often are these prepared, how often are they checked, do you get a sign-off from employees to acknowledge details contained in the risk assessment
• Red alert for HSE focus areas – driving at work is likely to be included in this category
• HSE Guidance
• Which legal entity? Joint Ventures – Who does what?
• Who is the “duty holder”
• Communication of policies etc
• Confidential reporting – is there a system for anonymous reporting of shortfalls
• Accident reporting – near misses to be considered a chance to learn from errors
• Consider appeals of Notices – you have 21 days to appeal
• Industry standards – don’t forget to look outside of your normal limits to learn from the activities of others
• Indemnification of directors
• Following an incident consider -
• Accident reports – Take care and prepare them accurately they may need to be revisited some considerably later
• Expert evidence – consider getting the expert witness on your side early
• Legal privilege – consider document privacy but remember section 20 which requires co-operation
• Conflict of interest
• The Family – take care of them, otherwise they will look for compensation & detailed investigations – there is nothing to stop you offering condolences but don’t admit fault
• Police interviews can set – company v individuals
• Caution - Why attend/answer? – You have the right to remain silence – and in Scotland No Inference Can Be Taken from Silence
Closure
Aisha then suggested that all Directors took a look at the document produced as a joint venture by the Institute of Directors & the Health & Safety Commission entitled “Leading Health & Safety at Work” which is based around four stages –
Plan Deliver Monitor Review
http://www.hse.gov.uk/pubns/indg417.pdf
Which in summary states -
• Demonstrate Board commitment
• Ensure Board level reviews
• Receive competent Health & Safety advice
• Review nature of information received
• Workforce consultation
• Targets set per sector performance
Any further explanation etc can be gained by contacting Aisha Anwar direct at
0141 303 2325 or
6 Closing details
Please stay and have a coffee and meet your colleagues.
Dates of next meetings:
Edinburgh Branch:
26 November – Question Time debate – Scottish Parliament. Tickets only!
11 December – Widening horizons – from HSC to HSE: the real life of an HSE Board member, Danny Carrigan HSE Board member (formerly HSC Commissioner)
•
Forth & Tay District:
05 February – IOSH ‘Get the Best’ campaign and AGM, Keith Underhill, IOSH Trustee
Alistair McLeod CMIOSH
pp
Helen Pearson MIIRSM, CMIOSH
Branch Secretary
Richard Lovering, CFIOSH
Branch Executive