IOSH EDINBURGH BRANCH
Minutes of 203 Edinburgh Branch Meeting
Peffermill Playing Fields, University of Edinburgh 10 September at 2 pm
Sederunt:
H Pearson S Boucher J Lamb C Sparling C Lawson J Brownlee B Gippent
I Murray V Slatery A Beal D Herbent L Murray R Lovering D Ward
J Fenton R Bradford J Hutchinson A Diment L Young D Leckie S MacDougall
P Keogh G Bedwell A Dick C Shiels M Watson B Morris J McAinsh
G Clark C Forest R McLean M Grimmer N Goveia B Howden B Johnston
M Bancroft K Lloyd I Sinclair R Brydon P Paterson M Sturgeon A Rintoul
S Paterson S Page J Sharp K Dean R Innes S Wilson A Milne
N Elliot M Richards P Brown R Sinclair K O’Donnell J Ritchie E Mitchelson
J Edmonds K Breen S McMorland C Fenton P Selwood S Girdwood J Hepburn
R Brown G MacGregor L James D Collins R Butler
There were also individuals from HWV and TVE. I’m afraid I couldn’t read their names on the serundent sheets.
Apologies:
A McLeod, M Dunne, J Brannigan, A McGowan, J Montgomery, A McNeill, B Robertson, A Murray, N Bell, F Higgins, S McDonald, H McCrea, R Thomson, G Lyall
Liz Young took the Chair and outlined the safety arrangements (Fire) and reminded the audience to switch off their mobiles. Liz welcomed everyone to our new venue and hoped they had found it easily and had no problems in parking. Liz highlighted that the Exec Committee had listened to members and hoped that the new venue would reflect their previous concerns re parking and accessibility.
Anyone not in receipt please email Secretary; pearson@mabbett.com
Proposed by – M Bancroft Seconded by – C Pender
None
9.00 - 10.15 on 29 September. Driving safely - reducing occupational road risk This FREE web event will focus on best practice initiatives on driving safely from BT and British Gas. For details go to http://www.iosh.co.uk/index.cfm?go=groups.news_item&id=2787&sgid=12 There is CPD to be had!
We were informed by Sheila MacDougal that the group has reformed. It is currently working on a training passport across the whole of Scotland. There will be a conference the first week of November for healthcare specialists dealing with violence and aggression. See http://www.iosh.co.uk/index.cfm?go=events.details&id=4347 for further details.
18 November 2009, Westminster. Participants at this all-day Westminster Briefing will spend the morning discussing latest government plans and legislation affecting health and safety and how best to promote health and safety leadership in the workplace. The afternoon will present the opportunity to investigate specific case studies whereby strong leadership has led to successful outcomes. For further information or to book a place please go to: http://www.westminster-briefing.com/?p=6253
Recent corporate manslaughter and killing legislation as well as growing political pressure towards personal liability has moved health and safety issues and risk up the agenda for business. Rory Jackson, Partner at McClure Naismith will look at the nuts and bolts of health and safety in Scotland including sanctions, penalties and personal liability. Lunch will be available from 12.30 pm and the seminar will start promptly at 1.00 pm and finish at 1.45 pm followed by an opportunity for questions and networking. To register your attendance at either event, please go to http://www.mcclurenaismith.com/seminars/signup_general.aspx.
22nd September at 14.00 - approx 16.00. BOHS Scotland Region: Tour of this large plant which treats sewage from Edinburgh and the Lothians before discharge into the Firth of Forth and discussion with the staff re; commercial offshoots from sewage, safety aspects such as confined space working, lone working, etc. and the health hazards associated with working with raw sewage such as hazardous aerosols, coliform bacteria, leptospirosis, etc. There is no fee for this visit, please book your place by email to: scotland@bohs.org
Hi Viz jackets will be supplied, sensible shoes are requested, if delegates have safety shoes these should be worn. This is NOT a hard hat plant.
7th Oct Chancellors Building, Little France,13.00 - 16.45. Cost £30 for members and £50 for non-members, includes lunch and tea/coffee mid-afternoon. Bookings and further information can be found at the BOHS website's Events section at: http://www.bohs.org/eventDetails.aspx?event=185
Members need to make sure IOSH have their up-to-date email addresses. To do this, log into MyIOSH, at www.iosh.co.uk, then go to My details and update your main email address. If you use the forums, your email addresses need to match. A quick-step guide to updating your email addresses can be found on the main IOSH website.
The 2008 challenge was very poorly attended but with no feedback from the members we need to know if the event or timing that was unsuitable. Therefore this year we would like to obtain a consensus of opinion prior to making a booking and risk loosing deposits.
For the 2009 Roger Midson Challenge the choice is either: -
Off Road Dirt Karting near Cumbernauld. Cost will be nominally £52 per head for about three/ fours of mud, mayhem and fun. A deposit will be required.
OR
Skittles – basically do-it-yourself ten-pin bowling – at the Sheep Heid Inn, Duddingston. Cost will be approximately £5 per head. A bit cleaner and less tiring than the dirt buggies and you can eat at the Pub as well.
The Date – either a Friday afternoon (as previous events) or Saturday Afternoon in November – the actual date cannot be confirmed until a booking is made.
However as a deposit will be required we need an indication from members of the preferred event and day so that we can make suitable arrangements.
Please email ali_mcleod@btinternet.com to indicate your preferences, which will be announced later in October.
Wanted – Press Officer to join Exec Committee. Please see an Exec Member for further details.
None
DDA update - Ann Diment, CMIOSH, MISTR
Health and Safety Manager, School of Biomedical Sciences, Edinburgh University.
Ann gave us a very comprehensive update on the DDA and the definition of what constitutes as a “disability”.
Corporate Manslaughter update and other important developments in health and safety law and practice - David Leckie "Partner, Maclay Murray & Spens LLP
David Leckie, Senior Partner in Maclay Murray Spens was introduced by Max Bancroft, Branch Webkeeper, as being somewhat rare – a lawyer skilled in Health and Safety qualified to practice in the two Jurisdiction of England & Wales and Scotland being a solicitor/barrister in one and a solicitor/advocate in the other.
David responded that he had been called various things before but ‘rare’ was new. He had had experience as a prosecutor on behalf of the HSE but nowadays acted for the defence. Before going to deliver what would be a snapshot of H&S law as it stood, he said he was always glad to address the Edinburgh IOSH Branch. H&S practitioners were in a privileged position. Unlike lawyers in court who dealt with the aftermath of an accident, H&S practitioners could prevent accidents from happening in the first place.
The law was identical in both jurisdictions and indeed had not changed much over the years. However developments had made it more difficult to mount a defence.
A snapshot
• Corporate Homicide is here – investigations were underway in Scotland concerning possible prosecutions and the first one in England was scheduled for early 2010.
• Prison for senior management – and possibly those further down
• Chargot – makes it easy for Crown to prosecute
• H and S dedicated Procurators Fiscal in Scotland
• Huge fines
Wind of Change
• De Menezes – who could have imagined in 1974 that the Metropolitan Police would be prosecuted and found guilty of a H&S Offence following the shooting dead of De Menez.
• Thomas Cook – Corfu deaths. While the Greek authorities were prosecuting everyone directly involved on the island – both companies and individuals, the police in North England were investigating the company for management failures in the UK.
• Prosecution of individuals – the Hatfield crash resulted in 12 individuals being prosecuted. Although found not guilty, they had to live with the possibility of being found guilty for three/four years while the case was processed.
• Contractual chain. The client has become more vulnerable and has to demonstrate that he is in control of his contractors and monitoring them adequately – preferably in writing. If things go wrong he has to answer: ‘what were you doing to check that they were doing what they said they would do” and demonstrate accordingly.
• Health and Safety (Offences) Act 2008 – this came into effect in January 2009. No cases had come up under this but it allowed for up to 2 years imprisonment for officers, directors and managers.
Watch this space
• Criminal Sentencing (Equity Fines) Bill – this Scottish Bill, if approved, would result in fines not being in money but in equity – shareholders would be affected directly and in theory it would encourage them to press directors to take greater account of H&S.
• Sentencing Advisory Panel Guidelines – the proposal was for a fine to be in the 2-10% range of turnover averaged over 3 years. This was not yet finalised.
• FAI consultation paper – (Inquests in England and Wales). The proposals for reform of the Scottish Fatal Accident Inquiry system were good.
• Judicial Review….there was an increasing trend for campaigning bodies (e.g. CCA, FACK) unhappy with a decision by the CPS/COPFS not to prosecute to seek judicial review and seek to have this decision overturned.
A COPFS specialist Division for all HSE cases had been formed in Scotland
“we are pooling expertise and experience, and ensuring that lawyers who work on HSE cases will be solely dedicated to this specialist area of investigation and prosecution” The Lord Advocate Elish Angiolini QC
This was to the good – it would result in a much more rigorous approach and also a faster decision as to whether to prosecute or not. There was also less chance of charges failing due to technicalities. It would also ensure that a decision would be made quickly after a death whether there would be a charge under corporate homicide or the HASAWA only.
David commented that people shouldn’t panic – the law hadn’t changed – what had changed was the consequences so people should review what they already had in place.
Cotswold Geotechnical Holdings Ltd
This small company was the first to be prosecuted under the new Corporate Manslaughter/Homicide Act. This was slightly surprising given that the “old” individual manslaughter charge was also available. The charges (with the different legal tests) were:
• Corporate Manslaughter &Corporate Homicide Act – against the company – the test was “a gross breach”
• Health and Safety at Work Act s 2 – against the company – the test was “as far as reasonably practicable”
• Individual Manslaughter – against the director (with possible life imprisonment) – test was “gross negligence”
• Health and Safety at Work Act s 37 – against the director – the test was “neglect”
The New Offence
David looked in some detail at the new offence under Corporate Homicide.
• gross breach of a relevant duty of care AND
• Conduct of senior management “substantial element” in the breach
Senior Manager
• “Significant role” in:
• Making of decisions about how the whole or a substantial part of activities are managed or organised, or
• Actual managing or organising of whole or substantial part of activities
“Gross Breach”
• Conduct falling far below what can reasonably be expected
• Failure to comply with H and S legislation. If so:
• How serious was failure
• How much of a risk of death
• Guidance
• 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
David concluded by stressing the importance of having a good Safety Culture in the organisation. The phrase “An accident waiting to happen” was a warning signal to a company.
David’s complete presentation is available in pdf format from the Secretary.
David Leckie, Partner (: 020 7634 8743 8: David.Leckie@mms.co.uk www.mms.co.uk
Please stay and have a coffee and meet your colleagues.
Edinburgh Branch: 08 October - Infection control for all - Scott Forrest, Health Protection Officer, NHS Lothian
Forth & Tay District: 05 November - Control of contractors - Sandy Fowler
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Helen Pearson MIIRSM, CMIOSH Branch Secretary |
Max Bancroft, CMIOSH Webkeeper |
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