Why Grenfell Tower has brought a sharp focus on health and safety and led to calls for a rethink on deregulation of laws

Though often a subject that fails to excite, health and safety shot back into the headlines in the wake of the Grenfell Tower fire.

Following the tragedy in June, where at least 80 people died, more than 70 leading organisations and individuals from the UK’s health and safety professions wrote an open letter to Prime Minister Theresa May urging her to rethink the deregulation of legislation.

The signatories – who included the Institution of Occupational Safety and Health, the Royal Society for the Prevention of Accidents (RoSPA), and the British Safety Council – also called on the UK Government to review Part B of the Building Regulations 2010, which cover fire safety within and around buildings in England.

“Nothing could have brought the need to be constantly vigilant about health and safety more into sharp focus than the Grenfell Tower fire,” says Jan Burgess, partner and health and safety specialist at legal firm CMS.

“Whilst the inquiry continues into the cause we would not wish to speculate, but what is clear in that health and safety is an issue for all businesses, in all sectors – not just those traditionally seen as being high-risk, as increasingly we see serious incidents occurring simply in large buildings, commercial and residential, at large gatherings and in the retail and industry.

“Anyone involved in project, construction, building management, property supervision or leisure or event planning should ensure that they have robust health and safety procedures in place, processes for monitoring and auditing the effectiveness of those procedures – and of course, a system in place for crisis response, should the worst occur.”

The UK’s health and safety record

The UK has one of the best combined health and safety records in the world, with fatal injuries at their lowest in 20 years.

Yet at the same time, occupational health cases are on the rise, with stress and mental health cases leading the way.

So room for improvement remains. Research released in the run-up to this year’s Health and Safety Week found nearly two-thirds of UK businesses are failing to meet basic law in this area.

In the survey of 2,000 employees working for firms with five or more staff, 65 per cent said they had not received any information on their company’s health and safety policies.

A further 27 per cent who had received and read their company’s health and safety manual said the information didn’t explain the risks of the job properly.

They cited a lack of detail about the dangers they could face, and a failure to explain how to deal with risky situations.

As a result, the majority do not feel they are well-equipped to deal with a hazardous situation if one occurred. One-fifth said they had no idea how to report an issue, while 32 per cent would have a vague idea, but would have to ask for help or consult with the company’s procedure documents first.

Worryingly, of those in manual professions such as construction, 25 per cent said their employer’s health and safety information was insufficient.

In this category, 18 per cent said they didn’t know how to report an issue at work, while 25 per cent had only a “vague idea” of what to do if they encountered a hazardous situation.

But workers in high-risk roles also have themselves to blame: nearly half – 48 per cent – said they have not read their company’s operations manual.

Bruce Craig, partner and health and safety expert at Pinsent Masons, said this creates unnecessary peril for both individuals and organisations.

“Over the last 18 months or so there has been a very significant increase in the level of fines imposed against companies which have been convicted of health and safety offences,” he explains.

“There is evidence this is in part as a result of the new Sentencing Guidelines introduced in England and Wales in February 2016.

“While these guidelines are not binding on Scottish courts, our courts are obliged to ‘have regard’ to them and there undoubtedly has been a knock-on effect.

“At the same time, there has been a spike in the number of company directors and managers being prosecuted under Health and Safety Executive legislation.

“For example, in the year to March 2015, 15 individuals were prosecuted but the following year this rose sharply to 46, of which 34 were convicted and 12 received prison sentences.

“To put this in context, over the entire 43-year period since the introduction of the Health and Safety at Work Act, 189 people have been jailed for health and safety offences, so 12 prison sentences in 2016 is way beyond the average.”

Health and safety fines

In terms of fines, the figures make for similar reading. According to numbers collected by the Thomson Reuters business crime division which were released in July, the amount of fines paid by firms rose by 43 per cent in 2016-17. The total rose to £54m, compared to £37m in 2015-16, the year before the Sentencing Council guidelines were triggered in February 2016.

In addition, the average corporate fine has trebled to £280,974, compared to £90,604 in the previous year.

According to the IOSH/Osborne Clarke report issued exactly one year after the new Sentencing Guidelines were introduced, the total income from the highest 20 fines in 2016 (£38.58m) was higher than the total income from all of the 660 fines in the previous year.

This has been the result of lifting the £5,000 cap on Magistrates’ court fines, allowing them to impose penalties that reflect the life-changing impact of serious health and safety violations without having to send cases up to Crown Court for sentencing.

Experts say the new sentencing guidelines then reinforced this by resolving any remaining hesitancy to impose high sentences.

James McMillan, an associate in commercial dispute resolutions at Maclay Murray & Spens LLP, said fines are now based on the total turnover of the offending business, which in the case of those with global operations can quickly run up substantial penalties.

The ENRC High Court decision

Against that backdrop, he says a recent English High Court decision in London in the long-running criminal investigation into mining group ENRC could have serious ramifications in the field of health and safety.

In that ruling, a judge ordered that material generated during internal investigations by ENRC can be given to the UK’s Serious Fraud Office (SFO), which has been investigating the company since 2013 over its activities in Kazakhstan and Africa.

ENRC unsuccessfully argued that the materials were covered by legal professional privilege, which keeps confidential any communication between a client and lawyer if that advice has been given in anticipation of legal proceedings.

In February 2013, the SFO received a report into whistleblower allegations of fraud at an ENRC subsidiary in Kazakhstan, but it never received the company’s so-called “self-report” into corruption allegations in sub-Saharan Africa. ENRC – which has denied committing any criminal offence warranting the probe – is appealing the decision.

Although the ENRC case involves fraud, McMillan says the principle of handing over the self-report would likely come to bear in the field of health and safety if the High Court ruling is upheld.

This would mean, for example, that companies could be forced to hand over documents prepared by their legal team in the event that a firm chooses to launch an internal investigation into claims of health and safety violations.

Effectively, McMillan says, companies could be compelled to incriminate themselves, which could mean that they opt not to investigate matters that potentially put workers at risk.

“The SFO sought an order for ENRC to produce documents from the internal investigation,” he explains.

“ENRC resisted this on grounds of litigation privilege and or legal advice privilege. Legal privilege is of course a fundamental human right afforded to any person accused of committing a crime.

“The judge Justice Andrews held legal advice privilege did not attach to communications by a party’s lawyer with third parties in the course of gathering evidence.

“Factual findings with a solicitor investigating are not privileged. Legal advice privilege did not attach to a lawyer’s working papers unless they betrayed the tenor of legal advice given.”

McMillan says that in relation to legal privilege, Justice Andrews held that litigation privilege cannot protest documents produced to enable advice to be taken about litigation, or to avoid litigation.

The judge also ruled that litigation did not apply to ENRC’s self-report because they were not prepared with the sole or dominant purpose of conducting adversarial litigation that could be “reasonably” anticipated.

“The ruling will in effect have a devastating effect on internal health and safety investigations conducted by businesses,” McMillan concludes.

“Any documents could be potentially seized by the SFO and other regulators in relation to business activity world-wide.

“Businesses will no doubt be following the appeal process of this important decision closely.”

The appeal is due up later this autumn, but Craig at Pinsent Masons cautions that firms both small and large “should be carefully reviewing their own policies and procedures to minimise the risk of an unwanted incident” that could result in heavy financial penalties of the imprisonment of key personnel.

“Reputational damage can also be huge when a company is convicted of a criminal offence,” he adds.

A survey in July revealed a dramatic 41 per cent rise during the past five years in accidents and injuries at small UK businesses.

Britain’s most dangerous jobs

The findings from Simply Business – which covers 1,000 different professions and trades – also threw up some surprising results about Britain’s most dangerous jobs.

Hairdressers and beauticians are seven times more likely to have an accident at work than carpenters, according to the study, while bricklaying is three times less risky than being a fitness instructor.

Dog walkers, kennel owners and those who run pet parlours are three times more likely than lorry drivers to have an accident at work.

Across all trades and professions, workers in the north of the UK are at a much higher risk, with Liverpool, Glasgow and Manchester topping the list. This was followed up by Birmingham, Bradford and then Edinburgh in sixth place.

In addition, accidents are more likely to happen on a Monday morning as sluggish staff return from the weekend, with the chances of injury dropping as the work week progresses.

According to the Health and Safety Executive, around 621,000 people were injured at work during the year from 2015. The most common incidents were mishaps from handling, lifting or carrying; slipping or tripping; and being hit by a moving object.

In total, an estimated 4.5 million working days were lost because of self-reported workplace injuries, with an average of 7.2 days per case.

“Businesses should not view health and safety as a ‘discretionary spend’, but invest time and effort to ensure their policies, procedures, audits and training are up-to-date and keep abreast of changing legislation,” Craig says.

“Directors, managers and team leaders must lead by example and at every level workers must be empowered to assess risk and to ‘stop the job’ without fear of recrimination. Avoiding complacency and embracing a positive and open safety culture, which is driven from the boardroom down, will minimise risk of injury or worse, and reduce the chance of prosecution.”