Health and safety roundup - September 2019

We have taken a look at some of the key topics emerging in health and safety over recent months and interesting recent developments in the area. Here is a short summary of what we found:

Food Standards Agency 2019 Annual Report and the impact of Brexit

The Food Standards Agency (FSA) has published its annual report and accounts. As one of the government departments most affected by Brexit, it is perhaps not surprising to see that one of its key priorities up to 2020 is to ensure that our food is no less safe after Brexit than it was before.

The report, which can be found on the FSA website, outlines the difficulties that the regulator has faced and the work that has gone into ensuring the continued protection of consumers’ safety when we leave the European Union (EU). The FSA’s work has involved collaborating with numerous other government departments to prepare a regulatory regime ready for operation outside the EU systems that the country currently relies on and operates within. It has been described by the FSA’s chief executive as “the most complex and significant programme of work ever undertaken by the FSA”.

To assist with the additional workload, the FSA has recruited over 40 external scientists and made more than 100 new internal appointments. We must remember though that even in the midst of the Brexit uncertainty, the FSA day job continues and indeed it is another of its 2020 aims to “keep the regulatory machine running smoothly” whilst at the same time managing the change coming.

In recent years, we have seen a trend of increasing FSA investigations and enforcement activity: in 2015/2016 there were 58 FSA investigations, only 10 of which resulted in any enforcement action; in 2016/2017 there were 97 investigations with enforcement action in 23 cases; and in 2018/2019 there were 100 investigations with 28 of those being enforced.

Navigating Brexit, for the FSA and others, will be no small challenge. We look forward to monitoring how the FSA will seek to allocate its resources and the impact it will have, if any, on its ability to advise the industry and to continue to mount significant food safety investigations in England and Wales.

Related item: Enhanced allergen labelling requirements to be implemented by 2021

Consultation outlines UK Government’s intention on sprinklers in high-rise flats

The full public consultation published on 5 September 2019 outline’s the Government’s intention to “reduce the trigger height at which sprinkler systems would be required in new high-rise blocks of flats”. It also seeks views on “proposals to improve wayfinding signage within blocks of flats, and to install evacuation alert systems for use by Fire and Rescue Services”.

The consultation follows the Call for Evidence issued by the Government in December 2018 on the technical review of Approved Document B of the Building Regulations. Current requirements for sprinkler systems (under Approved Document B) are that new blocks of flats that are more than 30 metres above ground level should be fitted with such a system.

As set out in the consultation:

The call for evidence responses showed that a large majority considered that action should be taken to install sprinkler systems in a wider range of flats, and that the trigger height requirement is currently set too high.

The Government’s preferred option is a reduction in the trigger height for sprinkler systems in new high-rise blocks of flats, from 30 metres to 18 metres.

The consultation will close on 28 November 2019.

Magistrates’ Court fines on the increase? 

Health and safety prosecutions can be dealt with by either the Magistrates’ or the Crown Court, depending upon their severity, and are known as ‘triable either way’. All health and safety cases start in the Magistrates’ Court where there will be a hearing called a Plea Before Venue hearing to decide in which court subsequent hearings will be held

In respect of offences committed after 12 March 2015, s.85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) applies, with the effect of increasing the maximum level of fine available to Magistrates' Courts to an unlimited fine (previously £20,000 per offence for most health and safety offences).

The effect of this increased sentencing power is that more health and safety cases are now dealt with by the Magistrates’ Courts. Combined with the introduction of the Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences (the Guideline), there has been a significant increase in fines levied by Magistrates’ Courts for health and safety offences.

It may have taken some time for the Magistrates’ Courts to get used to the fact that they can potentially impose seven figure fines, but cases over time have demonstrated that some Magistrates’ Courts are no longer afraid of imposing fines of that level. Most recently, in July 2019, Delphi Diesel Systems Limited pleaded guilty to a breach of s.2 of the Health and Safety at Work etc. Act 1974 after two employees suffered burns when the vapour of a flammable chemical ignited and caused an explosion. The company was fined £1,000,000 in Cheltenham Magistrates’ Court.

In our experience most Magistrates’ Courts are comfortable about following the Guideline and imposing six figure fines, but it is still rare to see fines in excess of £1,000,000 which tend to be reserved for Crown Court cases.

There is no limit to fines that the Magistrates’ Courts can impose and so it might be that over time we see these fines creeping further up. Where a few years ago significant cases were mostly reserved to the Crown Court, that is no longer the case. Cases can move much more quickly from charge to trial or sentence in the Magistrates’ Court. It is therefore important that businesses and individuals seek legal advice as early as possible, to allow time for witness and expert evidence to be gathered and proper advice to be given and considered.

Read other items in Health, Safety and Environment Brief - September 2019