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Be certain about safety

Health and safety has recently hit the recycling news – for all the wrong reasons. Just last month, waste management firm Biffa was handed a £280,000 fine after the death of a member of the public at its Newbury waste recycling centre. And back in February, in a prosecution brought by the Health & Safety Executive (HSE), Glasgow-registered recycling company Electrical Waste Recycling Group (EWRG), along with one of its directors, was punished for persistently exposing workers to toxic fumes at a waste processing site in West Yorkshire.

EWRG (known as Matrix Direct Recycle Ltd when some of the offences were committed) was fined £140,000 and ordered to pay £35,127 costs at Bradford Crown Court. The company director deemed responsible for health and safety at the plant, Craig Thompson, was personally fined £5,000. Both pleaded guilty to charges that carried strict liability.

The HSE press release issued at the time of the EWRG case highlighted the challenges that recycling companies face if they were to avoid similar incidents that could threaten, or even destroy, their businesses. It was accompanied by comprehensive background notes highlighting in detail the complex regulations that were breached. So how can other recycling businesses avoid such incidents?

Examining the court proceedings provides some useful pointers. For instance, the judge criticised EWRG – which runs Lampcare, easyWEEE, the Waste Electrical Recycling Compliance Scheme and other recycling schemes – for its failure to have any effective, ongoing risk assessment process in place at the Huddersfield site. This would have highlighted the serious issue of high mercury levels at the plant much earlier, and meant that steps could have been taken to investigate and rectify the problem. This is in fact a legal requirement under an employer’s obligation to keep workers and the public safe as far as “reasonably practicable”.

A recent HSE report suggested that the waste and recycling sector suffers a depressing nine times more fatal accidents than the national average

The HSE set out five basic steps of risk assessment for most organisations: the identification of hazards; establishing who might be harmed and how; evaluation of the risks and deciding on precautions; recording and implementing the findings; and reviewing regularly. An acceptable approach means ensuring there are competent staff down the line who understand the regulations, and have the knowledge and experience to spot a live problem or a technical breach.

Fortunately, most successful organisations have a strong health and safety culture, with all employees understanding why risk assessment and vigilance is important for the company, staff and others such as the local community. But this only happens through good management.

Responsibility cannot be wholly delegated to one individual or team, for example, meaning that senior managers and directors need to be able to interpret results which are obtained as part of any risk assessment or health and safety activity, and to understand their implications. After all, in an HSE prosecution it will be those same managers and directors who will be held accountable.

The judge in the EWRG case also stressed that companies cannot rely on the word of suppliers. That word needs also to be monitored. EWRG bought equipment it believed would safeguard its workforce from mercury vapour release but then failed to ensure that was the case, at which point the company became culpable. It is the responsibility of the company, the judge said, to ensure that a piece of equipment fulfils the task it was bought for.

Similarly, putting a service out to tender does not absolve a company of responsibility. In the Biffa case, the HSE said: “Tender is not a mechanism for transferring all the health and safety risks to a contractor. The client must ensure whoever carries out the work is able to do so in a way that controls health and safety risks.”

What if a problem does arise despite a company’s best efforts? The lesson is that it is essential to act immediately. In the EWRG case, the judge repeatedly criticised the company for its failure to act on warnings and information, even when risk assessments were conducted. Unusually, this meant the health and safety breaches took place over a sustained period of months – a major aggravating factor in the case. The message is that if a health and safety issue does arise, no company can afford to bury its head in the sand.

Millions of tonnes of recycling waste are processed every day without incident, and court cases like these are thankfully rare. But with demand for its services growing, the recycling industry cannot afford complacency. A recent HSE report suggested that the waste and recycling sector suffers a depressing nine times more fatal accidents than the national average. As its profile grows, the industry will need to demonstrably make health and safety a priority if it is to retain the confidence of the general public and other key groups, from workers to regulators.

AN INSPECTOR CALLS: KNOW YOUR RIGHTS

Recent changes in the law, including a House of Lords decision in the case of Regina v Chargot, have meant that it is getting ever easier to successfully prosecute employers and individuals for breaches of health and safety law. Not only that, but the penalties for breaking health and safety law have been dramatically increased by legislation, such as the Health and Safety Offences Act 2008. Many relatively minor offences which would have attracted a moderate fine can now be punished by significantly greater fines – and even imprisonment of individuals in the more serious cases.

What can an inspector do?
A health and safety inspector can visit any workplace without giving notice. But for a routine inspection they will usually phone ahead to ensure that relevant staff are available. Remember, ‘workplaces’ include work premises and the homes of employees who work from home.

Whatever the purpose of the visit, whether to investigate an incident or a routine inspection, inspectors have the authority to take any or all of these actions, some of which you may find surprising:

  • to require any person to answer questions if there is reasonable cause to believe they hold relevant information
  • to direct that premises should be left undisturbed for as long as is reasonably necessary
  • to take measurements and photographs or samples of anything in the premises
  • to take possession of anything for so long as is necessary to examine it, and to ensure they are available for legal proceedings
  • to dismantle anything which is likely to cause danger to health and safety
  • to take any book or document relevant to the investigation
  • to require employers to give them the facilities and assistance necessary for carrying out their powers
  • to issue an improvement or prohibition notice.

Don’t forget the police!
If there has been an incident resulting in a fatality at work, the police will also investigate and will be one of the first on the scene. The police will be looking for evidence of individual manslaughter and/or corporate manslaughter.

What not to do
Whatever you do, do not obstruct inspectors in their enquiries because doing so can result in prosecution leading to a fine or even imprisonment. Obstructing inspectors can be interpreted widely, from physically preventing an inspector from exercising their powers to refusing to provide information.

For example, some police officers, quite surprisingly, have accused employers of obstructing them in their enquiries simply by not waiting to interview their own employees until after the police have conducted their interviews of them. This is despite the statutory duty on an employer to investigate health and safety incidents.

It is also an offence to prevent, or even attempt to prevent, a person answering questions or appearing before an inspector. Again, this can be interpreted widely, and you can sometimes be accused of committing this offence if the inspector considers you are unnecessarily interrupting their questioning of a witness.

All of that said, do not be afraid to ask questions of the inspector to ensure that, when appropriate, they explain to you the legal basis of the powers they are exercising.

Quite separately, but just as importantly, do not ignore any formal notice served by an inspector. Health and safety inspectors can serve formal legal notices requiring you to take certain safety measures or cease a certain activity (improvement and prohibition notices). These notices have legal force. While they can be appealed through the employment tribunal system, failure to adhere to them can lead to prosecution resulting in imprisonment or a fine or even both.

Try to develop a good rapport with the inspector. The more reasonable you appear, the more likely the inspector is to be reasonable with you.

Paul Burnley is a partner and Poppy Williams is a solicitor in the litigation and regulatory groupof DLA Piper UK LLP

 

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