OSH professionals are critical to establishing the compliance culture and safety management rules that will keep both civil and criminal litigation risk in the UK at bay.
Keeping on top of litigation is a growing concern for organisations. How has the litigation landscape in the UK changed for OSH professionals, and where does mitigating risk sit in their priorities?
Ruth Wilkinson, IOSH head of health and safety, says health and safety management rests on good moral, legal and financial principles, protecting people and preventing harm, to which responding to litigation forms just one part.
Preventing financial costs, ‘understanding that a breach of health and safety statutes could result in a prosecution as well as a civil claim’ and safeguarding against reputational risks are important, she says. ‘But at the heart of it, it’s about people.’
Kevin Bridges, UK national head of health and safety at multinational law firm Pinsent Masons, says: ‘Any threat of future civil litigation and potential criminal prosecution, combined, is certainly an important driver for employers seeking to achieve compliance with health and safety law, and avoid litigation risk.’
In the UK, the costs of litigation can be significant; Kevin notes that, from February 2016, revised sentencing guidelines increased penalties for most offences, with fines of up to £10m for health and safety breaches, and up to £20m for corporate manslaughter (Sentencing Council, 2015). Litigation can be civil or criminal, but these fines are from criminal cases.
Perception varies as to whether criminal prosecution or civil litigation is the greater risk for corporates. Breaching a statutory duty can lead to prosecution under health and safety legislation, while breaching a civil duty of care may give rise to a damages claim. Each is judged to a different standard of proof.
Kevin explains: ‘To succeed in the UK, a civil claim for damages must be proved on the balance of probabilities: the claimant must prove that the employer owed them a duty of care; that the duty was breached; and that their injury and damages were reasonably foreseeable consequences of that breach.
'With prosecutions comparatively rare and often resolved in the magistrates’ courts, employers often plead guilty to secure lower fines and reduce costs'
‘While it has long been held that an employer must take reasonable care for the safety of his employees, that duty is not unlimited and will be discharged if the employer does what any reasonable and prudent employer would have done in the circumstances.’
For a criminal prosecution, the charge must be proven beyond reasonable doubt. Should an injury occur, employers are required to show they took all reasonably practical steps to avoid it but the accident still occurred regardless, demonstrating a statutory defence. Kevin notes: ‘The prosecution does not have to prove negligence for a conviction to ensue, provided that the employer’s failure is demonstrated beyond reasonable doubt.’
Criminal or civil?
Chris Jerman, thought leadership manager at IOSH, says that businesses arguably fear civil litigation more than criminal charges.
With prosecutions comparatively rare and often resolved in the magistrates’ courts, employers often plead guilty to secure lower fines, reduce costs and minimise media attention – even though, Chris says, they might have fought on successfully.
However, Kevin notes that being convicted can have severe consequences beyond a fine. Resulting regulatory investigations can affect ongoing business, prevent companies bidding for public contracts and generate damaging adverse publicity. ‘By contrast, a civil award of damages, while significant, and which may well attract some adverse publicity, is largely a matter between the parties and their insurers.’ He adds: ‘Although civil damages can be very high, the moral repugnance attached to a criminal conviction for failings – particularly where they relate to safety or health – remains a significant and increasing deterrent.’
Susan Dearden, head of legal at Finch Consulting, says: ‘Civil claims for compensation by employees are covered by [compulsory] employers’ liability insurance, so any rise in claims is felt by insurers rather than employers.’
Criminal litigation is the bigger concern for businesses, she argues. ‘While defence costs may be covered by insurance, the penalties – and, usually, prosecution costs – are not covered by any policy. Liability therefore has a direct and immediate impact on the bottom line as well as a reputational impact.’
Chris agrees reputational issues are important. ‘A fear of negative press drives a great deal of organisational fear,’ he says. Kevin says the public and political will to hold those at fault to account for such failings to a criminal standard shows no sign of abating.
However, Chris notes that while OSH professionals might want to defend criminal claims, the relatively low levels of fines for summary offences can mean ‘financially, it’s just not worth fighting’, and ‘while OSH professionals should be at the forefront of such cases, they rarely are’.
However, OSH professionals should use their abilities to ensure court proceedings are a much less realistic proposition, ensuring inspectors recognise the public interest is not served by prosecuting. As such, OSH professionals should engage with the GB Health and Safety Executive to persuade inspectors that intervention is not needed, according to the circumstances.
Should OSH professionals focus more on protecting people rather than managing the risk of litigation? Chris says: ‘The focus should be on prevention, but through risk-driven and evidence-led means.’
Ruth says: ‘The primary driver for OSH standards is not solely about preventing potential civil litigation claims.’
Case study: Paying for pain
Breige Murphy of Osborne Clarke explains how OSH professionals should manage musculoskeletal claims.
Musculoskeletal disorder (MSD) claims comprise two elements: general damages for pain, suffering and loss of amenity; and special damages for any financial losses incurred as a result of the injury.
In England and Wales, general damages are assessed by reference to the Judicial College Guidelines and reported cases, with different brackets according to age, duration of symptoms, whether surgery is indicated and the prognosis for the future.
Special damages include past and future loss of earnings, medication costs, private surgery costs, care costs and so on. The case of Fifield v Denton Hall et al (2005) shows these damages can be significant. There, the court awarded the claimant, a typist, £11,500 for general damages and £84,500 for special damages as she was unable to work as a secretary again and required ongoing medical care. The damages relate to the High Court judgment, rather than the Court of Appeal hearing, where the High Court’s findings were upheld.
Lack of physical proximity is no excuse not to monitor an employee’s health while they are working from home. A recent survey revealed that 81% of employees working remotely had experienced back, neck or shoulder pain (Versus Arthritis, 2020).
With a surge in MSD claims foreseen, the ability to defend these claims will depend on documentary evidence of policies, risk assessments and training together with witness evidence corroborating implementation. Consider adopting the following practices:
- Written work assessments are key. Empower employees to conduct risk assessments of their home/office working environment. Online solutions are available. Review and implement the findings of the risk assessments.
- Monitor and review work levels and performance. Adopting flexible working hours against performance targets can reap benefits in terms of employee retention and loyalty.
- Invest in employee training on time management, mindfulness and problem-solving.
- If a work-related injury is reported, ensure prompt referral to occupational health or rehabilitation services. Symptoms treated early and successfully will limit the potential exposure to claims.
Building a compliance culture
Local authorities will want to prevent legal consequences and focus on compliance, with the first driver of OSH work being proportionate risk management ‘to ensure the health, safety and welfare of employees and others who could be impacted’, Ruth says.
‘Competency for managers is also essential, as they will be responsible for day-to-day health and safety management,’ she notes.
However, Chris points out that ‘the way this is done is still largely very poor, and unfortunately fails to satisfy the requirements for good, solid joined-up defence for both criminal and civil actions’.
‘The format and quality of a great many risk assessments can be dreadful,’ he says, adding that health and safety management systems can be ‘a collection of disparate unconnected documents that leave too many gaps between them’ for a defence to succeed.
Breige Murphy, legal director at Osborne Clarke, agrees. She says there are two main reasons companies are unable to mount a successful defence to claims: a lack of documentary evidence of policies, procedures and training; and a lack of witness evidence corroborating implementation in the workplace.
'Reforms to the no-win, no-fee system have shifted the burden of paying success fees from defendants to claimants'
Ruth says management should identify and manage OSH risks, performance of which ‘should be embedded within core business, with visible leadership and commitment, worker participation, and “plan-do-check-act” arrangements in place’.
Organisational compliance, she argues, should aim to go beyond achieving the minimum legal standard when controlling risks, as IOSH itself advocates, in striving to improve safety. ‘If the sole focus is about compliance, then organisations are limiting themselves in relation to business benefits and opportunities, and benefits to individuals and communities’, Ruth adds, noting that IOSH’s Healthy Profit policy statement does just that as part of sustainable business practices.
Likewise, Chris endorses IOSH’s Catch the Wave campaign as being informed by health and safety best practice as an intrinsic part of such issues, in favouring the prevention of accidents, rather than prescribing what to do when and if things go awry, such as litigation.
Aside from the inevitable delays to court proceedings caused by the pandemic, Susan says changes to the fixed costs regime and pre-action protocol have ‘helped reduce costs in many cases and sped up resolution of claims’.
Reforms to the no-win, no-fee system have shifted the burden of paying success fees from defendants, who previously paid these should they lose a case, to claimants. However, Kevin notes that a shift in one-way costs, whereby defendants are liable for their own and claimants’ costs but not vice versa, ‘very much helps claimants, and encourages the bringing of claims’.
Another significant change in policy affects the relationship of civil claims to criminal ones, explains Kevin. Usually, civil cases await the outcome of criminal prosecutions. He explains: ‘Until October 2013, a criminal conviction for a health and safety failing could be determinative of a civil liability.’
Section 69 of the Enterprise and Regulatory Reform Act 2013 amended the law so there was no automatic civil liability following a breach of the health and safety regulations. Although employers could be prosecuted for criminal law breaches, any prosecution would not be determinative of an employee’s civil claim.
However, barrister Gordon Exall, of Kings Chambers, Manchester, says that lawyers are still awaiting the real impacts of the change. ‘Eight years later there is no definitive appellate judgment,’ he says, noting the government had made it clear the statutory framework would remain relevant as evidence of the standards expected of employers in future civil claims for negligence, including relevant risk assessments. ‘The duty to risk-assess and take steps based on that assessment will play a large part in determining the duties owed and whether an employer has been negligent,’ Gordon adds.
Despite the need to prove that negligence caused the injury for which damages are sought, Kevin concedes: ‘There is little doubt that a conviction to the criminal standard for a related offence will go some way towards this.’
He warns: ‘Clear evidence that an employer did not conduct appropriate risk assessments or ignored warning signs, which form part of a criminal conviction, will assist in demonstrating the required negligence in a civil claim.’
In both instances, putting people first will be vital. ‘The strength of the defence relies on proving organisational competence,’ says Chris.
By confronting the risks of enforcement action, alongside prosecution or civil litigation, proactive litigation risk management provides clear benefits to businesses, individuals and society through safer and healthier working environments.
Managing litigation risk is not just a good thing to do – it is, fundamentally, the right thing to do, whether you are an employer or employee. After all, justice must not just be done, it must be seen to be done. And that means investing in positive change.
Image credit | iStock
Versus Arthritis. (2020) “Working from home left me with musculoskeletal pain” (accessed 16 September 2021).
Sentencing Council. (2015) Health and safety offences, corporate manslaughter and food safety and hygiene offences: definitive guideline (accessed 16 September 2021).