You Can’t Insure Against Prosecution!

(Plus do you Know The Difference Between Civil and Criminal Law?)

Many years ago a company contacted me wanting an inspection for insurance purposes. The company supplied fancy children's clothing to department stores.

So, I went and did the inspection. I gave them my recommendations. All of which they ignored: nothing was implemented.

A year later my phone rings. I glance at the display. It’s my children’s clothing client, back from the dead! “We want to (finally) do some of your recommendations!” they inform me.

Hmm. Suspicious.

I quickly discover they would like some working at height training as the insurance company are insisting on it. So now they want some help with their risk assessments. 

So I do the training for them. I create the health and safety policy and all the risk assessments. Fortunately, I have emails going backward and forwards about what I’ve done and what their responsibilities are.

On 2nd January I switch my phone on, expecting to ease into the new year. Three minutes later my phone buzzes to life. It’s the environmental health officer from Manchester, phoning to say that my clothing client has given her my details as apparently I am “responsible for health and safety at their site.” 

“I’m not responsible,” I respond calmly, seething under the surface. “I'm a consultant responsible for giving them competent advice.” So much for ‘easing into the new year!’ Situations like this are why I never delete emails. 

She asks what training I have delivered. She asks for copies of the training records, which I agree to send. “Why?” I ask before hanging up.

“They've had two falls from height in the space of six weeks,” she replies, “and we want to prosecute.” 

I call the company later that morning. “It’s OK,” they say, “we have insurance.” 

“That won’t help you,” I reply. “You can be prosecuted, leading to huge fines and damage to your reputation. You cannot insure against it. Plus the two injured workers can claim compensation against you, which will hike your insurance premiums.”

I fish for further details. The first accident involved a guy who received the working at height training. The second was a new employee who hadn't actually been trained. I could well imagine the conversation. “It's just working off stepladders!” he would probably have been told.

The first had less of the claim than the second, having had the training (and presumably hadn't followed it). So for that one they can use contributory negligence to reduce the claim. 

The second guy hadn't had the training, so therefore his compensation payout would probably be more. But as we discussed in ‘the cop-outs of insurance companies’, the company’s insurance premiums will go up now they’ve had two claims. Simply put, it’s cheaper for the Insurance company to pay out rather than defend the case in court. 

Civil and Criminal Law

If you have a vested interest in Health & Safety at your company, it is worth understanding the difference between civil and criminal law. Civil law is when the injured person claims compensation against the company. Generally, they want money because they have lost income. At a company like my clothing client, once somebody's been off for 2 or 3 days, all they'll get is statutory sick pay - even if it's the company's fault that they had the injury. 

The criminal courts on the other hand deal with all breaches of legislation. And again, as we’ve covered previously:

• Ignorance is no defence 
• The Crown Prosecution Service only has to prove you probably did it, and then YOU have to prove that you probably didn't

The big difference is that for civil law there's insurance against the injured person claiming compensation, and for criminal law there isn't. (Also, an injured person cannot use a prosecution in the criminal courts as evidence to prove negligence in the civil courts.)

The Health and Safety Executive and the Environmental Health Officers will generally prosecute for a breach of either Section 2.1 of the Health and Safety at Work etc Act 1974, which is employers' duties to employees; or Section 3.1, which is employers' duties to others. In other words, anybody not on payroll who might be affected by their work. 

Often, they will also prosecute under the breach of one of the regulations. For example, if somebody is using a piece of rotating machinery without a guard, they might prosecute the company under Regulation 11 under the Provision and use of Workplace Equipment Regulations 1998 for having unguarded machinery. 

If they have provided guards but the guards have been removed, they could also prosecute under Regulations 8 and 9 for not providing Information, Instruction and Training.

There's also an option for the HSE to prosecute the individual who removed the guard under Section 7 for not taking reasonable care of themselves and others, and not cooperating with their employer! 

Because these things are so broad they essentially cover everything. So it’s much better if the HSE isn’t on your case to begin with!! 

So please remember:

You can't get insurance for a prosecution by the Health and Safety Executive. Or in this case, the Environmental Health Officers who deal with what they call ‘lower-risk organisations’ like shops and offices. There isn’t a magic pill insurance product for the absence of good H&S training and systems.

Over the years I’ve heard plenty of people admit they haven't got all their systems in place, but “it doesn't matter because we have insurance.” 

“Okay,” I will reply, “but what does that insurance cover?” 

Insurance only covers you if there's an injury at work and somebody wants to sue you for compensation in the civil courts. That’s all. It doesn't cover anything concerning a prosecution by the HSE in the criminal courts.

What Are The Cost (And Reputation) Implications?

If the HSE takes you to court you have an obligation to defend it. In which case you’ll need solicitors and barristers.

I've recently been asked to run a workshop for a client’s senior leadership team. We're going to run a mock court case in both the criminal courts AND the civil courts, so I’ve been looking up how much these things might cost…

I’m reliably informed that a H&S court case will typically last for 6 weeks. A good solicitor will charge between £300-£700 per hour. Court costs may be £141/hour on average, plus you need a barrister to defend you in the courts. A "top silk" (and of course, you will want the very best) can charge up to £6,000 per day. Plus you might have to pay for the prosecution barrister as well!

All of this is before damage to your reputation, loss of business, plus damage to staff morale and productivity.

The point is not to get prosecuted in the first place! Get the right advice. Get the right people doing the correct things. Get the right training.

By the way, if you would like to save a little on your training costs, SafetyNow is now 10 years old. To celebrate, I’m offering 10% off all 2024 course bookings where the course enquiry was made before 30th June. 

(You don’t need to confirm before July, you just need to get in touch before then!) 

You can browse all our courses at www.safety-now.co.uk. Complete the relevant form and we’ll go from there.

Moira

P.S. My clothing client ended up being fined almost £40,000 for the situation above.

P.P.S. This meme made me smile:

P.P.P.S. Still reading? Check out my last article on Section 36: Can YOU Be Prosecuted For Hiring the Wrong Health & Safety Help.