Environmental, Health and Safety Update as of September 2024.
Environmental updates
Spotlight on the cost of non-compliance and the changing face of enforcement
Following the recent publication of the latest Enforcement Undertakings accepted by the Environment Agency, Stephen Panton, the firm’s regulatory compliance and enforcement lead and member of the Mines & Minerals Team, shares his thoughts on;
- what these cases show and what many of the incidents involved have in common
- what practical steps organisations can take to minimise the risk of similar incidents occurring and enforcement action being taken and, if they do, to minimise the harm caused and resultant financial impact, and
- whether we will soon start to see the number and amount of Variable Monetary Penalties supersede Enforcement Undertakings
Between 1 November 2023 and 26 July 2024, a total of 40 Enforcement Undertakings (EUs) were accepted by the Environmental Agency as an alternative to prosecution, 22 involving breaches of the Environmental Permitting Regulations 2010/2016 with the remainder all relating to Packaging Waste Regulations 2007 offences.
The Enforcement Undertakings involved voluntary donations of around £3.5million being made to a variety of conservation and wildlife charitable and not for profit organisations.
In addition to these sums, there will also have been agreements reached to pay the Environment Agency’s investigative costs and the costs incurred in connection with considering and accepting the Enforcement Undertaking Offers made and, ultimately, Certificates of Completion being issued.
What types of incidents were involved?
Leaving aside several cases of non-permitted effluent discharges by well-known water companies (x3 Enforcement Undertakings by Severn Trent Water and Yorkshire Water – £1.1275million combined), the incidents were caused by the release of chemicals, trade effluent, slurry, fuel oil and surface water run-off all of which were unintended.
The majority were unintentional, ranging from defective or absent monitoring equipment and sensors, valve and pipe failures and blockages, a lack of adequate containment and human error. A good number could reasonably have been avoided.
What preventative measures could have been taken?
Regular monitoring of higher risk infrastructure, testing of critical sensors and valves to ensure that they remained effective and/or would activate as intended in the event of a failure, leak or other defect.
Other common causes are staff failing to appreciate and promptly react to warning signs and telemetry, disabling safety and fail-safe devices, and not knowing about or failing to implement their organisation’s emergency procedures.
Whilst regular or randomised testing of equipment & systems and assessing employee competence & adhering to process/procedure will not always prevent an unintended discharge or release happening, the risk of an adverse event will be minimised.
Importantly, where reasonable steps have been taken to ensure infrastructure is functioning properly and staff competency is monitored and action taken where there is a failure to follow procedures, evidence of such will be of significant importance if an incident occurs.
Being able to demonstrate through evidence what reasonable measures have been taken to minimise the risk of non-compliance and environmental harm caused should reduce an organisation’s culpability and/or category of environmental harm assigned to the incident. Particularly with more serious incidents and those involving large or very large organisations, the financial implications could be far lesser due to a lower level of culpability or harm.
If you are not convinced, the sentencing guideline for environmental offences provides a graphic illustration of the significant impact that an organisation’s culpability and extent of environmental harm following an incident will have in financial terms.
Civil Sanctions – The rise of the Variable Monetary Penalty
In December 2023, the £250,000 cap was removed and the number of offences to which variable monetary penalties applied was increased.
Unlimited Variable Monetary Penalties can now be issued in response to non-permitted discharges and releases, with the process for calculating the level of penalty imposed being closely aligned with the multi-stepped approach set out in the Definitive Sentencing Guidelines for Environmental Offences that sentencing courts must have regard to.
Unlike voluntary donations made as part of Enforcement Undertaking Offers which go to benefit wildlife and conservation charities, the revenue generated from Variable Monetary Penalties goes to HM Treasury.
For the above reasons, it is widely anticipated that we will probably soon start to see greater use of Variable Monetary Penalties as the Environment Agency’s chosen form of sanction and the penalty involved from a financial perspective being generally greater that voluntary donations that are typically made as part of an Enforcement Undertaking offer.
Health and Safety
There have been a few recent prosecutions involving workplace transport-related accidents, one of the sector’s key risk areas, and an interesting (Criminal) Court of Appeal decision regarding the nature and extent of Morrisons’ Supermarket’s general duty under Section 2 of the Health and Safety at Work etc Act 1974.
Why these accidents happened and what the consequences were are summarised below, along with an explanation of why the outcome in a retail sector case is relevant to many other sectors, including Mines & Minerals.
Sentencing Update
- On 20 August 2024, John Brooke (Timber Treatments) Limited, a wood recycling company, was fined £22,500 after he was struck by a front loading shovel whilst walking across the main site yard where. HSE’s investigation revealed that there were no control measures, such as physical barriers, to prevent pedestrians accessing areas where loading shovels, lorries and forklift trucks operated.
- Pink Skips (NW) Limited was fined over £100,000 on 22 July 2024 after a worker lost one of his legs after being struck by a reversing a 360-excavator. The cause of the incident was the failure to follow the site’s written safe system of work which required a banksman to oversee operations and prohibited operatives from being present within the excavator’s “swing reach area”.
R (HSE) v W M Morrisons Plc – Court of Appeal clarifies an employer’s general duty to care to vulnerable employees
Morrisons’ Supermarkets failed in its attempts to overturn its conviction, and fine of over £3 million.
In refusing permission to appeal, the Court of Appeal emphasised the need for employer’s to take account of the risks to which individual workers were exposed.
The case involved Matthew Gunn, who had suffered from epilepsy since birth and died after falling on stairs leading to his personal locker, which was located on the first floor. He was required to keep his personal property in his locker at all times during his shift.
A seizure was the probable cause of the fall. The stairs were found to be defect-free.
The risk of injury to Mattew Gunn during an epileptic seizure when using the stairs had been identified several months beforehand. A suggestion to relocate his locker to the ground floor had been made, however, this was not acted upon.
As part of its’ appeal, Morrisons argued that (1) it was not responsible for controlling everyday risks that epileptic people including Matthew Gunn faced all the time, particularly the use of stairs that were safe for ordinary user and (2) the risk (of using and/or falling on the stairs) was not directly connected with the company’s supermarket activities.
The Court of Appeal disagreed and held that;
- Section 2 of the Health and Safety at Work etc Act 1974 (HSWA 1974) imposed a duty on Morrisons’ as an employer to take reasonably practicable steps to ensure the safety of “all his employees” whilst at work;
- If one or more employees are put at risk by the way in which the employer operates their business, such as an employee with a history of epilepsy being required to use stairs, the duty under Section 2 HSWA 1974 arises;
- Having to access and store personal items in a designated locker was a work-related activity as it was part of how Morrison’s operated its business;
- Morrisons failed to take reasonably practicable steps to control the specific risks to the health and safety of Matthew Gunn when using the stairs. His personal locker could have been easily relocated to the ground floor but was not;
What are the key takeaways?
The Morrisons’ case confirms that employers are under a duty to ensure the safety of all individual employees, including vulnerable employees and those with disabilities, when they are working or carrying out an activity arising out of or in connection with their work. The duty also extends to a number of other scenarios such as those employees on a phased return to work following sick leave and employees with progressive illnesses or conditions, and therefore those with gradually deteriorating mobility or cognitive functioning.
The message is that where a particular employee is put at risk, employers must take reasonably practicable measures to ensure their safety even if the work activity in question does not pose a risk to the health and safety of all or most of their colleagues.
Control measures in place for a work activity will often be sufficient enough to protect all employees engaged with the activity from harm, including those with vulnerabilities and challenges. However, there may be occasions when this is not the case and input from occupational health or a health and safety manager is required to identify what, if any, reasonably practicable adjustments can be made.
Whilst there is no specific requirement under UK health & safety law for all employees to be the subject of individual risk assessments, the Morrisons’ decision clarifies that a person-centred approach may, on occasion, be needed.