The next step

To the legislation

[Weblink]

Which type of law is likely to impact you?

How the law works

Essentially there are two types of legal proceedings that can take place as the result of an incident; a criminal case and a civil action. As a duty holder you need to understand the differences, the purposes and the consequences of each type to help you be compliant.

Criminal law

The purpose of criminal law is to protect society as it dictates what you must do. It serves to punish offenders, by means of imprisonment, fines and/or remedial orders, and so deter others. Criminal law is set by Parliament and you can download copies of the Health and Safety at Work etc. Act 1974 and associated regulations from the HSE (see The next step ). The enforcing authority brings a prosecution normally within six months of the offence and will focus on the accused, who has to prove their innocence. Any costs connected to the case are not insurable. According to the HSE 199 cases were prosecuted in 2020/21 with a conviction rate of 93%. £26.9 million in fines were issued with the average being £145,000.

Civil law

Civil law is where victims of harm caused by the negligence of another can seek financial compensation. The claimant must generally bring proceedings within three years of the incident occurring (though there are exceptions to this). The amount of compensation awarded depends on the nature of the injury, the impact on the person’s future ability to earn a living, and whether they have contributed to the incident. A person needs to have suffered an injury to bring a claim, so this law is reactive. If a civil action is brought against you, you’ll need to refer it to your insurance company who will ask you to defend it by producing evidence that you have not been negligent. Your employers’ liability or public liability insurance will normally pay the claim (subject to conditions), but you may find that your premium will increase the following year. According to the Compensation Recovery Unit, in 2018/19 89,461 claims were registered (the most up to date figures).

Most common action

Whilst some cases may fall under both the criminal and civil law depending on the nature and severity of the incident, statistics show that you are more likely to fall foul of a civil action. Any employee has the right to claim if an injury has occurred in the workplace and many need little encouragement to do so given the prevalence of no-win, no-fee law firms. However, the HSE and other enforcement agencies rely on the reporting of incidents before they become involved. And don’t forget that the standard of proof is much higher in a criminal case - the prosecution has to establish guilt beyond a reasonable doubt. In a civil claim it’s only on the balance of probabilities. Tip. In most cases something as trivial as a slip, trip or fall will not come to the attention of the HSE but has the potential to result in a civil claim.

How to defend

The best way to defend against either action is to be prepared with documentation that evidences how you manage health and safety effectively, e.g. risk assessments, training documents, safe systems of work. CCTV can be used but be careful not to breach data protection rules.

For links to the legislation, visit https://www.tips_and-advice.co.uk, Download Zone, year 20, issue 17.