Health & Safety Law

Whether you need standalone advice on which regulations or laws apply to your business, how to discharge and comply with your legal duties, what liability may arise and the steps to avoid it, or how to remedy and mitigate circumstances post-incident, we offer specialist, commercial and pragmatic advice and consultancy services on various areas of health and safety law and practice.

 Our services include:

• Legal advice notes, opinions and guidance — bespoke resources on specific health and safety issues as well as commercial and strategic considerations.
• Legal updates and legislation tracking services.
• Policy development advice, drafting and implementation.
• Board and senior management services — advice, assistance, strategic direction and support.
• In-house lawyer support — including legal helplines, ad-hoc advice and specific regulatory and health and safety guidance.
• Risk assessments — advice on legal position, drafting and reviewing generic or bespoke assessments.
• Systems, procedures and arrangements — advice on legal requirements and support to introduce generic or bespoke safe systems of work, method statements and other arrangements.
• Auditing and inspections — advice on your current arrangements, highlighting strengths and weaknesses in provision and ensuring that your health and safety systems are robust and legally compliant.
• Remediation support — post-incident and enforcement notice inspection and advisory reports with prioritised action plans.
• Safety culture and behavioural safety audits.
• Human factor studies and assessments.
• Contractor management services and construction design and management advice.
• General safety consultancy services.

Our experience includes:

• Overseas PPE manufacturers — advising on essential health and safety requirements and how to comply with product safety requirements in light of the COVID pandemic.
• Commercial landlords — advising on the legal obligations that arise in relation to trespassers and the steps needed to discharge health and safety obligations in relation to a historic, dilapidated premises and (separately) advising on providing disabled access and DDA implications under the Building Regulations.
• Housing providers — advising on the legal obligations that arise under fire safety legislation and the new Building Safety Act 2022 and (separately) advising on the validity of a building consent approval and whether a new scheme complies with the Building Regulations and Fire Safety law.
• Retailers — advising on the legal requirements that arise from the carriage, shipping and labelling of hazardous materials and how this impacts supply chains.
• Logistics and infrastructure operators — advising on the requirements relating to UKCA marking and the interplay between the conformity of construction products and health and safety obligations.
• Trade associations — advising on the legal status and implications of non-compliance arising from industry guidance and ACOPs.
• Agriculture and feed distribution PLC — advising on the legal obligations and duties surrounding occupational health checks for HGV drivers and maximum drivers’ hours.

Our specialist health and safety lawyers will identify gaps in your compliance before supporting and advising you on how to improve or remedy issues and reinforce good practices.

This can help you to create a safer work environment, improve staff engagement, develop robust policies and strategies to minimise risk, achieve better levels of legal compliance and ultimately keep people safe before something goes wrong.

Our advice is provided under ‘Legal Professional Privilege’ to afford protection and confidentiality.

Our services include:

• Initial advice, gap analysis and policy review.
• Targeted review — a more detailed review, suitable for organisations that require a specific review of a particular area or topic.
• Comprehensive review — suitable for organisations that want greater legal assurance regarding their health and safety management systems and levels of compliance.
• Stress test — gap analysis and compliance audit involving an element of ‘real time’ assessment to check how robust your overall compliance is, or how well your procedures, arrangements, policies and control measures are known and implemented.
• Mock regulatory intervention — a mini review and on-site audit, carried out as a regulatory visit, with a mock ‘fee for intervention’ letter following the review to identify any issues and recommend improvements and enhancements.

Our experience includes:

• Online travel company — carrying out an initial review of health and safety policies.
• Independent school — carrying out comprehensive gap analysis (subsequently retained as go-to ‘trusted advisors’, delivering ongoing health and safety services).
• Vocational college and charity — carrying out a comprehensive gap analysis, delivering a report and board training, attending board meetings and setting strategic objectives and KPIs (subsequently retained as go-to ‘trusted advisors’, delivering ongoing health and safety services).

Providing adequate health and safety information, instruction and training is a legal requirement.

Whether you need training for frontline staff to help promote awareness and improve overall compliance or briefings for your board and senior management on their duties as directors, we can support your entire business to deliver on its health and safety training needs.

Our training courses include:

• Introduction to health and safety law.
• Regulatory visits and powers of the regulators.
• Director duties.
• Accident investigation masterclass.
• Legislation updates.
• Board briefings (on health and safety in general or on specific topics or areas of compliance).
• IOSH managing safely.
• Mock trials.
• Mock PACE interviews.
• Mock inquest and inquest familiarisation. 
• Mental health, wellbeing and workplace stress.
• Fire and building safety.
• Product safety.
• CQC regulation and enforcement regime.

Our experience includes:

• Product manufacturers — delivering director duties training alongside our corporate, environmental and business crime colleagues to the board.
• Tier 1 construction contractors — delivering accident investigation masterclasses to support health and safety teams and managers in how to carry out effective accident investigations.
• Civil engineering and groundworks companies — delivering board briefings and training sessions to the board and other senior stakeholders.

We provide expert legal advice to help you conduct thorough internal investigations that fulfil your legal obligations and protect your reputation — all while preventing disruption and damage to your business.

With a range of different packages and options available, we offer simple yet effective steps and guidance throughout the investigation process.

Our services include:

• Commissioning and advising in legally privileged internal investigations.
• Advising on investigation structure, documentation, witnesses and which issues should be examined.
• Informing forensic conclusions and establishing root causes — working alongside chartered health and safety practitioners and advisors as well as leading expert advisors and witnesses.
• Supporting on witness interviews (as part of your internal investigation or a regulator investigation).
• Reviewing documentation.
• Advising on potential liability.
• Presenting findings to the board or senior stakeholders.
• Providing initial advice on enforcement notices, fees for intervention and notices of contravention (NOCs).
• Advising on responses to regulatory requests for information.
• Advising throughout regulatory investigations or inquiries.
• Liaising with insurers, brokers, loss adjusters and civil solicitors.
• Managing press and media.
• Sharing information with third parties, organisations throughout the supply chain and other interested parties.

Our experience includes:

• Renewable energy company — advising in the aftermath of a major fire involving a plant at a customer’s premises.
• Printing manufacturer — advising in the aftermath of a guarding incident where an employee severed three fingers in a cutting machine.
• Principal contractor (construction company) — advising in the aftermath of a major fire during a multi-million-pound renovation works project.

From streamlining incident reporting and escalation processes to supporting with internal investigations and statutory (RIDDOR) reporting and responding to regulatory authorities, we can help you to confidently handle incidents with our full suite of incident and crisis reporting and management solutions. 

Our services include:

• Incident response and crisis management plans.
• Bespoke regulatory visit protocols and guidance.
• Dawn raid advice and policies.
• RIDDOR advice.
• Legal advice helplines (available all day, every day).
• Site visits and inspections.

Our experience includes:

• International manufacturers — reviewing and advising on crisis management and dawn raid policies and (separately) preparing and delivering legal protocols and guidance on how to approach regulatory visits and the powers of the regulator.
• Recruitment business — helping to consider its legal position and RIDDOR reporting obligations following a major fatal accident within a logistics company where it had supplied labour (drivers).
• Children’s day nursery — advising on a major pest infestation, including initial crisis management support, remedial actions, steps to reopen, the internal investigation process and support during the Environmental Health investigation (following which the regulator confirmed ‘no further action’).
• Tier 1 contractors — providing a variety of post-incident and crisis management support.

When the worst happens, you need the best support. Any major health and safety risk, incident or non-compliance is likely to cause significant business interruption and affect your ability to trade. Breaches of health and safety law can also result in criminal liability and attract unlimited financial penalties (which aren’t insurable), as well as cause damage to your reputation and brand.

Seeking specialist advice early on and setting a defined case strategy from the outset can improve your chances of successfully defending or mitigating a case.

Our lawyers are experts in crisis management. As experienced advocates, we’ll be on-hand every step of the way to advise and help you navigate any regulatory investigation, enforcement action or intervention. We can also support you during any inquest, public inquiry or criminal proceeding and assist with any post-sentence outcomes and appeals.

Our services include:

• Fee for intervention (FFI) queries and the dispute process.
• Enforcement notice appeals.
• Interviews under caution and PACE responses.
• Advising on alleged material breaches.
• Responding to notices of contravention (NOCs).
• Defending prosecutions brought by regulatory bodies.
• Preparing for and representing in criminal prosecutions, including magistrates and crown court proceedings, including an initial case assessment (advising on the charge(s), plea(s) and merits of success), pre-trial or hearing preparations, disclosure and witness statements, as well as liaising with leading counsel and experts.
• Trials, sentences and pleas in mitigation.
• Inquests and coronial law.
• Traffic commissioner public inquiries.
• Appeals against sentences and convictions.

Our experience includes:

• Representing the core participant in the Grenfell Tower public inquiry and criminal investigation.
• Successfully defending a major port operator that was alleged to have inadequately managed its arrangements and control measures in relation to explosive materials, avoiding potential multi-million-pound fines.
• Representing a housing provider during an initial investigation and subsequent police investigation for corporate manslaughter, as well as supplying evidence to a coroner’s inquest following the death of a resident who had overdosed on a cocktail of illegal drugs.
• Representing a manufacturing client in an appeal against five improvement notices that alleged breaches in relation to machinery guarding, LEV and COSHH. Three of the notices were ultimately cancelled, avoiding unnecessary and costly remedial work and protecting our client from unfounded enforcement that could have been used to aggravate any future offences.

The Health and Safety at Work etc Act 1974 (HSWA) is the primary piece of legislation that covers occupational health and safety in Great Britain.

Every business is bound by health and safety law — regardless of size or nature of operations. All businesses must — so far as reasonably practical — ensure that their employees and non-employees (such as contractors, members of the public and visitors) are protected from the health and safety risks that arise as a result of their operations.

Additionally, all employees have obligations to take care of their own health and safety, as well as that of others who may be affected by their actions or omissions at work.

Directors, managers, secretaries and other similar officers of a corporate body (including members where the affairs of the business are managed by its members) have specific liability if a health and safety offence is committed by a business with their consent or connivance — or if the offence committed is attributable to any neglect by those individuals.

It’s important to understand the legal obligations placed on you as a duty holder. Getting specialist advice from lawyers and consultants can help to ensure that you’ve met all your legal obligations and implemented a robust health and safety management system to keep you compliant — and keep your employees and non-employees safe.

It’s important to regularly review and refresh your health and safety policies, procedures and risk assessments. Seeking specialist input to stress-test your procedures through spot checks and regular audits can be an excellent way to ensure ongoing compliance.

Rolling out training is essential to ensure that everyone in the business understands your health and safety management system, as well as their own responsibilities. This is a legal requirement. Brabners Protect can provide you with bespoke training materials and briefings to help you discharge this essential legal obligation.

Our Brabners Protect initial status review can help to ensure that you’ve met all your legal obligations and implemented a robust health and safety management system to keep you compliant and your people safe.

It’s also important to regularly review and refresh your health and safety policies, procedures and risk assessments to ensure they’re up to date and robust. Things change and evolve as your business operations and personnel do — your health and safety management system can’t remain static. Our Brabners Protect retained services provide regular on-site reviews, monitoring and support at a frequency to suit you.

Your business should also have demonstrable and visible health and safety leadership to truly embed a strong culture of compliance. Brabners Protect can provide bespoke safety leadership training and support services.

Brabners Protect is always tailored to you. One size never fits all and we believe in only selling you products or services that you need. We’ll give you our advice and recommendations, then work with you to find a solution that suits your business and team.

If a regulator believes that your organisation has committed a material breach of health and safety law, they may take enforcement action against you.

Their options include providing you with informal advice, serving you with an ‘improvement notice’ (requiring you to take particular actions by a certain date) or ‘prohibition notice’ (prohibiting you from undertaking a particular activity for a defined time period) or undertaking a more thorough investigation and/or prosecuting the organisation. Failure to comply with an improvement or prohibition notice is a separate offence for which an organisation can be prosecuted.

Health and safety offences are criminal in nature, so a successful conviction following a prosecution will lead to the company having a criminal record. Additionally, under the Sentencing Council Guidelines for health and safety offences, the fines levied after a successful conviction are potentially unlimited.

For organisations with a turnover between £2m and £10m, fines can range from £100 (for the most minor breaches risking minimal harm) to £1.6m (for the most flagrant breaches with a high risk of death). A turnover of between £10m and £50m can result in fines of £1,000 to £4m. For those with a turnover above £50m, fines can range from £3,000 to £10m.

Individuals convicted of health and safety offences could receive a custodial sentence and/or fine. For offences where the individual fell far below the legal standard and this resulted in a risk of serious harm, an individual can face up to two years in prison. If a fine is levied against an individual, this is determined by reference to the seriousness of the offence and the individuals’ weekly income.  

It’s important to remember that your organisation may have insurance that provides cover for investigating alleged breaches and/or defending health and safety prosecutions. However, as the fines arising from a successful conviction under health and safety law are criminal in nature, they cannot be insured. They will therefore be payable — in full — by a successfully convicted organisation or individual.

The regulator is also entitled to recover its costs for investigating and the enforcement of health and safety law when a material breach has been identified. For complex investigations — particularly those involving serious injuries or fatalities — the timescale from incident to prosecution can span several years, so the cost of the regulator’s time to investigate and prosecute an organisation can be significant. These costs are also unlikely to be covered by insurance.

Given the serious consequences associated with health and safety breaches and the general trajectory of increasing fines each year, it has never been more important to ensure that you have a robust health and safety management system in place.

We’ll always be there with you when the worst happens — but proactively managing risk through Brabners Protect significantly reduces the likelihood of serious incidents occurring in your business.

If an incident does occur — or the HSE believes that it has identified a material breach of health and safety law during a site visit — being able to demonstrate a robust approach to health and safety management through Brabners Protect will go a long way to help defend or mitigate any enforcement action. It can also have a significant impact on any fines imposed following a successful conviction.

Health and safety law is usually enforced by the Health and Safety Executive (HSE) or local authority. Other regulatory bodies (including Trading Standards, the Office of Road and Rail and Ofsted) all play a part in assessing and enforcing health and safety law.

While you should always be polite and cooperate with the regulator, remember — it’s never just a friendly chat. A regulator’s visit could be the first step in a criminal investigation against your organisation.

Always ask to see a copy of the regulator’s ID and understand the purpose of their visit so that you can deal with it appropriately. You should make sure that any health and safety induction or sign-in procedure usually completed by visitors to your premises is undertaken. The regulator should then be placed in a meeting room (or similar) while you notify the right people across your organisation and seek appropriate advice about how to manage the visit.

Even during routine visits, it may be appropriate to notify your legal team that the regulator is on-site. They will be able to guide you — either over the phone or in-person — through each stage of the process and help to resolve any issues that may occur.

In all cases, a suitable person from your organisation should be appointed as a single point of contact to assist the regulator during their visit. This person should be fully versed in the regulator’s powers and how to manage a regulatory visit. Remember, cooperating with the regulator doesn’t mean that you have to give them free rein to your site, staff and documents.

Someone should accompany the regulator at all times during their visit and take notes of what the regulator inspects as well as any samples, photos or videos they take, documents they view and questions they ask (and what answers were provided).

Remember that any evidence gathered during an inspection can be used against an organisation in future enforcement actions. Being ‘helpful’ by providing information on matters that you are unfamiliar with should be avoided at all costs. Instead, ask the regulator to provide you with a list of requests for information and documentation in writing after their visit to give you a chance to collate correct responses from the right people. Remember — the regulator is only entitled to receive copy documents — not originals, which should be retained by you.

It's important to remember that if the regulator believes there is a material breach of health and safety law (in their reasonable opinion) when they visit your premises, they can issue you with a ‘notification of contravention’ and recover the costs of their visit and any subsequent enforcement action (currently charged at £166 per hour) under the ‘fee for intervention’ regime.

Health and safety regulators have a raft of powers with which to monitor and enforce compliance.

The full range of these powers are set out in the Health and Safety at Work etc Act 1974.

These include the powers to:

• Enter any premises at any reasonable time (or at any time in a situation which, in their opinion, is or may be dangerous).
• Conduct an examination or investigation.
• Direct premises (or any part of them) to be left undisturbed.
• Take measurements, photographs and recordings.
• Take samples of any articles or substances found in any premises.
• Take possession of any article or substance and detain it.
• Require any person — where there is ‘reasonable cause’ that they could give any information relevant to any examination or investigation — to answer the inspector’s questions and sign a declaration of truth.
• Require the production of any documents necessary for inspection (and request copies).

It’s crucial that duty holders understand the powers of regulators. It’s an offence to obstruct them from exercising their powers. However, it’s also important to ensure that regulators don’t abuse their powers — and that duty holders take the right steps to protect their business from a regulatory inspection.

It’s really important to pick a legal team that you can trust to work with you, guide you through the regulatory process and support your very best interests from the outset following a health and safety incident. Responding quickly to issues as they materialise and having a clear strategy from the outset is key to ensuring a successful outcome in health and safety cases. Having immediate access to a knowledgeable team who deal with these matters on a daily basis is crucial.

Given the potential outcome of a health and safety incident (criminal convictions and substantial fines) we would always recommend that you identify and instruct true health and safety specialists with proven experience and a track record of success defending businesses.

It’s also best to know in advance who you will turn to in a crisis. If you already know the legal team and have a strong working relationship with them, you’ll be in the strongest position when the worst happens.

This is a really common question. The simple answer is that you can choose any firm that you want to represent you. This is known as ‘freedom to choose’ and is a well-established principle. It means that the beneficiary of insurance can always appoint lawyers that they’re comfortable with.

If you choose a firm or lawyer to represent you that isn’t on your insurance provider’s panel, it may mean that your insurer will only pay them the same hourly rates that they pay their panel law firms. If the insurance provider’s panel rates are low and you appoint true specialists, they may ask you to ‘top up’ the hourly rate by contributing some of your own money.

Often, insurance panel firms aren’t health and safety specialists. Without knowledge of the regulatory regime, how the regulator operates and how similar cases have been dealt with in the past, it’s difficult for them to give you the best chance of success in defending or mitigating health and safety enforcement action.

As true specialists in health and safety law, we’re not on any insurance panels. Investigating and defending a health and safety case properly isn’t in insurers’ best interests as it costs them more in legal fees.

How you respond to a health and safety incident will depend on the type and seriousness of the incident. For minor slips, trips or manual handling incidents, it may be sufficient to administer basic first aid on-site and simply record details of the incident. There should of course be a (proportionate) investigation into the root cause of the incident and any incident trends to see if there are steps that could be taken to prevent a reoccurrence and/or mitigate risk.

When accidents lead to more serious injuries or fatalities, the approach should be very different. The key is to have implemented a structured way to identify, escalate, report and manage health and safety incidents internally — as well as a crisis management plan — to ensure that the right actions are taken.

While the priority in the immediate aftermath of an incident should always be to ensure that injured individuals are attended to, controlling or eliminating sources of danger and ensuring minimal disturbance to the scene is also critical. Taking photos, collecting names and details of any witnesses and obtaining a record of everyone on-site at the time is fundamental if the situation allows.

For serious incidents or fatalities, always involve a specialist legal team as soon as possible to help you manage the incident. Specialist lawyers can help you to liaise with regulators (which can include the HSE, Police, the Fire and Rescue Authority and Environment Agency), support you through any regulatory investigation, manage any press enquiries, ensure business continuity (including liaising with employees and other key stakeholders), assist you to carry out your own investigation into the incident and defend or mitigate any subsequent enforcement action.

Additionally, since regulators have the power to take copies of all documents except those that are legally privileged, you will be able to fully investigate an incident and take legal advice about any potential civil or criminal liability without fear of this information being shared with a regulator.

‘Responsible persons’ (including employees, self-employed and people in control of work premises) should also be aware of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) which requires a report to be made to the HSE if particular work-related accidents occur. These include deaths at work, specified injuries (such as fractures other than to fingers, thumbs and toes, amputations, crush injuries, serious burns and loss of consciousness caused by head injury or asphyxia) or when an accident causes an employee to be away from work (or unable to perform their normal work duties) for more than seven consecutive days.

Failure to make a report under RIDDOR is a separate criminal offence that responsible persons can be prosecuted for, so it’s important to ensure the rules around RIDDOR reporting are understood and adhered to.