Welcome
Welcome to our February Health and Safety brief – your plain English health and safety update
In this issue we provide information on:
- Eye care for employees at work in light of pending legislation
- The long awaited Sentencing Guidelines for Corporate Manslaughter
Before launching in to this months news, I would like to thank one reader who has put me right about an article in the last briefing concerning the Control of Artificial Optical Radiation Regs. which at that time were still under consultation, and I mistakenly gave the impression they were a done deal, consultation has though now closed, so we may yet see some further changes, I will keep you posted if they are significant.
Employee Eye Care - general
Many of us drive for work and or employ people who drive as part of their work. Planned legislation to incorporate eye examinations in the driving test will reinforce the importance of the employers’ duty to protect the eyesight of employees at work.
Currently the legal requirement to look after the eyesight of employees who work for prolonged periods in front of a computer screen is contained within the Display Screen Equipment (DSE) regulations. Other legislation state the duty to provide eye protection for those engaged in hazardous activities or in using hazardous substances.
Eyes on the road
Unlike computer users who are well catered for, and those involved in hazardous processes or use of substances, personnel who drive for work are one group who are often overlooked for provision of eye care. It is thought that most companies in the UK fail to ensure that drivers in their employment can see clearly enough to drive safely.
A possible reason is that there has been no legal requirement for employers to make sure that drivers comply with minimum eyesight standards. Once a driver has passed the mandatory sight test taken during their driving test; which consists of being able to read a number plate at 20.5m, they are not required to prove fitness of their eyesight again during their working lives.
However, as most people’s eyesight deteriorate as they age, especially after they reach about 40, it is inevitable that a large proportion of the country’s driving population cannot see as well as they should.
This situation is likely to change because of legislation passed in the European Parliament in 2006 which is set to be implemented in member states in 2011
Proposal
The current proposal is:
- holders of commercial driving licences will have to have their eyes tested every five years,
- holders of private licences every 10-15 years.
Shorter periods between eye tests can be applied for:
- new drivers,
- those over 50,
- specific medical reasons.
All applicants for the new EU driving licences will need to undergo a visual acuity test, which will include:
- distance acuity (monocular and binocular),
- visual fields, and
- red/green colour test.
The directive does not set minimum standards for vision, but a special code on the licence relating to the requirement for vision correction will mean that anyone stopped by the Police can be identifiable as needing corrective lenses.
It is expected that these changes will lead to fewer accidents, reduced insurance costs, and earlier detection of such eye conditions as cataracts and glaucoma.
Member states have until 2013 to translate the directive into national law, although several, already implement some of the requirements.
Required actions in preparation
- Consider an eye care policy to test the eyesight of all employees,
- Clearly communicate the policy to the workforce so that they are aware of their own duties and rights,
- Encourage employees to inform management of any medical or physical conditions that may affect their ability to drive.
At this stage it is hard to say what the full impact of this legislation on businesses is likely to be, and further guidance is expected.
Further information
Directive 2006/126/EEC on driving licences replaced directive 91/439 on 19 January 2009
Copies of the following guides can be obtained free of charge by e-mailing corporateeyecare@uk.specsavers.com:
- Research: Employers’ interpretation of the DSE Regulations
- Guide to the DSE Regulations
- Guide to driving legislation
Corporate Manslaughter Sentencing Proposals
The Sentencing Guidelines Council (SGC) has released its guidelines to the courts on how they should calculate fines in the event of a conviction of an organisation under the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) and for deaths under the Health and Safety at Work etc Act 1974, these guidelines apply to the sentencing of organisations on or after 15 February 2010.
The guidelines offer advice on the aggravating and mitigating factors affecting an organisation’s level of guilt, the size of the penalty and whether to impose other sanctions such as publicity and remedial orders.
Factors the courts will need to consider when evaluating the seriousness of the case will include:
(a) How foreseeable was serious injury?
(b) How far short of the applicable standard did the defendant fall?
(c) How common is this kind of breach in this organisation?
(d) How far up the organisation does the breach go?
Other aggravating features they must consider;
(a) the number of deaths plus other serious injuries,
(b) failure to heed warnings or advice,
(c) cost-cutting at the expense of safety;
(d) deliberate failure to obtain or comply with relevant licences,
(e) injury to vulnerable persons.
In mitigation an organisation could argue:
(a) a prompt acceptance of responsibility;
(b) a high level of co-operation with the investigation, beyond that which will always be expected;
(c) genuine efforts to remedy the defect;
(d) a good health and safety record;
(e) a responsible attitude to health and safety, such as the commissioning of expert advice or the consultation of employees or others affected by the organisation’s activities.
The guidelines rule out a fixed correlation between the fine and either turnover or profit as being not appropriate, though the court should, however, look carefully at both turnover and profit, and also at assets, in order to gauge the resources of the defendant and re states the principle that whilst a fine is intended to inflict painful punishment, it should be one which the defendant is capable of paying, if appropriate over a period which may be up to a number of years.
Level of fines
The guidelines emphasise fines must be punitive and sufficient to have an impact on the defendant but that fines cannot and should not attempt to value a human life in money, remembering that civil compensation will be payable separately. The fine is designed to punish the defendant and is therefore tailored not only to what it has done but also to its individual circumstances.
For the offence of corporate manslaughter the appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds.
For health and safety offences where the offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.
A plea of guilty should be recognised by the appropriate reduction.
Publicity Orders
Publicity Orders are available in the case of corporate manslaughter only and the guidelines give some clue as to what these might include.
They may require publication in a specified manner and place which may include a newspaper or the defendants website and include the details of:
(a) the fact of conviction;
(b) specified particulars of the offence;
(c) the amount of any fine;
(d) the terms of any remedial order.
Consideration should be given to stipulating in the order that any comment placed by the defendant alongside the required announcement should be separated from it and clearly identified as such.
The first Corporate Manslaughter case
The timing of the release of these guidelines means judges will be free to apply the new guidelines to the first case to be brought under the Corporate Manslaughter Act, against Cotswold Geotechnical Holdings, which will be heard in the coming weeks.
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