The punishment is more likely to fit the crime
New legislation is impacting upon health and safety in a way that is fluid and unpredictable at present. But the most likely outcome of recent crucial changes in law and judicial approach is that the punishment is more likely to fit the crime in future; and that is bad news indeed for those employers and organisations who continue to ignore the need for proper risk assessments or believe they simply don’t have to conform to “elf ‘n safety” rules as long as the job gets done.
The headline change that has taken place from the beginning of February is the introduction of the new sentencing guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences in England and Wales. The definitive guide produced by the Sentencing Council will have a major bearing on the level of fines and prison sentences imposed for offences as well as putting far greater emphasis on culpability and the level of exposure to risk of injury or death.
The full guide can be found on the Sentencing Council’s website at www.sentencingcouncil.org.uk/publications and it is well worth reading through to understand the full implications for companies, organisations and individuals. In an era where safety at work seems to be regarded in some political quarters as a source of ‘red tape’ which threatens to bring the wheels of industry grinding to a halt, it is refreshing in its precise summary of where responsibility lies and its acknowledgement of the prime importance of risk prevention and management.
Sentencing guidelines are not optional
In case the term ‘guidelines’ sounds rather similar to those guidelines sometimes associated with Approved Codes of Practice (ACoPs), which are so often pushed to the wayside in working practice, potential offenders should beware: sentencing guidelines must be applied under the Coroners and Justice Act 2009 and they are not optional. These particular health and safety guidelines categorise both culpability and risk, and they are also prescriptive in setting the margins for fines and sentences.
Fines for companies will take account of turnover and could amount to £10 million for health and safety offences under the Health & Safety at Work Act 1974 or £20 million for manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007. Further, companies in the ‘very large’ category of turnover (significantly above £50 million per annum) will face much higher penalties to reflect the size of their business. Individuals face a prescribed range of punishments, too, which could see prison sentences of up to two years being handed down to some of the worst offenders under either HSWA 1974 or food safety and hygiene regulations.
SMEs must take a more serious approach to health and safety
Vitally, this does not represent only a punishment charter for the rich. Those small and medium businesses who have been either indifferent or plainly dismissive of their responsibilities and duties must now take a much more serious approach to health and safety. For example, ‘micro’ companies with turnover below £2 million could still pay a fine of up to £450,000 for health and safety offences or up to £800,000 for corporate manslaughter.
Courts must also now look at the degree of culpability and the level of exposure to risk. This is a radical shift and it is no surprise that some experts in the health and safety industry agree that the Sentencing Council’s guide signifies “the most dramatic change in health and safety enforcement since 1974.” (*See SHP Online at www.shponline.co.uk/the-most-dramatic-change-in-health-and-safety-enforcement-since-1974).
The so-called ‘category ranges’ consider culpability and harm. Culpability ranges from low to very high. The ‘very high’ category is described as “deliberate breach of or flagrant disregard for the law”, while the ‘high’ category is described as “serious and/or systemic failure within the organisation to address risks to health and safety”.
I believe it is fair to assume that many offences will fall into either of these higher categories. For example, if you haven’t put suitable risk assessments in place or if you haven’t put risk controls in place, there is a good chance that you will have a ‘high’ or ‘very high’ level of culpability.
Similarly, harm is divided into high, medium or low likelihood in a risk assessment-style matrix which incorporates three levels of seriousness ranging from death or major lifelong impairment (level A) to major impairment (level B) and all other cases (level C).
You can now be prosecuted simply on the basis of what might happen
However, the potential game changer in this category range is found in its description. The Guide states: “Health and safety offences are concerned with failures to manage risks to health and safety and do not require proof that the offence caused any actual harm. The offence is in creating a risk of harm.”
In short, you can now be prosecuted on the basis of what might happen as well as what actually does happen as a result of your failure to manage risks to health and safety. The punishment will be quantified under the matrix and the guide states further that the court must consider “whether the offence exposed a number of workers or members of the public to the risk of harm .. the greater the number of people, the greater the risk of harm.”
Where harm does occur, the court must consider “whether the offence was a significant cause of actual harm” and consider “whether the offender’s breach was a significant cause of actual harm and the extent to which other factors contributed to the harm caused. Actions of victims are unlikely to be considered contributory events for sentencing purposes.”
This provides a fascinating contrast to the thrust of government policy in recent years which has seen among other things a huge reduction in financial support for the Health and Safety Executive (HSE), the downgrading of status of most workplaces and industries from ‘hazardous’ to ‘low risk’, scrapping of many ACoPs, and, of course, legislative measures such as the Enterprise and Regulatory Reform Act 2013 and the Deregulation Act 2015 (Health and Safety at Work) which were designed to slash the ‘red tape’ and remove responsibilities from employers and the self-employed.
Giving the courts power of enforcement
Cynics might well suggest that the new sentencing guidelines are a hammer that will not be used to crack the proverbial nut because there is neither the will nor the resources to wield it. But I would argue that this guide gives courts the power of enforcement that will positively encourage intervention not only by the HSE, who, after all, can now apply a charge for investigation on site through the Fee For Intervention (FFI) scheme, but local authorities and all others involved in promoting and bringing about safer practices in the workplace.
Act now before it is too late
This is an opportunity for review. Every employer, organisation and working individual should give it serious thought. Do you or those you work with have suitable and sufficient risk assessments covering all your activities? Do you have proper controls in place? If not, by failing to act, can you combine the clear risk of accident or ill health occurring with the additional risk that a new legislative force will punish you more heavily than ever before?
The dynamics of health and safety enforcement are irreversibly set for change in the dramatic fashion depicted by industry experts. So my advice is that you should now take a fresh and objective look at your compliance and, if you are in any doubt, seek advice.
Give Steve a call on 0208 408 1560 or email him at email@example.com to find out how these guidelines will affect your business and what Safety Delivery can do to help.