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Health and Safety Sentencing Guidelines - two years on

A review of the guidelines, their impact and reminder or the consequences of offences.

On 1 February 2016, the new Sentencing Guidelines for Health and Safety Offences came into effect. Two years later, Reset reviews the impact the guidelines have had and reminds Reset Verifiers and Members of the serious consequences of health and safety offences.

The Health and Safety Sentencing Guidelines from February 2016, gave clear guidance to the courts on sentencing organisations for health and safety offences. Courts now examine culpability, the seriousness of harm risked and the likelihood of harm, against an assessment of company turnover, in order to arrive at the appropriate sentence.

The new guidelines have resulted in an escalation in the level of fines being handed down by the courts. The increased level of fines reflects the cost to the UK economy of workplace injuries and illness, which was    £14.1 billion in 2014/2015, according to the HSE*. There are similar guidelines for sentencing individuals for health and safety offences, with a stronger focus on a custodial sentence for those found guilty of serious breaches.

The culpability of a defendant company or individual remains the most decisive factor in determining the appropriate level of fine to be imposed by the courts. Those companies found to have committed deliberate breaches of the law, or who have deliberately disregarded it, and even those that fall far short of the appropriate standard, will be subject to the largest fines.

How the Fines Work

In order to arrive at the appropriate sentence, the court first decides whether the defendant’s culpability was very high, high, medium or low. Then a matrix is used to cross-reference the likelihood that the incident would lead to harm and, if so, how bad that harm could have been – from minor injuries to lifelong disability or death. The judge must also consider how many people were exposed to the risk of harm and whether the safety failing was a significant cause of actual harm before setting a final harm rating of 1 to 4 (with 1 being the highest rating).

Finally, the court is required to focus on the organisation’s annual turnover or equivalent to reach a starting point for a fine.

The ranges of fine for prosecutions under the Health and Safety at Work Act 1974 are:

 -      micro-organisations (turnover less than £2 million): £50 to £450,000

-       small organisations (turnover between £2 million and £10 million): £100 to £1.6 million

-       medium organisations (turnover between £10 million and £50 million): £1,000 to £4 million

-       large organisations (turnover of £50 million and above): £3,000 to £10 million.

For each harm category, at each culpability there is a suggested ’starting point’ for fines. Judges can move below these starting points for mitigating circumstances, such as a good safety record or an early guilty plea. Obstructing an investigation or cost-cutting at the expense of safety, will push the fine above the starting point. It should be noted that a small firm, with low culpability and a Harm Category of 4 (the lowest) can still face fines and Company Directors can face personal fines and consequences.

Large fines for near misses

Under the new guidelines, courts are also starting to issue large fines for companies who have exposed workers or others to serious health and safety risks, even where an actual incident has been avoided. Judges have given significant fines if the risk of death or serious injury would have been extremely high, even without an incident actually occuring.

Two years on

In light of the guidelines’ focus on company turnover, fines for large and very large companies that are guilty of committing health and safety offences have increased significantly. Individuals responsible for such offences are coming under even greater scrutiny, and higher sentences are being imposed. The courts have sent a clear message about the importance and value of protecting human lives, and the cost of failing to do so.

The largest fine in 2016 was two-and-a-half times the size of the largest fine in 2015 and almost ten times larger than the largest fine in 2014. Nineteen companies received fines of a million pounds or more in 2016 (the largest being £5 million), compared to only three in 2015 and none in 2014.

In 2015–2016, 46 company directors and senior managers were prosecuted under health and safety law, compared to an annual average of 24 in the five previous years. The new guidelines make it increasingly likely that a director could go to prison, not only where breaches are intentional but also where there is a flagrant disregard or a ‘blind-eye’ approach evident.

The culpability of a defendant company remains the most decisive factor in determining the appropriate level of fine to be imposed by the Courts. In the Alton Towers’ “Smiler” rollercoaster case, the judge described Merlin Attractions Operations efforts as a “failure of corporate processes and management systems.” The judge agreed with the HSE’s submission that Merlin’s culpability was “high”, while its turnover of £300m placed it in the “large company” category. The judge set a fine of £5m, the largest to date for a non-fatal accident. 

Ensuring your organisation is compliant

The importance of demonstrating and maintaining high standards of compliance with health and safety legislation has never been greater. It is important for organisations to be able to evidence that they have robust safety management systems in place that are properly implemented.

When organisations bring contractors or service providers onto site, they have a legal duty to ensure that they are fully qualified and competent to carry out their work. Doing so helps to safeguard employees, visitors and everyone else on site.

Reset helps organisations verify and monitor the competence of contractors on site.  It enables organisations to carry out free, fully auditable checks in seconds and keep track of contractors’ compliance.  For Reset Member Companies, Reset allows them to demonstrate that their employees are fully competent and qualified to work on site, in compliance with HSE and CDM regulations.   

Companies and organisations with effective policies and demonstrative procedures can avoid these huge fines, and, more importantly maintain a safe environment for their staff, visitors, contractors and members of the public.

For more information on how Reset can help you to manage your contractors and your site, please contact support@rcscard.co.uk

* Health and Safety at Work 2016: Summary and Statistics for Great Britain. Published by Health and Safety Executive and National Statistics. 

Sources:

Sentencing Council

Safety and Health Practitioner

IOSH