The Sentencing Council new sentencing guidelines were published on 3rd November 2015 for breaches of the Health and Safety at Work etc Act 1974, Corporate Manslaughter and breaches of Food Safety and Hygiene Regulations and will affect sentencing from 1st February 2016 irrespective of when the offence was committed.
The biggest change is now the offence is in creating a risk of harm rather than actual harm caused meaning it is feasible to be jailed even though no-one has actually been injured. This will be a shock to most company owners and employees.
In setting a sentence the Council states the court has to first decide on the offence category by assessing culpability of the individual or organisation (very high, high, medium or low) and then identify the risk of harm created by the offence (high likelihood of harm, medium or low) and then the court has to decide the outcome of that risk of harm (death/physical or mental injury resulting in dependency on care from a 3rd party; physical or mental injury affecting a person’s day to day life; all other injuries not as serious as the other two levels) and whether actual harm was caused or not.
The court also has to assess how many members of the public or employees were exposed to the risk of harm, the greater the number, the greater the risk of harm.
Once all the above have been considered, the court can then decide upon the punishment.
As I said the real change is the offence is now in creating a risk of harm rather than actual harm and taking into account the numbers exposed to that harm. So the same offence committed at a busy railway station rather than an isolated area will be considered far more serious and dealt with more harshly.
The fines for breaches of health and safety regulations for companies with less than £2m turnover range from £50 to £450,000; between £100,000 and £1.6m for companies with a turnover up to £10m and up to a £10m fine for companies with turnover in excess of £50m. Individuals will face a fine and up to 2 years in jail.
Companies found guilty of corporate manslaughter will face fines ranging from £180,000 to £20m. Fines for breaches of food and hygiene regulations for companies will range from £100 to £3m and individuals will face an unlimited fine and/or 18 months in jail.
The Council has explicitly stated the “fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation.” It will be no defence to a fine that it will put the company out of business as the Sentencing Council has stated this may be an acceptable consequence.
It can be seen the factors which will determine the punishment are very subjective and until a history of fines or jail terms are built up for comparison purposes, sentences could vary quite widely from one court to another. However it does appear the threshold for jailing company owners, managers, and employees is lower and is likely to result in more people being jailed than under the previous sentencing guidelines.
So what can companies do to help prevent incidents occurring? It goes without saying that it has to start at the top of the company; the owners and directors need to have to a zero tolerance attitude to accidents. Employees must not be afraid to report near misses and measures should be put into place to ensure near misses do not become future accidents. These measures and other aspects of a company’s health and safety policy should be scrutinised internally to ensure risks are managed and controlled. Some companies may prefer to utilise the services of an external body so as to ensure there is no bias or undue pressure brought to bear to achieve unjustified compliance with the policy.
Failure to manage health and safety risks can result in death or injury to members of the public or employees and is likely to result in a large fine, reputational damage in the market place and possibly a custodial sentence and therefore health and safety if it was not already now needs to be a top priority.
