The playing field really does need to be levelled – in the last five years alone we have seen:
- a substantial reduction in funding for the Health and Safety Executive
- the re-categorisation of the health and safety of most workplaces and industries from ‘hazardous’ to ‘low risk’
- the abolition of many approved codes of practice which provided perfectly adequate protection and guidance
- statutory reductions in protection and liability through the Enterprise and Regulatory Reform Act 2013 and the Deregulation Act 2015 (Health and Safety at Work)
The new sentencing guidelines came into force in February 2016. They offer a welcome change in tone, and the promise of some teeth.
The accompanying guide itself is worth a look. At only 50 pages long it is easy to apply and is written in plain English. It can be found on the Sentencing Council’s website at www.sentencingcouncil.org.uk/publications
The sentencing guidelines must be applied under the Coroners and Justice Act 2009. They are not optional and achieve two things:
- they categorise culpability risk and harm
- they set the margins for fines and sentences.
Culpability has been categorised from low to very high. The ‘very high’ category applies where there has been a “deliberate breach of or flagrant disregard for the law”.
The ‘high’ category applies where there is “serious and/or systemic failure within the organisation to address risks to health and safety”.
Harm is also divided into high, medium or low and contemplates three levels of severity ranging from death or major lifelong impairment (level A) to major impairment (level B) and all other cases (level C).
When sentencing, 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.”
Fines for companies will now take account of turnover and can amount to £10 million for health and safety offences under the Health and Safety at Work Act 1974 or £20 million for manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007.
Companies earning significantly above £50 million a year will face much higher penalties to reflect the size of their business.
Individual offenders can be handed prison sentences of up to two years under either HSWA 1974 or food safety and hygiene regulations.
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.
Significantly the guide says: “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.”
This will cover the ‘near misses.’
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.”
The new rules are more practical, more intelligible and easier to apply. Were more resources made available for the HSE to bring more cases to court, their impact would be even greater.
When union members and officers raise health and safety concerns, employers should not now be able to dismiss such concerns so readily.
Warning notices to employers drafted in similar terms to the guidance literature are likely to have a beneficial effect on health and safety.
A reminder that the risk of harm can also attract a penalty will also not go amiss.
Safety is no accident. The Elf is back on the agenda.