For many years it’s been almost a tradition for companies to treat the subject of health & safety management as something of a joke; as the poor relation in the management world; as something of an afterthought or optional extra.
Well, in the UK things are about to change (and change radically) with the introduction of the new Sentencing Guidelines for health & safety offences which come into effect on 1st February 2016.
Make no mistake: these are not just technical changes as to how offenders will be punished but are instead a fundamental overhaul of current sentencing policy. Of course, health & safety law has always had teeth – but now these teeth have been dramatically sharpened!
Let’s look at some of these changes in a little more detail, and those of you who wish to consider the guidelines in their entirety can download a copy from the Sentencing Council using the link:
The first, and most obvious, change is that the range of financial penalties available to the courts has been increased, and this is especially true in the case of magistrates’ courts. Up to 1st February 2016 the maximum fine available to the Bench will remain at £20,000 per offence, but from 1st February this will increase to “unlimited”, which means that magistrates will be authorised to levy the same magnitude of fine as the Crown Court.
In order to ensure as much uniformity in sentencing as possible the Guidelines also suggest ranges of fines applicable dependent upon the seriousness of the offence and the turnover of the company. (And note that the criterion being used is “turnover” and not “profit” – a significant detail).
For a “micro” company (i.e. defined as one with a turnover less than £2 million) the range for the most serious breach is £150,000 – £450,000, but for a “large” company (turnover of £50 million or more) the range for the most serious breach is £2.6M – £10M.
However, note that this upper figure of £10M is not the maximum fine which a court has the power to impose. The figures quoted in the Guidelines are only asuggested range, and courts can use their discretion to increase fines should they feel the increase to be appropriate in the interests of justice.
This approach is supported by the Guidelines which state clearly that:
“Where an offending organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence”
The overarching principle behind the levy of fines is also clarified in the Guidelines as follows:
“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 & safety legislation”
Well, offenders can’t say they weren’t warned!
In addition to substantially increasing the magnitude of available fines the Guidelines also include an important change in how the seriousness of offences should be assessed by the court. Currently the seriousness is based on how much harm was actually caused, but from February the courts will look instead at therisks involved in the breach – i.e. they will look at what could have happened rather than what actually happened. To quote the Guidelines:
“Health & safety offences are concerned with failures to manage risks to health & safety and do not require proof that the offence caused any actual harm. The offence is creating a risk of harm”
To put this new approach into context, consider the case of a company which has allowed the use of machinery on which the protective guards have been disabled (and, unfortunately, such management stupidity is not an uncommon occurrence!)
From February it will be irrelevant whether somebody was actually injured by this practice. The fine will be based upon the risk involved, upon the possibility that somebody could have received a life-changing (crippling) injury, and this consideration of foreseeable risk pushes the offence towards the higher end of the sentencing spectrum.
So far we’ve only looked at the potential effects of the Guidelines on organisations, but what about people? The maximum prison terms that can be imposed remain unchanged at 6 months for offenders sentenced in the magistrates’’ court and two years for persons sentenced in the Crown Court, but the change in philosophy regarding the potential harm which could have been caused by the offence will affect the likelihood of a custodial sentence being imposed.
In the example given above, that of a company failing to guard machinery effectively, it is quite probable that the senior manager/ director responsible for company operations will face an individual charge under s37 Health & Safety at Work Act 1974 for allowing the organisation to breach health & safety legislation.
Basing his sentence on the risk of serious (i.e. life changing) harm being caused by his failure will mean that he is in peril of receiving an immediate custodial sentence of between 6 and 18 months. He may not be sent down, of course, but unless there are suitable mitigating factors the Judge would certainly be acting within the Guidelines by imposing such a penalty.
Space is limited, and so I have been unable to do more than look at just a few highlights contained within the Guidelines. Nevertheless, even this quick overview should have made abundantly clear to senior managers and directors the need to take their health & safety management duties very seriously from now on.
Remember that unambiguous statement contained within the Guidelines:“Health & safety offences are concerned with failures to manage risks to health & safety”. Could they have made their warning any clearer?