Jan 282016
 

health & safetyFor 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:

https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf

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?

Jan 082016
 

Directors must resist the temptation to delegate their health and safety duties

Business DayAdmiral Hyman G. Rickover (USN), who was known as the “Father of the Nuclear Navy”, made the following comment about responsibility and the art of delegation:

“Responsibility is a unique concept… You may share it with others, but your portion is not diminished. You may delegate it, but it is still with you… If responsibility is rightfully yours, no evasion, or ignorance or passing the blame can shift the burden to someone else”.

These words have particular significance in the field of health & safety management, a somewhat neglected area of business operations which many directors seem to regard as just a tiresome administrative burden, and thus something which should be off-loaded to a junior manager as quickly as possible!

Delegation may seem the ideal solution but, as Admiral Rickover has pointed out, delegation does not absolve you of your legal responsibilities. The law says (in summary) that all employers have a responsibility to keep employees safe in the workplace, and in practice the burden of that responsibility – known as the “duty of care” – is carried by the company’s board of directors. So if there is a failure in the organisation’s health & safety management systems then the board of directors could be held directly and personally responsible.

This point was clearly demonstrated by the 2012 trial of Lion Steel Equipment for corporate manslaughter following the death of a maintenance worker who fell from the roof. Not only was the company itself charged with corporate manslaughter but its three directors were also charged individually with gross negligence manslaughter, an offence which can result in a substantial period of imprisonment.

What makes the Lion Steel case so important from the point of corporate governance is that one of the directors charged was actually the firm’s finance director, somebody who provided no operational input into the company’s day-to-day management. But that didn’t stop his name ending up on the charge sheet!

So, what should directors do before they decide to delegate their company’s health & safety management en bloc to a junior manager or an external consultant?

First, they need to ensure that their nominated person is qualified to the appropriate level and that this qualification is still valid. Remember that health & safety law can change substantially over time. So, for example, having once had a knowledge of (say) the Construction (Design & Management) Regulations 2007 will be of little use when working with the new CDM 2015 Regulations.

Second, they need to be satisfied that their nominated person has the personal skills and abilities needed to perform the safety management task correctly (and bear in mind that just having a qualification does not in itself guarantee competence!)

Even if the safety management work has been assigned to an external consultant the same checks should still be carried out. Does the appointed consultant actually hold appropriate health & safety qualifications? (Some “consultants” are woefully underqualified for the challenge!) Does the consultant hold a professional membership (which would mean that he – or she – would be governed by that professional body’s code of conduct and ethics)? Does the consultant carry appropriate professional indemnity insurance – and if not, why not?

Delegation is a perfectly acceptable management strategy if it is done properly, of that there is no question, but directors must resist the temptation to delegate their health and safety duties just as a matter of convenience – because therein lies the road to disaster and a personal appearance before one of Her Majesty’s Judges!

About the author:

Andy Farrall Health and SafetyAndy has his own health & safety practice, Management & Safety Training Ltd, and is a highly experienced consultant and trainer (including accreditation with NEBOSH both as a tutor and examiner). He is an accredited accident investigator and is qualified in both the health & safety and training sectors.

A Fellow of the International Institute of Risk and Safety Management (FIIRSM), a chartered safety & health practitioner (CMIOSH) and a member of the UK Occupational Safety & Health Consultants Register (OSHCR), he has a proven track record in fields as diverse as accident investigation, lone worker safety, construction safety, and health & safety training.

Prior to moving into the field of health & safety management he was a specialist investigator with two élite UK law enforcement agencies (including taking responsibility for the management of complex international fraud enquiries).