November 28, 2016
New sentencing guidelines focus on potential outcomes of H&S breaches
How have the latest changes to sentencing guidelines affected the outcomes of recent cases and why should business owners shift their focus when managing Health and Safety failures?
A recent case involving a care home resident falling down an unprotected stairwell provides a stark reminder of the need to protect against falls from height, specifically where vulnerable groups are concerned.
The care home operator was fined £1.5 million and ordered to pay costs of £200,000, and the Manager was also ordered to pay £20,000 in costs and sentenced to a nine month suspended prison sentence.
Both the Manager and care home operator were prosecuted for offences under the Health and Safety at Work Act.
It’s worth noting that the operator of the care home, ‘Company A’, was part of a larger group of companies.
This is significant because under the sentencing guidelines in place since February 2016 the turnover of the business is a factor in determining the level of the fine.
In this case the defence counsel argued that the care home was operated by ‘Company A’ as a standalone company. The Judge did not accept this argument and could have used the group’s annual turnover to determine the level of fine (as it happened the £1.5 million was, in the end, not determined by the whole group’s turnover in this case).
Potentially the fines could have been much higher because, in addition to turnover, the new guidelines also allow the judge to pass sentence based on the potential outcome of any health and safety breach.
Higher levels of harm mean higher fines for breaches
This was the case in the recent Alton Towers sentencing where it was evident the serious injuries sustained by those involved could have been fatal. The sentencing for the Alton Towers offence was therefore based on the potentially higher levels of harm.
Indeed, one of the early cases heard following the implementation of the new guidelines resulted in a £3 million fine despite the fact nobody was actually injured as a result of the breaches.
During sentencing the Judge commented that the risk of death of serious injury would have been extremely high – in applying the guidelines, this may have been regarded as a Harm Category 1 case due to the seriousness of the risk, and the high likelihood of harm.
Shift focus now to protect against future breaches
It’s been just over six months since the launch of the new sentencing guidelines and, on the back of these new parameters, a large construction company has reportedly set aside £25 million to cover the potential increase in fines which could result from ongoing or potential prosecutions.
It’s a move which business owners of all sizes should take note of as a shift in focus to the increased costs of failing to properly manage Health and Safety will be increasingly pressing as we go into 2017.