October 25, 2016
New H&S sentencing guidelines are hitting small businesses hard
11% of ALL prison sentences for H&S offences (since guidelines were first introduced in the Health and Safety at Work Act in 1974) have been handed out in the last eight months to October 2016.
In a trend we predicted in our Sentencing Guidelines update webinar earlier in the year (hat tip), recent reports show 23 people received prison time or suspended sentences for H&S breaches in the last eight months – compared with 166 in the last 42 years (less than five a year).
That’s an approx. 900% increase in the annual average conviction rate, and the vast majority (20) of those convicted were directors of small businesses.
So why is this happening? And how can you protect yourself from this increased risk?
The sentencing guidelines for H&S offences are more severe
The sentencing guidelines [PDF], effective from February 1 this year, lowered the threshold for custodial sentences – with even ‘low culpability’ offences potentially resulting in 26 weeks’ imprisonment.
Magistrates have been given the power to use jail sentences in addition to increased fines, and perhaps most powerfully jail terms can be imposed for most H&S offences (it was previously limited to specific breaches).
Prosecuting authorities are more likely to impose prison sentences for H&S offences
In addition to the lower threshold and greater severity of sentencing guidelines, there has been an observable long-term trend towards personal prosecution of Senior Managers and Company Owners.
Previous reports show that between 2011 and 2014 there was a 400% increase in prosecutions against individuals for safety offences.
So what’s driving this trend?
Under Section 37 of the Health and Safety at Work Act an individual can face prosecution if it can be shown that a company has breached the Act with the consent, connivance or neglect of that director.
And prosecutors’ interpretation of neglect has changed in recent years.
Directors and business owners can no longer claim they were unaware of bad practice; the prosecutors’ view is that by virtue of their position they should be aware of bad practices or gaps in their procedures.
Additionally, fatalities resulting from an accident at work may not be investigating by the HSE.
Corporate Manslaughter and Gross Negligence Manslaughter charges are increasingly being brought by Police forces, and indeed some forces have set up special teams to investigate these cases.
Are you confident that your policies and procedure are robust and being implemented correctly?
If your answer to the question is ‘no’ or ‘I don’t know’, then as a director or business owner it would be prudent for you to take steps to ensure this is addressed, for example through auditing existing working practices, showing where policies and procedures are missing or not being acted upon, and creating an action plan to plug any gaps.