December 9, 2015
New Year brings tougher punishments for H&S Offences
The biggest change to Health & Safety Legislation since the 70s will come into force in February 2016, which will see offences such as corporate manslaughter, Health & Safety, food safety and hygiene punished more severely.
The introduction of the guidelines will mean that, in some cases, offenders will receive higher penalties for serious offences, particularly for larger companies, whilst reserving prison sentences for very serious offences.
We could see an increase in fines across the board and many more directors, managers and junior employees will be handed custodial sentences due to a significantly lower threshold for imprisonment.
A small business with a turnover of between £2 million and £10 million can expect fines of up to £450,000 where they are found to be highly culpable.
The new guidelines (the Definitive Sentencing Guideline for Health and Safety Offences) will apply to organisations in England and Wales who are sentenced on, or after 1 February 2016 (regardless of the date of the offence) and to all individual offenders aged 18 and over.
Until Scottish guidelines are produced, it may be that Scottish Courts will refer to the new guidelines for England and Wales.
While there are existing guidelines covering fatal Health & Safety offences and corporate manslaughter, there are no specific guidelines on sentencing non-fatal health and safety offences and food safety offences.
As it stands, the existing guidance only pertains to offences committed by organisations rather than individuals. The new guidance proposes that the individual responsible will be charged instead.
Impact of new guidelines
The guidelines base the severity of punishment on:
Culpability is measured or determined on a 4 tier approach with low culpability applying to offences where it can be shown that significant attempts had been made to prevent the breach of legislation.
Very High Culpability is the top tier and the offender will have intentionally breached or flagrantly disregard the law.
Individuals found to be in the Very High Culpability band can expect prison sentences of between 1 and 2 years. Prison Sentences are an option even where the individual is found to be in the Medium Culpability band.
The key change on the sentencing guidelines is a reference to exposure to risk. This could result in high level fines or prison sentences where companies and or individuals have breached legislation even if the breach has currently not resulted in harm to any person.
Why the Change?
A factor which led to the review of the guidelines was a concern that the existing sentences imposed for offences are too low, particularly when it comes to larger organisations.
It is proposed that an offending organisation’s fine will initially be based on its annual turnover.
The guidelines also require the court to consider aggravating and mitigating factors that may warrant movement within the range allowing for lower fines where a business or individual can produce suitable mitigation.
Mitigating factors include that the organisation:
- has no previous convictions or no relevant/recent convictions
- has taken steps to remedy the wrong
- has demonstrated a high level of cooperation with the investigation, beyond that which will always be expected
- has effective health and safety/food safety/hygiene procedures in place
- has a good health and safety/food safety/hygiene record
- has self-reported, cooperated and accepted responsibility
Aggravating factors include that the organisation:
- has committed previous relevant offences
- has breached any relevant court order
- has obstructed justice
- has a poor health and safety/food safety/hygiene record
- has deliberately concealed the offence
- committed the offence for financial gain
Sentences are going to increase for offences sentenced after 1 February 2016. After this date:
1. Should a business breach the relevant legislation it will be key for organisations to demonstrate that culpability and the risk of harm in their case falls into the lower categories and therefore, into the lower ranges for fines.
2. This will be no easy task as prosecutors will be doing their best to persuade the Court that the higher levels of culpability and harm are applicable.
It is important to ensure that Health and Safety and Food Safety is effectively managed to:
1. Prevent and breaches in legislation
2. Mitigate the potential outcome of a successful HSE / EHO prosecution
- Are my policies up to date and compliant?
- Do I have all Risk Assessments and HACCPs in place and are they up to date?
- Are my managers and staff implementing control measures as they should be?
- Do I as a business owner know what is going on at shop floor level?
- Do I need a third party gap analysis to identify any shortfalls in my management of Health and Safety or Food Safety
If you would like advice on this subject, please contact us or call our advice line.