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Is your business ready ahead of the February 2016 changes to
health & safety sentencing guidelines?
Business owners and boards may still be unaware of the new health & safety and food safety sentencing guidelines that come into force in February 2016 for England and Wales. These sentencing guidelines significantly change the goal-posts in terms of financial and custodial penalties for directors and managers where safety breach incidents have occurred, but they also go one-step further in now including instances where a safety breach might have occurred but didn’t.
Offences that come under the guidelines are varied and could include a building firm that causes the death of an employee by not providing the proper equipment for working at height, a restaurant that causes an outbreak of e. coli poisoning through unsafe food preparation, a manufacturer that causes injury to a new worker by not providing training for operating machinery or a company who have lone worker, one of whom suffers a serious injury due to lack of risk assessment of their working activities .
Judges will be expected to calculate fines primarily on the basis of a convicted firm’s turnover rather than profits or assets. Fines could exceed £10m for serious health and safety breaches or £20m in corporate manslaughter cases, and even more for very large companies. Individual company directors found guilty of “consent, connivance or neglect” in relation to the offence will face potentially unlimited fines and prison sentences of up to two years, according to the guideline.
Courts will be required to assess the overall seriousness of the offence based on the offender’s culpability and the risk of serious harm, regardless of whether any harm was in fact caused. The guidelines refer to mitigating and aggravating factors that the courts can take into account when deliberating the level of fine.
There are fears in some quarters that the new guidelines will greatly increase fines across the board, especially for very large companies. More worryingly, more directors, managers and even junior employees may be handed custodial sentences due to a significantly lower threshold for imprisonment.
Simon Joyston-Bechal of Turnstone Law has advised that, for large organisations, “This may well result in a fine equal to a substantial percentage, up to 100% of the company’s pre-tax net profit…, even if this results in fines in excess of £100m.” Mr Joyston-Bechal goes on to say that, “more than ever before, organisations need to ensure the best health & safety law training is in place for senior executives, so they understand what the law requires each of them to do and the importance of leadership in health & safety to set the right ‘tone at the top’. Records should be kept as part of this compliance, to show that the whole board has received the training. “
Top tips for ensuring that your business is match-fit health & safety wise
The new guidelines present an excellent opportunity, and a pressing need, for businesses to review their current health & safety arrangements. The HSE provides some good, general advice but businesses should also consult their health & safety ‘competent person’, be they internal or external. To mitigate the risk of financial of custodial penalties under these significantly more severe guidlines, businesses are strongly advised to do the following:
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