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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.

Mitigating factors

  • No previous convictions
  • Good H&S management and H&S management systems
  • Company has taken steps to remedy the wrong and has demonstrated a particularly high level of co-operation with the investigation

Aggravating factors

  • Lack of H&S policy and risk assessments
  • History of relevant offences
  • Offence was committed for financial gain

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:

  • Liaise with their health & safety professional (in-house or external) to thoroughly review and over-haul their health & safety management systems;
  • Make sure that health & safety policies,  procedures and risk assessments for employees and contractors are current, regularly reviewed and that they cover all working activities. Very importantly these policies and procedures must be fully implemented, with evidence to back that up – Laura Gillespie of Pinsent Masons has advised that, “Mere policies will be cold comfort to your organisation if, when the regulators blow the dust off them, they realise that the culture of the company is one of apathy – or, worse still, blatant disregard.”
  • Ensure that all employees and contractors are subject to regular training needs assessment and that they have had the appropriate training to work safely, this will include board members and senior managers undergoing health & safety leadership training;
  • Work with employees to learn lessons following robust investigation into incidents or near-misses and implement measures to prevent a recurrence.