The UK Sentencing Council’s tough new sentencing guidelines for Health and Safety offences have now come into effect. The Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline was published by the Sentencing Council on November 3rd, 2015, and as of February 1st 2016, the document is now being used to direct penalties imposed by the courts.
The guidance was constructed due to a lack of specific guidelines to instruct the courts in how to sentence for corporate health and safety offences not resulting in death, and corporate health and safety offences committed by individuals. Before it came into effect, sentencing was mainly at the discretion of the courts, and in many cases, the fines were considered by the Sentencing Council, in retrospect, to be too low.
This new document ensures that health and safety will be foremost in companies’ workplace plans going forward, due in no small part to the hefty fines that they could be liable for if prosecuted.
The three sections of the document relevant to health and safety are the following:
– Breach of duty of employer towards employees and non-employees
– Breach of duty of self-employed to others
Under the Health and Safety at Work Act 1974 (section 33(1)(a) for breaches of sections 2 and 3)
– Breach of Health and Safety regulations
Under the Health and Safety at Work Act 1974 (section 33(1)(c))
In determining the fine that an offending organisation is liable for, the courts are instructed to assess the organisation’s level of culpability (low, medium, high or very high), the risk of harm (category 1-4), the annual turnover of the organisation, as well as other aggravating factors. Whether the risk of harm resulted in an occurrence of actual harm is also taken into account. The document also states that “The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation.”
Fines range from £50 (with a suggested starting point of £200) for micro businesses with an annual turnover of £2 million or less, where there was a low culpability and the assessed harm is harm category 4, through to £10 million (with a suggested starting point of £4 million) for large businesses with an annual turnover of over £50 million, where there was a very high culpability and the assessed harm is harm category 1. The offender is also expected to provide comprehensive accounts for the last three years, to enable the court to make an accurate assessment of its financial status. If they can’t provide them to satisfy the courts, any fine is applicable.
Under the same health and safety breaches as above, an individual is assessed for their culpability and harm in a workplace offence. For those that have committed an offense under harm category 4 and with a low culpability, offenders may receive either a conditional discharge, or a fine which will be between 25% and 75% of the offender’s weekly income.
For someone that has medium culpability, but the harm was assessed at harm category 1, the offender may receive a fine of 500%-700% of their weekly income, through to finding themselves in custody for one year. An offender with high culpability and harm assessed at harm category 1 could expect to find themselves behind bars for between one and two years.
For corporate manslaughter offences, harm and culpability are obviously serious. The courts must determine how foreseeable the event was, whether the type of breach was widespread within the organisation, how far the company fell short of health and safety standards, and whether multiple deaths or injuries did, or could have, occurred.
As before, companies are assessed based on their annual turnovers in determining a fine. The fines can range from £180,000 for a micro organisation, through to £20 for a large organisation. The first lot of cases are now coming through the courts, where penalties in line with the new documentation will be issued regardless of when the offence occurred.