On 1 February 2016, new sentencing guidelines came into force for a variety of offences including health and safety, corporate manslaughter, food safety and hygiene offences. These represent the most dramatic changes in health and safety enforcement since 1974.
The new guidelines are designed to influence the behaviour of decision makers within a business and there is an increase in potential penalties across the board. The higher penalties are intended to have a real economic impact on non-compliant businesses and consequently send a message about the importance of Health and Safety regulation.
Whereas previously fines in the lower courts were limited to £20,000, it is now possible for fines of up to £450,000 to be applied to companies with a turnover of up to £2m, and for companies with a turnover in excess of £50m, this could be as high as £10m. Additionally, whereas custodial sentences were previously only available in exceptional circumstances, individuals found guilty of breaching the law face unlimited fines or the possibility of a two-year prison sentence.
Another important change is the way that these new guidelines mark a shift from an outcomes-based approach to a risk-based approach. Crucially, this means that if you are aware of a potential health and safety concern and fail to address it, then you could be held culpable for deliberately breaching regulation and penalized accordingly, even if no actual harm has come from the breach.
You can see the dramatic affect these changes could have when considering a recent case sentenced only weeks before the introduction of the new guidelines. This case involved a Company with a turnover of more than £50 Million which would place it in the “Large” category under the new guidelines. The company produced grain for animal feed and had several sites throughout the UK.
A fatal accident occurred when a HGV driver, who was not an employee of the Company, attended at one of the Company’s sites. Sadly the driver died after being engulfed by a pile of feed. This hazard was known and long standing. Employees at other sites had received training on the risks to visitors but training had not been undertaken at the site where the incident occurred.
When sentencing, the Judge indicated a starting point of £900,000 but applied the usual one third discount for a guilty plea and fined the Company £600,000.
Under the new guidelines the following factors could be argued by the prosecution:-
• The risk of death was known
• There was a high likelihood of this incident occurring;
• The company had high culpability as it was aware of the risk for a long standing period and the Company failed to act.
The starting point for the sentencing Judge under the new guidelines could arguably be as high as £2.4 Million with a potential of a fine up to £6 Million
Fee For Intervention
The Health and Safety Executive have also recently increased their Fee for Intervention to £129 per hour to investigate and process a breach which means that companies now face a significant increase in expense following a breach.
This increasing emphasis on culpability, penalization and potential risk, means that you will need to re-evaluate current risk assessment procedures, something Thompson & Richardson can advise you on and help improve your risk management procedures.
Thompson & Richardson can provide you with cover for the cost of dealing with regulators, including the HSE’s Fee for Intervention, as well as provide free access to a 24/7 crisis line and unlimited legal advice from qualified solicitors on a range of regulatory and legal issues.
As our client you would also have access to nearly 2,000 pages of free advice, templates and guidance on risk management and health and safety on their website, to help avoid regulatory breaches and the financial repercussion associated with them.