New sentencing guidelines for health & safety offences came into force from the beginning of February 2016. They are intended to increase the level of fines, particularly for larger organisations. However, unintended consequences of the way punishments are now calculated mean that courts will hand out much larger fines than previously expected and send many more directors, managers and employees to jail for breaching health & safety laws.
How will the new guidelines work?
For most health and safety offences, the law now offers unlimited fines, leaving it to judges and magistrates to decide how the fine should ‘fit the crime’. To help the Court the Sentencing Council have created the guidelines which are now in force.
Inspection of the sentencing guidelines shows that there are now four significant factors which are going to significantly increase the level of fines. Equally the changes have impacted upon the threshold for imprisonment, meaning that this will be reached very much more easily than it has before.
The sentencing guidelines introduce a structured approach that the court must follow. This involves fitting ‘culpability’, ‘likelihood’ and ‘harm’ factors into a series of predefined tables to reach recommended starting point fines, as well as ranges of fines above and below the starting points. Again with imprisonment of individuals, the tables stipulate ranges of sentences above and below various starting points.
The new guidelines see a significant move from the traditional result based approach (what was the seriousness of the injury) to a risk based approach (how serious was the harm that was risked).
As an example of how this change could impact on suppose someone is walking through a warehouse and an object falls from high racking landing on their foot and damages their toes. Previously such an incident would be have seen a more lenient approach to prosecution and sentencing than if the same thing had hit someone on the head, killing them.
Under the risk based system, an injury to the foot or toes, is easily in hindsight, seen as having involved a high risk of death or permanent disability and is calculated at a level of fatality.
In reality all non-fatal accidents or incidents relating to health and safety, could have resulted in a more serious outcome and the new guidelines will lead the courts to sentence companies and individuals to a level relating to the more serious outcome.
Alternatively, if the offence exposed didn’t just impact on one person, but exposed a group of individuals to harm, the Court is again directed to punishment at a higher level.
Finally, if someone is actually harmed in an accident or incident, Courts are once again directed to increase the level of punishment.
So What Happens Now
Firstly business owners, board members, senior managers and employees need to understand that complying with health and safety is not a goal, for their business to achieve. It is in fact the bare minimum that the law requires employers to do. With that in mind, failure to achieve the bare minimum will eventually lead to something going wrong and when it does, the combined effect of the new guidelines will lead to criminal sanctions, starting in the middle of the scales. While the Courts are allowed some level of discretion, it is not enough to move too far away from the prescribed sentencing tables.
An example of this will be the impact on an individual’s liberty. It will be extremely difficult if not impossible for someone to escape a jail sentence, when convicted, if they were aware of a risk, did nothing and it resulted in several people being exposed to a ‘medium’ likelihood of death or disability.
With the chance of hugely increased fines and the real possibility of imprisonment, it has never been more important to bring the importance of health and safety to the attention of board members and senior managers, along with employees and explain how the law expects them to act in order to stay out of jail.