Earlier this year new sentencing guidelines for health and safety offences came into force. They direct the courts to consider the sentencing of offending organisations by way of a step-by-step approach, primarily examining culpability, the seriousness of harm risked and the likelihood of harm, which are divided into a number of different levels to reflect the scale within each category.
The briefing update below explains this and there is also a link to the ‘Sentencing Councils Guidelines’ which provides more detail.
Health And Safety Update surrounding Health and Safety at Work Act 1974 (HSWA) Update and Sentencing Council’s Guidelines.
The Health and Safety at Work Act 1974 (also referred to as HSWA, the HSW Act, the 1974 Act or HASAWA) is the primary piece of legislation covering occupational health and safety in Great Britain. The Health and Safety Executive, with local authorities (and other enforcing authorities) are responsible for enforcing the Act and a number of other Acts and Statutory Instruments relevant to the working environment.
The new Sentencing Council’s guidance, surrounding HSWA which came into force on 1 February 2016 applies regardless of the date of the offence. It gives judges a framework of tiered penalties for different sizes of organisation, level of harm risked and culpability.
This guidance extends to all health and safety offences, where as previous guidance covered just fatalities. It is modelled on the sentencing guideline for environmental offences, which was introduced back in July 2014.
Once the court has established a starting point using these factors, it must take into account financial information, such as the profit margin of the organisation or the potential impact on employees, and any aggravating or mitigating factors. There are a total of nine steps judges must complete to arrive at the fine.
The Sentencing Council wants fines to be proportionate to the seriousness of the offence and the means of offenders.
Offending companies will be placed in one of four bands depending on turnover:
micro (with a turnover of up to £2m)
small (a turnover of between £2m and £10m);
medium (up to £50m)
large (more than £50m).
For the largest organisations with very large turnovers the council says the fines may be well outside the ranges specified in the guideline.
A medium sized company convicted of the more serious of two severity levels of Corporate Manslaughter Act breaches can expect a fine of between £1.8 million and £7.5 million, with a benchmark of £3 million. The benchmark for the lower corporate killing offence would be £2 million, ranging up to £5 million.
While the sentences will be bigger for medium and large employers, the council says it does not anticipate there will be higher fines across the board, or that they will be higher in the majority of cases than those that are currently imposed.
For micro organisations the starting point for a fine after a high culpability corporate manslaughter offence will be £480,000, which is below the £500,000 suggested in the current guideline.
For offences prosecuted under the Health and Safety at Work Act or other safety regulations there is a more complex framework, but a medium sized employer convicted of a fatal health and safety offence could face fines up to £4 million, depending on its culpability.
But courts will be required to consider the impact of the fine on employment of staff, service users, customers and the local economy, but not shareholders or directors.
If a company has recent safety convictions then the fine is likely to increase, the guideline says. The list of aggravating factors that would make a fine worse include cost cutting at the expense of safety, a poor health and safety record and targeting vulnerable victims. The number and relevance of Notifications of Contraventions will also be taken into account during sentencing.
Mitigating features that could reduce seriousness include a good health and safety record, a high level of cooperation with the investigation and evidence of steps taken to remedy a problem.
Recent examples of fines are;
Very large turnover company fined £2 million – fatality - person crushed by moving vehicle.
Very large turnover company with low profits fined £1 million – fatality – person died whilst repairing road barrier.
For further more detailed information the link in the first line of this note will get you to the Definitive Guideline issued by the Sentencing Council.
Home Builders Federation
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