Possibly the most important change in Health and Safety enforcement since 1974

The new sentencing guidelines for health and safety offences adopt a range of well-intentioned and apparently rational changes.

However, the outcome over the next few years may well be very much more dramatic than intended, with much greater fines across the board and more individuals being imprisoned for offences that would not previously have been regarded as sufficiently serious to merit a custodial sentence.

The new guidelines published late last year are intended to revolutionise punishment for health and safety offences. The intention is to increase the level of fines for serious offences, particularly for larger companies; whilst reserving prison sentences for very serious offences.  The new guidelines will greatly increase fines and mean that many more directors, managers and junior employees will be handed custodial sentences due to a significantly lower threshold for imprisonment.

The new sentencing guidelines apply to health and safety offences committed by organisations and individuals, as well as to corporate manslaughter and food safety/hygiene offences. These will apply to sentences handed down from 1 February 2016. It remains to be seen whether these changes will improve prevention and save lives, or drive hazardous industries abroad and bring public perceptions of over-zealous enforcement to new heights.

Fatality and Exposure to Risk are just as serious.

The first step of the process is for the court to decide on a culpability factor, ranging from ‘very high’ to ‘low’, which in turn will drive the allocation of a recommended fine.  The ‘very high’ category is triggered if there has been a ‘deliberate breach of or flagrant disregard for the law’.  It is not uncommon for employers to identify a safety problem and know they are non-compliant; this becomes a ‘deliberate breach’ if the problem is not remedied. This means it could be much easier to be found at the extreme end of the culpability scale, and consequently eligible to the most extreme prosecution judgements.

The main health & safety offences are based on exposing people to risk.  However, enforcement practice has until now looked much more closely at the outcome.  The Sentencing Council has adopted a new rationale, dictating that punishment should much more closely fit the level of exposure to risk.  So, exposing someone to a high risk of death should warrant almost the same sentence regardless of whether there is a fatality or merely an exposure to risk without any injury.

Here’s a working explanation: A loose railing is discovered on a busy mezzanine that could lead to somebody falling from a height of 20 feet.  The high risk of death or disability from someone falling can take this straight into the most serious harm category, even if nobody has fallen.

If there is a breach of the law that has at least a medium likelihood of causing death or disability, then the court is directed, as a starting point, to impose a punishment of one year’s imprisonment, with a range of between 6 and 18 months, depending on other relevant factors. 

Many will judge this to be fair if there has been a fatal accident, but alarmingly, imprisonment will be the conclusion even if there has been no accident at all – just exposure to risk.