Health and safety law can be a challenge to navigate.
Employers must get their policies and procedures spot on, otherwise you risk a hefty fine or even a custodial sentence if something goes badly wrong. For years the legislation has stayed the same, but this is about to change - increasing the pressure on employers to properly manage their risks. In this blog we examine the forthcoming changes to health & safety legislation.
Risk-Based Sentencing: Convictions Rise Dramatically
In February 2016 Sentencing Guidelines for Health and Safety, Food Safety and Corporate Manslaughter offences came into force. This brought the fines for Health and Safety offences into line with those for environmental or financial offences. There has also been an increased focus on risk-based sentencing, which has seen organisations prosecuted and receiving significant fines following accidents resulting in minor injuries or even ones where no injury occurred.
Here ‘the offence is in creating the risk of harm, not that an injury or illness has actually occurred’. The latest enforcement figures published by the Health and Safety Executive (HSE) for Great Britain indicate a rise in Health and Safety fines of around 80%, from £38.8 million in 2015/16 to £69.9 million in 2016/17, with the latter period being the first full year of the Sentencing Guidelines being in force. This makes for an average penalty of around £126,000 per case — more than double the average fine in 2015/16.
There has also been an increase in immediate and suspended custodial sentences in 2016/17. In the previous year, 4% of offences received convictions that resulted in an immediate custodial sentence and this has increased to 6% in 2016/17. Similarly, there has been an increase from 6% of offences convicted, resulting in a suspended sentence in the previous year to 12%, in 2016/17.
Consultation on Manslaughter Sentencing
The Sentencing Council recently consulted on proposals for sentencing those convicted of manslaughter in England and Wales. The draft guidelines cover four types of manslaughter including unlawful act manslaughter, manslaughter by reason of loss of control, manslaughter by reason of diminished responsibility, and gross negligence manslaughter. Gross negligence manslaughter applies to workplace accidents. This is where the offender’s breach of a duty of care causes the death of the victim and amounts to a criminal act or omission under Health and Safety law.
of this would be if an employer completely disregards the safety of employees in the interest of profit. Although gross negligence manslaughter can be hard to prove in cases of work-related fatality, under the proposed Guidelines if an employer is found guilty then the courts will be able to impose between 1-12 years’ custody.
The length of the sentence will depend on the employer’s culpability, compared to the current available sentence of up to 2 years’ custody. As with the 2016 Sentencing Guidelines for Health and Safety offences, if the defendant was motivated by financial gain or the avoidance of cost then it will be considered an ‘aggravating factor’ and will likely attract a custodial sentence at the higher end of the scale.
Fire Safety Under Review
The Grenfell tower block fire, which killed 71 people in June this year, has been a watershed moment for fire safety - prompting an independent review which is being led by the former chair of the HSE Dame Judith Hackett.
The review will examine whether current fire safety law and guidance is fit for purpose. The goal-setting nature of the Regulatory Reform (Fire Safety Order) 2005 (RRFSO) is under consideration. One of the requirements of which places the responsibility to manage and assess fire risks on premises duty holders, instead of the previous scheme where local fire services carried out inspections and issued safety certificates.
There is also felt to be a disconnection of responsibility and awareness of fire safety requirements between the client, architects, designers and contractors, with perceived gaps between the Building Regulations and fire safety laws. The competence of fire risk assessors and the quality of fire risk assessments is also a key concern, with organisations such as the Community Interest Company pushing for tightened competency requirements and the creation of a national register for assessors. The review is due to report in Spring 2018.
The authorities are clearly intent on making employers more accountable for their Health and Safety failings, with more aggressive sentencing both for organisations and individuals. The move to risk-based sentencing has also seen an increase in significant fines handed down to organisations, even if no injury has occurred. This reinforces the fact that Health and Safety should not be considered a ‘nice to have’ but rather an essential business issue that must be managed as vigorously as any other. If you need advice and support with Health and Safety please contact our experts on 0808 145 3490 .