It’s now five years since the implementation of new court guidelines for sentencing HSE offences. We would suggest they have had a positive impact as the possibility of a prison sentence has persuaded businesses to invest more in protecting their people. However, more still needs to be done.
During the last five years, the average fine has tripled whilst prosecutions have halved.
Following the implementation of The Sentencing Council’s Health and Safety Offences, Corporate Manslaughter and Food Safety & Hygiene Offences Definitive Guideline, on 1 February 2016, the average fine handed out by courts increased from just over £54,000 in 2015-16, the year before the guidelines were introduced, to over £150,000 in 2018-19.
Whilst that figure fell by 27 per cent to £110,000 in 2019-20, many fines since the guidelines were introduced have topped £1 million and involved some high-profile organisations.
In the same period, the number of enforcement notices issued by the Health and Safety Executive to remedy breaches without court action, has fallen. Provisional figures for 2019-20 showed there were 7,075 notices, the lowest since 2007-08.
What did the new court guidelines for sentencing mean for businesses?
The Definitive Guideline was issued by the Sentencing Council partly in response to continued public disquiet that sentences passed down to organisations and individuals for the most serious offences of this type had been too low.
The basic structure of the Definitive Guideline is tariff-based, with specific starting points and ranges and the courts must adopt a step-by-step approach to sentencing.
It should not be forgotten that obligations in relation to health and wellbeing exist in tandem with those relating to safety and preventing accidents, with the penalties for breaches of these obligations the same as those for safety breaches. This gives the court a starting point and range of possible fines.
Different starting points and ranges apply depending on the size of the organisation, determined by reference to turnover or equivalent. For example:
- large organisations (those with a turnover or equivalent of £50 million or more) now face fines with a starting point of £4m and range from £2.6m to £10m on conviction for the most serious breaches of health and safety legislation. Even larger fines are likely where an offending organisation’s turnover or equivalent very greatly exceeds £50m.
- As fines are based on turnover, they could have a disproportionate impact on companies where turnover is very large compared with the bottom line. However, pre-tax profit is relevant at a later stage of sentencing to ensure the fine is proportionate.
What is the message from IOSH regarding court guidelines for sentencing HSE offences and have they had a positive impact?
IOSH say the level of fines and reputational impact undoubtedly makes businesses more determined to prevent accidents and work-related ill health.
However, they also say the desire for doing so should not be merely financially motivated and believes the UK’s fatal workplace injury figures show there is still room for improvement.
Ruth Wilkinson, Head of Health and Safety at IOSH said, “The average fine amount rose sharply in the first few years after the guidelines were introduced, substantially for larger organisations. We believe this, coupled with the reputational impact and worker, public and supply chain requirements for safer working practices and responsible employers, has had a significant impact in persuading businesses to invest further in looking after their workers.”
“Whilst you cannot put a value on human life, the level of fines now being handed out demonstrate and recognise society’s disapproval of serious corporate failures that lead to injury, illness and death. It reflects a desire to deter others from making the same errors and takes significant steps forward in aligning penalties for these offences with other regulatory breaches in the UK.
Before the introduction of the guidelines, there was little assistance for courts sentencing health and safety offences.”
Your Duties
As an employer, you must protect your workers and others from getting hurt or ill through work.
If you do not, a regulator such as the Health & Safety Executive (HSE) or local authority make take action against you under criminal law.
REMEMBER: Good health and safety management will help prevent the risk of prosecution.
If you would like further advice, please contact the health and safety team on 01302 341 344.
By Chris Longden – Risk Consultant