The most dramatic change in health and safety enforcement since 1974, with new sentencing guidelines for health and safety offences, are set to revolutionise punishment for health and safety offences. Company compliance is more critical than ever.
The new guidelines will apply to all health and safety cases sentenced after 1 February 2016, regardless as to when the offence was committed. Fines for the largest organisations in the sector following a fatality could in future cost tens of millions of pounds.
The guidelines set out the methodology magistrates and judges will have to adopt when sentencing, which cover:
- The harm the offence caused, with multiple deaths being considered the most serious. When considering harm – the court is entitled to consider the potential for harm as well as actual harm.
- The culpability of the offender. Was their act or omission a mere oversight, a deliberate decision taken to save money or somewhere in the middle?
- The size of the offender, measured by reference to financial turnover. (In the construction sector – turnover can be a deeply misleading measure of the financial strength of a company and it is a concern that under the new guidelines turnover will be the starting point when considering the size of the offender.)
In the future, courts will be instructed to ensure that fines are sufficiently substantial to have real economic impact on the defendant – intended to remind shareholders and managers the need to provide a safe working environment.
The guidelines will also apply to individuals prosecuted for health and safety offences. The shocking consequence of the guidelines is that it will require very little fault on the part of an individual to result in a custodial sentence, which are currently rare.
Julia Evans, Chief Executive, BSRIA, said: “The UK has one of the best safety records globally. The unintended potential consequence of these guidelines could be that global organisations that suffer significant fines will decide that future global investment will be directed outside the UK where the sentencing regime is far less rigorous.
However, all workers are entitled to a safe place of work. But a balance must be struck: to ensure that the punishment following a conviction is both just and proportionate having regard to all of the circumstances. The message to BSRIA members and the wider industry is clear: re-double all efforts and checks to guarantee your operations are as safe as they can be. The consequences of failing to do so may well be severe.”
All health and safety convictions attract significant media attention and, as such, the Sentencing Council appears to have flouted the reputational and consequential damage caused by a conviction for health and safety offences. Convictions will certainly be required to be disclosed in future tenders which may affect their ability to win future work.
BSRIA promotoes best practice at all times as demonstrated in the one-day Safety in Building Services Design training course.