Health and safety offences relate to failures to manage risks and do not require proof of harm; the offence lies in creating a risk of harm.
Since 1 February 2016, when the Sentencing Guidelines became effective, fines for Health and Safety, Corporate Manslaughter and Food Safety and Hygiene offences have been linked to a corporate defendant’s turnover. Prior to that date fines were often criticised as being too low for the offence committed, the average being £29,000 in 2014/15.
The starting point now for large organisations with turnover of £50 million or more is £4 million, if culpability is judged low and ranges up to £10 million for the most serious regulatory breaches, where culpability and the risk of harm is judged to be very high.
If an organisation’s turnover greatly exceeds the threshold of £50 million, fines can be unlimited as the courts will move beyond the suggested range to achieve a proportionate sentence.
Culpability and Harm Factors
The court determines an offence category (very high, high, medium, low) by considering levels of culpability and then assesses the risk of harm created by the offence, using tables relevant to the size of the organisation. Culpability for an offence will be considered very high if cost-saving has motivated the breach.
Working on a pitched roof without barriers to prevent falls would probably be considered a ‘deliberate breach, or flagrant disregard for the law’ categorising the company’s culpability as ‘very high’ whilst the high likelihood of serious harm or death places it in harm category 1.
Regardless of whether injury actually occurs, the starting point for sentencing a large organisation in this case would be £4 million. Only then might any mitigating factors be considered, such as no previous convictions and having normally effective health and safety procedures in place. On the other hand, a previously poor health and safety record would be an aggravating factor justifying an upward adjustment in the sentence.
Gross Negligence Manslaughter
Gross negligence manslaughter involves a gross breach of a duty of care by an individual which causes or contributes to a death. Amid concerns that sentences have been too light, sentencing guidelines came into effect November 2018 in the hope of ensuring they better reflect the severity of the crimes. There are four levels of culpability from low to very high as with the 2016 guidelines above, but culpability in this case relates to an individual’s conduct.
A breach of health and safety in the workplace attracting such a charge is likely to have occurred over a period of time, perhaps weeks, with evidence that the offender was aware that failure to manage safely could cause a death. Awareness of the risk of death will be categorised as ‘high’ culpability. If the breach persisted for a length of time this would be raised to ‘very high’ and similarly if an individual’s breach was motivated by financial gain or cost-cutting.
If high culpability is established, the starting point for a custodial sentence is 12 years. The starting point would be 18 years if very high culpability were shown, such as through a combination of illegal acts or omissions.
What does this mean for your business?
Rather than have an army of lawyers in the wings, the best approach is to focus on risk prevention techniques and ensure that management at all levels is aware of their responsibility to improve workplace safety.
Discover how the Alcumus PSM (People & Safety Management) health and safety team can help you with risk prevention in your workplace by emailing [email protected].
Find out more about how Alcumus PSM specialises in human resources (HR) and health and safety (H&S) consulting for small and medium-sized enterprises.
Written by Alexis Barrett, Senior Health & Safety Consultant