BROWSE CATEGORIES

Most Dramatic change in Health and Safety since 1974

Safety Product Search had the chance to watch the Health and Safety webinar that took on the 27th November. In this article we will briefly go over some of the new changes that are being announced.

There have been concerns that sentences passed for serious health and safety offences committed by organisations were too low. Simon Joyston-Bechal (Director, Turnstone Law) and Kizzy Augustin (Senior Associate, Pinsent Masons) discussed the newly published definitive sentencing guidelines.  This considerably stricter approach to sentencing for health & safety criminal offences will apply from 1 February 2016.  The Sentencing Council believe that when sentencing in order to achieve objectives of punishment, deterrence and removal of gain, the company must have a significant penalty imposed.


The webinar covered:

•    The drivers for change
•    How the new system directs courts to calculate turnover based fines and prison sentences
•    Surprising consequences:
•    Impact of shift from outcome based punishment to risk based punishment
•    How the proposals will combine with the Court of Appeal’s recent judgement to bring in health & safety fines exceeding £100million for the largest companies
•    Significantly reduced threshold for directors and other individuals to face imprisonment
•    Practical tips to reduce exposure to prosecution

Overview of the guidelines

With the new guidelines the court must firstly determine the culpability. They have been split into 4 categories in which the health and safety breach will be put into. The first category is ‘Very High’; this is when the breach is either a deliberate or flagrant breach. The next category is ‘High’; this is when the organisation fell far short of the appropriate standard, and may show evidence of serious systemic failings. ‘Medium’ will show that the organisation fell short of standards but has stayed in between High and Low categorically. ‘Low’ meaning that the organisation didn’t fall far short of the appropriate standard, and evidence that the failings were minor and not systemic.

The next step that a court will follow is to decide the Harm Category. This will depend upon the seriousness of harm risked and the likelihood of harm. These factors are put into a matrix to determine whether the case falls into Harm Categories ranging from 1 to 4, with the highest being harm category 1.

The next step in the guidelines is to identify the organisation’s turnover. The larger the company the larger the fine. An example of this would be if a very large company with a £50 million turnover were fined for Very High Culpability falling under Harm Category 1, they would be fined between £2.6 million and £10 million. They have introduced similar categories for food safety offences.

The court is now going to have to focus on harm risked rather than actual harm. Simon said that it is going to be quite hard for the court to decipher which category a company can come under and it will make it extremely important for them to get it right. If an organisation is being charged for multiple risk or harm the court must consider either moving up a harm category or substantially moving up within the category range at the next step.

What about ‘very large organisations’?


The guidelines now say that when an offending organisation’s turnover very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence. This will mean that the court is not bound by starting points and ranges for large companies. This could mean that fines may be up to 100% of the company’s pre-tax net profit, even if it means the fines being in excess of £100m.

What could happen to an individual?

New culpability factors have been introduced for individuals. There are 4 different categories that the court will use while sentencing, ‘Very High’, ‘High’, ‘Medium’ and ‘Low’. If the individual’s offence comes under ‘Very High’ or ‘High’ it can result in them getting jail time of 2 years maximum. This is a very drastic change because jail sentences were previously only handed down in the most serious cases.

Legal Tips

Simon and Kizzy then went over some practical legal tips that could be useful when reducing the exposure to protection.

Before an incident occurs:
-Senior executive training to understand the importance of ‘setting the right tone at the top.
-Health and Safety legal review of H&S policy statement and roles and responsibilities document.
-Accident response protocol.
-Avoid aggravating features.
 
After an incident:
-Challenge inappropriate enforcement notices.
-Obtain legal privilege over incident investigation report.
-Support for HSE Interviews.

To promote Health and Safety in the workplace the IOD guidance says that leadership at the top need to be strong and active. Board members should be seen on site following all H&S measures themselves and addressing any breaches immediately. Appraisals for senior managers should include H&S, and to make sure that good H&S performance is celebrated in the work place.

H&S Legal Review of Documents

Policy Statement – remove common hostages to fortune
Roles and responsibilities document – remove common hostages to fortune
Accident response protocol – procedure to obtain legal privilege over incident investigation reports and to support employee interviews

Understand and Avoid Aggravating & Culpability Features:

-Failure to act upon previous warnings or advice from authorities
-Failure to heed relevant concerns of employees
-Failure to respond appropriately to “near misses”
-Cost-cutting at the expense of safety
-Deliberate, repeated or long-standing breach
-Injury to vulnerable persons

As you can see this is probably the most dramatic change in Health and Safety since 1974, with increased fines for organisations and lower thresholds for imprisonment for individuals. There is a much larger emphasis on Health and Safety.

If you would like to view the webinar go to http://view6.workcast.net/?pak=4530784573995855

Written by Sam Rose with help from Simon Joyston-Bechal

This webinar was presented by:

Simon Joyston-Bechal
sjb@turnstonelaw.com

Kizzy Augustin
kizzy.augustin@pinsentmasons.com