Guidance to judges when prosecuting for health & safety breaches
Firstly, you may be asking what the new sentencing guidelines are. Well simply put, they came into force on the 1st February to provide guidance to magistrate and crown court judges for prosecuting individuals and businesses, for health and safety legislation breaches.
In the past there has been inconsistency and it was decided that the level of fine and prosecution of health and safety and food safety offences were much lower than those in other risky industries, such as the environmental and financial sectors.
The guidance uses a stepped approach for the judges to follow in order to gain a starting point for a fine, this is then reviewed and any aggravating and mitigating factors will help determine the final decision.
So how does it differ to before the guidance
The judges will take all the information into account of the incident or accident and prosecute according to the potential harm instead of the actual harm.
Can you give an example
Yes, Working at Height for instance, if someone falls off a step ladder and breaks their leg. Originally they would be fined based on the broken leg. Now we look at the potential – simply falling from a height can result in serious disablement, or even death, so the fine will be substantially higher.
Pretty scary then, is there any evidence of this?
A metal caster and fabricator has been fined £160,000 for work at height failings after an employee almost fell through a fragile roof.
‘Almost’ being the ulterior word here, apparently he slipped and his foot made a hole in the roof – he was working on as part of a maintenance team carrying out roof repairs at the time.
Upon sentencing, the judge placed the employer in a medium culpability category, harm category 2 and ultimately the likelihood of injury was said to be medium. The company had a turnover of £35m and therefore their starting point was £240,000 with a range of £100,000 to £600,000. They pleaded guilty which then resulted in the fine being set at £160,000.
How does this compare to before the guidelines were introduced?
Well the actual harm caused was very low, a little shock, possibly a stressed workforce but he did put his foot through an asbestos roof. So disregarding the asbestos aspect, no injury caused, I would hazard a guess at the fine being somewhere in the region of £10,000. A resulting case in August last year of a breach of the work at height regulations, where a worker actually fell through a fragile roof and suffered multiple injuries and a broken back, was fined £20,000.
Wow! A big difference then! What can we do?
Simply manage health and safety, ensure that you consult, train and communicate with your staff to ensure that all work is carried out safely. Have safe systems of work for hazardous jobs, risk assess hazardous tasks (Risk Assessment and Audit), review everything regularly and ensure that you follow your policies, as they depict your company’s rules and how you manage your health and safety. So these need to be communicated and understood.
Mitigation is going to be key when the judges decide and an emphasis on safe working practices are going to be scrutinised.
Remember no actual harm need to be caused, simply exposing someone to a risk is an offence! Contact our HR and health & safety experts at for guidance on any issue that may be affecting your organisation – we are here to help.
