More than 2.5 years have passed since the introduction of the sentencing guidelines for health and safety offences. At IOSH 2018, the UK’s leading conference in workplace safety, health and wellbeing, Kizzy Augustin, a partner at Russell Cooke LLP, will review some recent cases and assess the impact on business. Ahead of the conference, we asked her some questions about the guidelines:
What impact have the guidelines had on large and small companies?
The sentencing guidelines have had a significant impact on large and small companies alike. Large companies (those with a turnover in excess of £50m) are routinely facing £1m fines for straightforward health and safety breaches, while small to medium-sized companies are facing six-figure fines.
The problem is that small to medium-sized companies will feel the hit of a huge fine due to having a smaller turnover, less resources and less ability to pay it. Even though larger companies and groups of companies will receive larger fines for equivalent offences, their size makes them more able to handle a significant financial penalty.
Small and medium-sized companies are finding that the impact of a significant fine and legal costs, as well as the huge strain on staff and senior management time in dealing with criminal proceedings, is placing the future of their businesses in jeopardy – often putting defendant companies out of business.
Do the guidelines mean there will be more health and safety prosecutions?
Not necessarily. The guidelines have certainly given enforcing authorities (and judges) more to consider in terms of the relevance of the level of culpability and the seriousness of harm risked as two factors to assist with their prosecution, but any decision to prosecute should be made on the basis of whether there is enough evidence to provide a realistic prospect of conviction and whether it is in the public interest to prosecute.
In my experience, the majority of corporate defendants that are convicted of health and safety breaches will find themselves in the high categories for culpability and seriousness of harm risked (Level A, Harm Category 1 or 2). It often doesn’t take much for a prosecutor to convince a court that the breaches are significantly serious to be placed in the high categories – particularly now that the guidelines focus on the risk of harm, rather than actual harm.
It will then be for the defendant to mitigate in terms of reducing the level of culpability and the likelihood of the harm occurring, as well as any general mitigation that they wish to rely upon.
Do individuals need to worry about increased penalties?
Absolutely! The guidelines have provided increased potential sentences for individuals, just in the same way that they have for organisations. A large majority of the sentencing options available to the courts for individuals involve the impositions of custodial sentences for a period of 26 weeks to two years. These sentences are often reserved for those senior managers and directors who are convicted of breaches of the Health and Safety at Work etc Act 1974 or one of the associated regulations.
What advice would you give to businesses on avoiding prosecution?
- Avoid committing health and safety breaches in the first place! Prioritise compliance with health and safety legislation.
- Ensure that organisations have robust health and safety policies and practices in place.
- Proactive health and safety leadership at the top, i.e. directors and senior managers leading by example
- Encourage good health and safety practice among the workforce.
- Seek independent regulatory and health and safety advice from specialist health and safety lawyers and industry consultants to help maintain a strong OSH culture and good safety management systems.
Hear from Kizzy and other speakers at IOSH 2018. Book your place here. Use discount code IOSHMT10% when booking to receive a 10% discount.
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