New Sentencing Guidelines for Health and Safety offences
The sentencing council has recently brought about new sentencing guidelines which will revolutionise punishment for complacency and all offences within the construction industry. These new guidelines have been the most dramatic change in health and safety enforcement since 1974, with fines being much more severe.
According to the council, the intention behind these new guidelines is to increase the penalty for serious offences, with the possibility of a prison sentence now being a threat. This is aimed at larger companies where more people are involved in the process to stop complacency at every level of the company. However, on a more worrying note, it means that employees on every level from director to junior could end up with a custodial sentence.
The first step in penalising a company is to allocate a culpability factor. In other words, it is first determined who is responsible for the fault and just how much blame falls to them. In turn, this will indicate what the level of penalty will be.
There are categories ranging from low to very high and this largely depends on if the fault was a deliberate act or not. The very high category is only triggered if there was a ‘deliberate breach of or flagrant disregard for the law’. This is the category that carries the possibility of a jail sentence. However, it might be easier than you think to trigger this category. If a safety problem is identified regardless of whether you are compliant or not, it becomes a deliberate breach if it is not rectified. This could end up with harsh prosecution as a result of the new guidelines.
The shift from outcome based sentencing to risk based sentencing
The most common health and safety offences revolve around allowing people to expose themselves to risk. However, enforcement practice now looks closer at the outcome. In the past, breaches causing serious injuries and death were always much more likely to be prosecuted compared to mere exposure to risk and it carried a much higher sentence.
The sentencing council has changed its standing on this and individuals and companies can now be penalised for simply allowing exposure to risk. This means that by exposing someone to the risk of death or serious injury, they will be penalised to the same level as if the accident actually occurred.
Designating likelihood of harm as ‘high’, ‘medium’ or ‘low’
The second step in punishing a company is designating the likelihood of harm. The categories for this are either low, medium or high. Even though this seems straight forward, it may give false reassurance as to the fairness and objectivity of the new system. If 100 people walk along the unsafe walkway each day, risking a fall of 10 feet, is there a high, medium or low risk that someone will be killed or disabled? The problem is that ‘high’, ‘medium’ and ‘low’ are prone to wildly different interpretations.
Suppose the experts agree that there was a 1 in 10 risk that someone would have been killed or disabled by falling from that walkway throughout the period of the breach. Even with such a precise expert view, is that a high, medium or low likelihood? The court would struggle to answer that question without understanding the wider circumstances, looking at culpability and what actually happened. But those factors are intended to be excluded from this stage of the calculation to make the process rigorous and fair.
Extrapolation of fines for organisations whose turnover very greatly exceeds £50 million
This new guideline allows companies with a very large turnover to be fined in excess of £100 million for the most serious offences to stop larger companies avoiding harsh penalties
Lower threshold for imprisonment
The culpability factor and harm category process is also used in order to create a guideline to punish individuals. At the more serious end of the scale, the court is driven to impose a custodial sentence. So, where does the threshold for imprisonment now lie?
My interpretation of the new threshold is as follows: if a director or employee knows there is a breach of the law that has at least a medium likelihood of causing death or disability, then the court is directed as a starting point to impose a punishment of one year’s imprisonment, with a range of between 6 and 18 months depending on other relevant factors. Many will judge this to be fair if there has been a fatal accident. But alarmingly, imprisonment will be the conclusion even if there has been no accident at all – just exposure to risk.
This is a very significant reduction in the threshold for imprisonment for health and safety offences.
In summary, the sentencing guidelines adopt a range of well-intentioned and apparently rational changes. However, I am concerned the outcome will be very much more dramatic than intended, with much greater fines across the board and more individuals being imprisoned for offences that would not previously have been regarded as sufficiently serious to merit a custodial sentence.