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Biggest Change to Health and Safety Since 1974?

Big changes to sentencing guidlines that you need to be aware of.

In 1974 The Health and Safety at Work etc. Act revolutionised the world of safety and this is still the most likely starting point for a health and safety prosecution.

However in this article I need to make all readers aware of a change which many of you may not have noticed during last year - and that is the new ‘sentencing guidelines’ for health and safety offences.

The new guidelines reflect the fact that it was previously widely felt that fines for health and safety offences were certainly too inconsistent (and probably too low as well).

The new guidelines provide the courts with a ‘9 stage’ process in which to ‘plug in’ the specific circumstances of each case being considered - and the courts have to follow this.

Phil Wass
Phil Wass is a Chartered Safety and Health practitioner and has a Masters Degree in Occupational Health and Safety. He is Managing Director of Wass Management Limited who specialise in all aspects of health and safety training, advice and guidance. Phil is an advisor to the Motor Vehicle Dismantlers' Association and understands the needs of the industry. He regularly carries out work for MVDA members.

If you have any health and safety issues, visit Wass Management Limited, email Phil or you can contact him on 01773 541441

This process will now consider wider issues such as culpability, the level of exposure to risk (regardless of the outcome on that occasion), the likelihood of harm, etc.

Breaches ‘causing’ serious injuries and death have until now been much more likely to be prosecuted than mere ‘exposure’ to risk. So, therefore the new rationale means that exposing someone to a high risk of death could now be viewed the same as an actual fatality.

It is not uncommon for companies to identify a safety problem and know they are non compliant but to not take appropriate and timely steps to remedy this. However in future if an incident occurs in the meantime then this could now be viewed as a ‘deliberate breach’.

Although the CBI and other similar organisations have stated that it feels it is wrong to do so, under the new guidelines the starting point in deciding the level of fine is likely to be ‘turnover’ (not profit).

Selected punishment will be ramped up by a series of factors as already stated. The risk consideration means that whereas previously an incident such as a crane collapse where someone’s toes were fractured would be sentenced much more leniently than one where a skull was fractured will no longer be the case. Then will come a consideration as to how many people were put at risk, whether actual harm was suffered, etc. with a gradual ramping up of the fine accordingly.

An early case after these changes were made saw a company fined £333,000 following a guilty plea resulting from a release of a dangerous substance with this being based mainly on the ‘potential’ for harm rather than any ‘actual’ harm caused.

It is therefore likely that we will start to see higher fines for significant offences (especially for bigger companies). Prison sentences will still be reserved for the very serious offences however a lowering of the imprisonment threshold may see many more directors, managers, supervisors, etc. receiving prison terms.

Companies found to have committed deliberate breaches, who have blatantly disregarded the law or even those that fall short of appropriate standards will find themselves subjected to the largest fines. In the light of these changes it is more important than ever for companies to ensure they have a robust health and safety management system in place which is properly invested in and is properly implemented.

This means ensuring that process and procedures are not just documents in a training file but are actually being followed. It has been estimated that at any moment in time around 30% of any workforce may misunderstand an element of their own job which could lead to errors and mistakes which could impact on health and safety.

Corporate manslaughter legislation is rarely used unless a death has occurred and here the sentencing guidelines council has stated that a fine should seldom be below £500,000. Meanwhile The Crown Prosecution Service has reported a 40% rise in charges of corporate manslaughter in recent years and this continues to rise.

It could be very difficult for someone to avoid a prison sentence if he / she was aware of a health and safety breach which then lead to a fatal event or an event with fatal potential. One legal expert has stated his interpretation of the new thresholds 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 starting point could be to impose a punishment of imprisonment ranging between 6 and 18 months’.

So it is likely that health and safety consultants could start terrifying companies with this information and indeed you may feel that this is where I am now going with all of this – BUT IT IS NOT!

I firmly believe that the best way to manage health and safety is internally not via external consultants. There is a great danger in completely ‘outsourcing’ this element of workplace management to someone who only calls in to see you once a quarter. This is not enough. By all means use an external consultant to raise and supplement competence in your own workforce but the day to day management of health and safety has got to rest within your own management structure. Also be very careful of filing those consultants audit reports without reading and actioning issues raised - how can you deny knowledge of a dangerous situation being present if printed or electronic evidence suggest that you were previously informed?

As always we are here for advice should anyone reading this article have concerns.

March 2017

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