Health & Safety Sentencing Guidelines 2016 Update
In November 2015, updated sentencing guidelines were published. They will apply to sentences handed down from 1st February 2016 but can apply retrospectively to offences that have already been committed. The updated guidelines are for any health & safety offences committed by an organisation or an individual as well as corporate manslaughter and food safety / hygiene offences.
The guidelines aim to bring more consistency to sentencing across England and Wales and provide a matrix for levels of fines that offences can be put into. The fines are also scalable dependent on the size of an organisation, with larger companies being in a higher threshold for potential fines, which is based on their turnover.
Some of the other key changes that are being implemented are that there will need to be an allocation of culpability, which ranges from low to very high. This level of culpability takes into account various aspects that have led to an exposure of risk as well as things such as the culture within an organisation. Whilst “very high” culpability may sound like an extreme breach, there is the possibility that something such as ignoring an action from a risk assessment, could be regarded as a flagrant breach of safety – which could be interpreted that an organisation or individual is classified as having a very high level of culpability, which could put an organisation or individual in the highest threshold for sentencing and fines.
The new guidelines also apply a risk based sentencing, which is now based upon exposure of persons to risk or harm, rather than if there has been actual harm. Previously companies and individuals were subject to greater penalties if someone had been killed, however now that the exposure to harm is equal to that of actual harm there could be fines for breaches that may not have previously been subject to prosecutions. Company Directors could also become exposed to prosecution if they become aware of a breach of health & safety requirements. If it is determined that the breach is classified as at least a medium risk, then they personally could be subject to a custodial sentence.
As the new guidelines will involve some assessment of the exposure to risk, it could be argued that the different thresholds are still open to interpretation.
The sentencing guidelines appear to be put together to achieve more consistency in penalties for breaches in health & safety requirements. They are also be scaled so that larger organisations who have the resources to invest in safety are more heavily penalised. There are some concerns though regarding certain aspects of the guidelines, where parties can be handed out custodial sentences for exposing persons to risk, even if nothing has occurred. It remains to be seen whether these changes will improve prevention, or drive hazardous industries abroad and bring public perceptions of over-zealous enforcement to new heights.
The S2 Partnership is expert in assisting organisations in meeting legal health and safety requirements through developing and implementing practical and simple health and safety management systems and offering first-class risk management support. If you have concerns about compliance, our specialist teams can provide you the level of support you need to ensure safety and peace of mind – contact us for more information.
Sentencing Council guidelines: https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf