Why you can’t afford to ignore the new Health and Safety sentencing guidelines

By our Commercial Lead, Duncan Davies.

New sentencing guidelines were issued in February for breaches of Health and Safety (H&S) regulations. It’s safe to say this didn’t make the front pages.

The new guidance was devised independently of the HSE (although the HSE provided input into the process), and comes in a couple of “easy-to-use grids” that allow you (in theory) to estimate your potential level of fine for a particular offence.  The idea is simplification and there’s a link to the new guidelines at the end of this post.

At a recent seminar at the Safety & Health Expo 2016 in London, roughly 50% of the audience raised their hand when asked whether they were aware of these changes.

If you’re in the 50% that don’t know, here’s a few thought-provoking questions:

  1. How many £1M+ fines have there been since the law changed in February 2016?
  2. What’s the longest prison sentence that’s been passed down in the last 6 months?
  3. Are you aware you can receive the same fine irrespective of anyone being injured, if there is shown to be culpability and a lack of H&S procedures?

Before we share the answers, it’s important to recognise that this new guidance is intended to send a blunt message to business: that Health & Safety is no more the preserve of the overly cautious, process-obsessed, budget-starved, H&S professional tucked away in a broom cupboard.

Health & Safety is now well and truly heading to the centre of the Board table. We’re now seeing the reality of directors themselves heading to prison, and fines being imposed that are ‘meaningful’ where previously they might have been a mere ‘slap on the wrist’.

Some argue that the new guidelines are mostly designed to increase a source of income from large companies, who now face the largest consequences of these new guidelines. A more public-spirited person might say they are intended to make the workplace safer for more people.

A key aspect that’s changed is that there’s now a focus not only on harm done, but also the harm risked. In theory this makes a lot of sense. If two companies commit the same ‘sin’, both should be liable, even if only one of them is ‘lucky enough’ not to actually hurt someone.  In reality it’s going to be a painful process to prove what could have happened, but didn’t.

All of this means giving renewed focus on employee engagement and to those projects that build a safety culture; more than ever, businesses will need to rely on employees, subcontractors, suppliers, and partners to create that culture. It means that vigilance and capturing near miss information is more important than ever. And it means that Health & Safety professionals are going to have to give their boards more data and more tools to help them manage this business risk.

And the results to date of these changes? Well a quick poll of publicised cases since February 2016 reveals 10 cases with total fines of £13M, with one case seeing a company director sent to prison for six years.

A recent report from IOSH highlighted that in the period February to August 2016 there have been as many £1M+ penalties as there were in the previous two decades.

It remains to be seen how recent high profile cases, such as Alton Towers and Foodles Production, will be prosecuted. What seems certain is that this new blunt instrument is going to be used to grab the attention of all those people who’ve not yet recognised that the H&S landscape has fundamentally changed.

For more information on the guidelines, see pages 4 and 5 of: www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf






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