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Health and Safety Fines
15 March 2016 in Comment

Potential for unlimited fines for H&S Offences

The revised guidelines issued by the Sentencing Council came into effect on 1st February 2016 and there are significant implications for large organisations that have an annual turnover in excess of £50 million. Whilst the guidelines do stipulate ranges and starting points for fines in relation to a range of offences, where an organisation “very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence.”

The guidelines set out the starting points of fines depending on the category of the offence. There are factors listed which impact upon and can increase the level of fine. These include:

  • Previous convictions (having regard to the nature and relevance of the previous offence and the time elapsed since conviction)
  • Cost cutting at the expense of safety
  • Deliberate concealing of illegal nature of activity
  • Breach of any court order
  • Obstruction of justice
  • Poor health & safety record
  • Falsification of documents or licences
  • Deliberate failure to obtain or comply with licences
  • Targeting vulnerable victims

A schedule of mitigating factors is also provided:

  • No previous convictions or no relevant / recent convictions
  • Evidence of steps taken voluntarily to remedy the problem
  • High level of co-operation with the investigation, beyond that which will always be expected
  • Good health and safety record
  • Effective health and safety procedures in place
  • Self-reporting co-operation and acceptance of responsibility

Health and safety offences relate to the creation of a risk of harm. They are concerned with the failure to manage risks to health and safety and “do not require proof that the offence caused any harm”. If you create a risk of harm occurring then you have committed an offence.

The breach of a duty between an employer and an employee considers the number of people put at risk; the greater the number of people, the greater the risk of harm. In addition to creating a potential risk of harm, courts also consider if a breach caused actual harm.

Just to focus the mind, the suggested range of fines for corporate manslaughter for large organisations is £3 million to £20 million depending upon the offence category. They can also involve custodial sentences of up to 2 years. Based upon an organisations size and its behaviour these limits can be increased.

In finalising sentences the court can increase fines if the organisation delivers high profits or adjust them downwards if the organisation operates with smaller profit margins. Savings made by avoidance can be added to the fines. The court may also impose a remedial order in addition to or instead of a fine.

When considering individual offenders custodial sentences can apply to all very high culpability offences and within a number of other bands. These range from community orders to 2 years in jail. Offenders can also be disqualified from being directors for up to 15 years depending upon the seriousness of the offence. The thresholds for food safety / hygiene offences appear to be set at approximately 75% of health & safety offences.

The following are 10 examples of the creation of a risk of harm which ASAP Comply has observed in recent years:

  1. Failing to carry out licensed asbestos remediation works to high risk Asbestos Containing Materials identified and prescribed by a competent person
  1. Allowing a workforce to continue working in an Asbestos contaminated area, with contaminated materials, producing a product being distributed to the public
  1. Failing to upgrade to a Refurbishment Demolition Survey for Asbestos when carrying out refurbishment and / or demolition works
  1. Allowing maintenance contractors to enter areas unaware that it had previously been reported as contaminated with Asbestos
  1. Failing to carry out and / or ignoring Category 1, 2 and 3 Electrical Repairs identified by a qualified, competent electrician within timescales prescribed
  1. Failing to carry out remediation works prescribed in Fire Risk Assessments, Legionella Risk Assessments and Equality / Disability Risk Assessments
  1. Continuing to employ contractors whose fraudulent reporting and records had contributed to a serious fire
  1. Failing to train staff as prescribed in risk assessments / failing to carry out fire training in-situ
  1. Failing to act on reports that Fire Alarms and Emergency Lights are defunct and cannot be tested
  1. Continuing to use electrical equipment which has been condemned

Each of these compliance issues are statutory requirements and as such there is a legal duty of care placed on the Employer. Failure to carry out these works could result in a very high level of culpability because this may well be seen as a “deliberate breach of or a flagrant disregard for the law”. There is a high level of culpability for “allowing breaches to subsist over a long period of time” and / or “failing to put in place measures that are recognised standards in the industry”.

The potential to cause harm in these circumstances ranges from contracting asbestosis with a 30 year gestation period to manslaughter by electrocution. In most cases we find responses to the findings of risk assessments are determined by budgets and not risk levels.

With the risk of unlimited fines and custodial sentences which increase based upon a companies size, profitability and track record in health and safety, perhaps the strategy towards remediation works and reducing the potential for harm needs re-thinking.

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