The Sentencing Council for England and Wales promotes greater consistency in sentencing, whilst maintaining the independence of the judiciary. The Council produces guidelines on sentencing for the judiciary and criminal justice professionals and aims to extend public understanding of sentencing. They need released guidelines to affect the breach of duty of the employer towards employees and non-employees and therefore the breach of duty of self-employed to others under the Health and Safety at Work Act 1974 (section 33(1) sections 2&3 and the breach of Health and Safety and Regulations under Health and Safety at Work Act 1974 (section 33(1)(c)).
Legal considerations
Breach of Health and Safety Regulations may be a criminal offence and may end in the corporate or private Director, or Manager or Senior Officer being prosecuted by the acceptable Health and Safety enforcement authority, and if found guilty being fined or imprisoned.
Increased Prison Sentences
New sentencing guidelines for health and safety, corporate manslaughter and food safety and hygiene offences came into force in February 2016. In 2018 new guidelines were issued which increased prison sentences for people convicted of gross negligence manslaughter within the workplace. This has been steadily reviewed annually and has had a dramatic impact on the extent of fines issued and custodial time given.
In 2018 guidelines were issued to judges to extend prison sentences for people convicted of gross negligence manslaughter during a workplace setting. The new guidelines were published by the Sentencing Council and mark the primary time that comprehensive directions are involved for the foremost serious and difficult cases of manslaughter. Under the rules anyone convicted of manslaughter by gross negligence could face a jail sentence of up to 18 years.
Increased Fine Amounts
For health and safety offences there has been a substantial increase in fine amounts for larger organisations, since the rule came into force, which was anticipated by the Council. Fines also appear to have increased (to a lesser degree) for smaller organisations, which wasn’t anticipated.
An increase in fine amounts was also evident for organisations sentenced for food safety and hygiene offences, although the rise in fines was less pronounced than that for health and safety offences.
There was an unanticipated increase in fines imposed on individuals sentenced for food safety and hygiene offences, however the rise was very small. Crown Court Health and Safety Cases Analysis of Crown Court judges’ sentencing remarks for a sample of health and safety cases (for both organisations and individuals) suggests that the rule is usually being applied within the manner intended.
A comparison of a sample of judgments for health and safety cases heard by the Court of Appeal (both before and after the rule came into force) suggests that fewer appeals are successful following the guideline’s introduction (although this finding is indicative only, thanks to the tiny sample analysed).
The Sentencing Council has considered this analysis, particularly the findings in reference to the fines imposed on smaller organisations and individuals. The Sentencing Council intends to research further the operation of the rule in due course and can consider at that stage whether any revision of the rule is important. Fines are now based on a company’s turnover with other factors taken into consideration like harm and culpability.
How have the fines changed?
- 1975 – Jan 2016 – 32x£1 million fines – average £1.8million
- Jan 2016-now – 41x£1 million fines 50/50 split on fatal v non-fatal
- 1975 – Jan 2016 – 189 custodial sentences
- Jan 2016-now – 30 custodial sentences
- Average conviction time increased to 4 years from Jan 2016
- 14x500k fines 2015/16
- 38x500k fines 2016/17
- 93% of HSE prosecutions resulted in conviction.
Recent Examples of Fines
- In April 2016, Merlin Attractions, the owner of Alton Towers, was fined £5 million plus £70,000 costs for the June 2015 Smiler rollercoaster incident. Five people were seriously injured. The incident resulted from Merlin’s failure to assess risk and management controls. The company’s culpability was assessed as high, and it had a previous conviction for failing to hold out a correct risk assessment.
- Tata Steel was fined £930,000 in August 2017 for the discharge of toxic substances. In June 2011, an outsized quantity of Benzole, a toxic and flammable substance, was released at Tata Steel’s site in Scunthorpe. the location may be a top tier Control of Major Accidents Hazards site resulting from the massive amounts of highly flammable and toxic chemicals stored on the location.
- Plymouth based West Design Products Ltd, has been fined after 22-year-old employee Charlotte Sargent had her fingers crushed, this resulted within the amputation of both her middle and index on her left . West Design Products Ltd of Bush Park, Plymouth pleaded guilty to breaching Section 2(1) of the Health & Safety at Work Act 1974, they need been fined £89,600 and ordered to pay costs of £5,584.28 plus a victim surcharge of £170.
- A concrete manufacturer has been sentenced for safety breaches following the death of an employee and high injuries to a second worker. Treanor Pujol Ltd of former Bison Works site, Pontefract Road Leeds pleaded guilty to breaching Section 2 (1) of the Health and Safety at Work Act 1974, breaching Regulation 11(1) of the supply and Use of labor Equipment Regulations 1998, and breaching Regulation 3(1)(a) of the Electricity at Work Regulations 1989 by failing to suits Regulation 6(c). the corporate has been fined £285,000 and ordered to pay costs of £56,324.97.
- Poundstretcher fined £1m after breaches to health and safety legislation at three of its stores in Newbury, Newhaven. The chain pleaded guilty to a complete of 24 counts of breaching the Health and Safety at Work Act 1974 following inspections by environmental health officers.
Health and Safety Compliance; what can you do?
Employers need to consider how best they can support their business, staff and customers from a Health and Safety perspective and do all they can to operate within the law and legislation that exists. Some good examples would be:
✓ Create a robust Health & Safety system
✓ Create a culture of Health & Safety
✓ All team members to be involved
✓ Lead from the top
✓ Have a qualified competent person
✓ Have a Fire Safety competent person
✓ Train staff in all areas of their role
✓ Train staff in all emergency procedures
✓ Undertake risk assessments
✓ Create safe systems of work
✓ Assess and store chemicals correctly.
Health and Safety Resources
The resources below are a great start and are directly from the Sentencing Council. They give a great insight into how the Sentencing Council operates and how they form a decision once a prosecution has been made. Download, keep and refer to these resources as they are a wealth of information.
- Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences, Definitive Guide
- Health and Safety Guideline Assessment
Further HSE Support
HR Solutions’ Health, Safety and Environment division, called HSE Solutions, provides you with access to a Competent Person to help de-risk your working environment from accidents. To find out more about how our HSE Solutions service can help your business, visit www.hrsolutions-uk.com/health-and-safety or call us on 0844 324 5840.
