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Prison and higher fines aim to focus minds in the boardroom

14 December 2008

From January, health & safety violations at work can result in prison sentences and new higher fines. Poppy Williams, a solicitor from DLA Piper UK Llp specialising in defending health & safety and corporate manslaughter prosecutions, suggests companies take note.

The Health & Safety (Offences) Bill, quietly given the Royal Assent on 16 October and due to be enacted in January, will, for the first time, make a prison sentence an option for most health & safety offences.
In addition to making imprisonment an option in Magistrates’ Courts, and not juust in the Crown Court, the Bill will raise the maximum fine which can be imposed by Magistrates from £5,000 to £20,000 for most health & safety offences.
And if magistrates believe their powers are not sufficient to deal with an offence, they will now be able to send any case to the Crown Court.
The aim is to turn up the heat on breaches of health & safety at work.
Under health & safety law, any individual in the workplace – directors, management and  employees – can be found guilty of health & safety offences and they will all face the heavier fines and imprisonment of the new legislation. The maximum term of imprisonment is two years, and in the Crown Courtthere is no limit on the fine that can be imposed.
Given the focus on the acts and omissions of senior managers in prosecutions brought under the new Corporate Manslaughter & Corporate Homicide Act 2007, it is likely that prosecutions under the new Health & Safety (Offences) Act will result in more senior managers being sent to prison, particularly when public perception plays such an important role in high profile cases and multiple fatalities. In future, if individuals cannot be prosecuted for corporate manslaughter, they are likely to be prosecuted for breaches of health & safety and still end up in prison.
Worryingly, the new law reinforces what is called a “reverse burden of proof” for health & safety offences – ie the prosecution has to prove very little before the burden of proof switches to the defendant to show that he or she fulfilled their duty.
The Bill does not impose additional duties regarding health & safety at work, it simply deals with penalties for existing offences.
That said, with the stakes being considerably higher, businesses and individuals (particularly those in management) should be ever more concerned to ensure that they fulfil their health & safety obligations. This means ensuring that adequate and effective systems and procedures are in place and that they are being followed.
Individuals (again, particularly management) will want to make sure that their responsibilities with respect to health & safety are clarified and agreed with their employers so that they can be confident they can fulfil their individual duties.
This change of emphasis away from solely looking at corporate culpability to blaming and punishing individuals within a company is intended to shock managers, directors and employees into action on health & safety matters and move the issues further up the agenda.
If only for selfish reasons, you ought to be asking yourself if your company is being run safely and what is your role in ensuring that it is.

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