What is being described as the most dramatic change in health & safety enforcement since 1974 came into force at the start of this month (February).
The new guidelines apply to all health & safety case sentences, regardless of when the offence was committed. Fines for the largest organisations in the sector following a fatality could be tens of millions of pounds.
The new guidelines set out the methodology magistrates and judges will have to adopt when sentencing. They cover:
- The harm the offence caused, with multiple deaths being considered the most serious. When considering harm, the court is entitled to consider the potential for harm as well as actual harm.
- The culpability of the offender. Was their act or omission a mere oversight, a deliberate decision taken to save money or somewhere in the middle?
- The size of the offender, measured by reference to financial turnover. (In the construction sector – turnover can be a deeply misleading measure of the financial strength of a company and it is a concern that under the new guidelines turnover will be the starting point when considering the size of the offender.)
In the future, courts will be instructed to ensure that fines are sufficiently substantial to have real economic impact on the defendant. This is intended to remind shareholders and managers of the need to provide a safe working environment.
The guidelines will also apply to individuals prosecuted for health & safety offences. A consequence of the guidelines is that it will require very little fault on the part of an individual to result in a custodial sentence, which are currently rare.
Julia Evans, Chief Executive of BSRIA, says: “The UK has one of the best safety records globally. The unintended potential consequence of these guidelines could be that global organisations that suffer significant fines will decide that future global investment will be directed outside the UK where the sentencing regime is far less rigorous.
"All workers are entitled to a safe place of work but a balance must be struck: to ensure that the punishment following a conviction is both just and proportionate having regard to all of the circumstances. The message to BSRIA members and the wider industry is clear: re-double all efforts and checks to guarantee your operations are as safe as they can be. The consequences of failing to do so may well be severe."