Since the introduction of the new Health and Safety Sentencing Guidelines in February 2016, penalties for health and safety offences have seismically increased, research from leading regulatory law firm BLM shows. The findings put organisational safety into sharp focus in light of recent further guidance from the Sentencing Council, which will see increases to prison sentences for individuals convicted of gross negligence manslaughter offences.
According to BLM’s Health & Safety Sentencing Tracker, an industry benchmark of penalties and offences, the ten largest stand-alone fines since 2016 have totalled £28.6 million. The greatest fines were handed down to companies in the construction & property, transport & logistics, food manufacturing, leisure & hospitality, chemicals and care industries; eight involved fatalities.
It builds upon research conducted by the firm in 2017 which found companies across the UK were forced to pay out over £61 million in health and safety fines in the first twelve months since the guidelines were in operation.
The 2016 guidelines introduced for health and safety, food hygiene and corporate manslaughter offences require the courts to consider culpability, the seriousness and likelihood of harm caused or posed together with turnover not profits of a business. This means that a business with a turnover in excess of £50 million can face fines of up to £10 million for offences, whilst corporate manslaughter charges can bring fines reaching £20 million.
In addition, the Sentencing Council recently announced new increased sentences for individuals convicted of gross negligence manslaughter, which will take effect from 1 November 2018. The most severe cases could see individuals facing up to 18 years in prison; current sentences for these types of cases rarely breach the ten year period.
Helen Devery, partner and head of BLM’s Health and Safety practice, commented on the developments: “These fines tell us that the battleground is over the determination of culpability and harm, which judges must consider in determining the range of fines. Though the guidelines promised greater consistency of sentencing, fine starting points and sentences have increased even for smaller and mid-sized businesses, as cases are increasingly classed within the high culpability range. The highest levels of culpability and harm can mean the difference of several millions in fines compared to a business found with low culpability and the lowest level of harm. Many of the categories determining culpability are preventable - such as allowing a risk to exist for a long time, which can be prevented by pro-active risk assessments and auditing.”
With gross negligence offences under scrutiny for their implications in health and safety cases, Devery continued: “In the case of workplace deaths, the reality is that the breach which has caused the accident has often persisted for a while; and under the new guidelines this would be a feature of a “high” level of culpability which could determine the length of sentences imposed for the directors, managers and individuals whose activities affect the health, safety and welfare of employees.
“Such penalties, including the large fines we have witnessed are a stark reminder to UK businesses that with even near misses subject to review and potentially prosecution, health and safety needs to be a board-level priority, to protect employees and prevent devastating fines.”