Punishments are not just fitting the crime but also the potential crime when it comes to health and safety. Additionally, the number of directors and managers prosecuted for breaches has more than doubled in recent years. And, in the last quarter of 2017 and Q1 last year, around one-in-ten prosecutions involved the personal prosecution of a director or senior manager.
This is not all. In 2014/15, the Health and Safety Executive pursued 606 prosecutions, resulting in fines of £16.5m. In April 2017, 21 prosecutions, that month alone, resulted in fines of £8.3m, despite some being as low as £2000. The average fine in 2014/15 was £25,000. In April 2017, it was £398,000. In May 2018, £375,000.
Why? Well, new HSE Sentencing Guidelines were introduced in February 2016, becoming the reference point for both Magistrate and Crown Court judges presiding over health and safety cases.
These guidelines now categorise health and safety breaches, allocating a suggested fine according to where the business sits within a matrix. Firstly, the defendant’s company turnover can be in one of four brackets. Within each, there are levels of fine according to the degree of culpability – ranging from low for minor isolated incidents, to very high – where the law has been deliberately breached or disregarded.
Then there are four further determinants of fine, based on the seriousness of the harm risked. Death is naturally in the highest bracket. But businesses should note boxes labelled high, medium and low “likelihood of harm”. In other words, a guilty verdict can be handed out, without actual injury or illness.
Once an apt level of fine is determined via the matrix, mitigating or aggravating circumstances are considered. Mitigation includes good cooperation with the investigation. Aggravation includes obstruction or deliberate incident concealment.
This can have a devastating financial impact. A £1.2m fine was imposed when an HCI burner exploded, resulting in a grazed knee for one worker and a minor caustic burn to another. A £1.9m fine punished a company when an agency worker suffered a friction burn whilst cleaning.
93% of HSE’s proceedings in 2016/17 resulted in guilty verdicts. What businesses often fail to recognise, however, is that a custodial sentence for a director, or other person with authority over health and safety, is also a possibility. Neglecting legal duties, or deliberately not addressing poor health and safety scenarios, could lead to imprisonment.
In this new health and safety sentencing climate, we can proactively assist a business, in various ways. We can put the right level of protection in place through relevant insurance cover for your liability requirements, but also through Directors & Officers insurance, to assist with a defence, should you be prosecuted.
Our active risk management options include a Regulatory Defensibility Review – much more than an audit – to examine how your business might perform during a regulatory investigation.
We can also provide access to a seminar-based Regulatory Mock Trial, highlighting how the judicial process works in health and safety cases, using real practising barristers and a jury. Another option is Accident/Incident Investigation Training, bespoke to your business and either focusing on a previous incident you have seen, or becoming a role play of a real-time incident at your work – a great dynamic to see how your staff might respond.
And then there is Contractor Management Training, designed to manage the significant risk that most contractors present for a business.
Health and Safety crimes are being punished with eye-watering levels of fine and prison sentences. Contact us without delay and get your house in order.
Willis Towers Watson, Regulatory Mock Trial, 23 November 2018
Willis Towers Watson, Health and Safety Sentencing Guidelines Update (Risk Insight)
Willis Towers Watson, Director Beware! (Health & Safety Governance Risk Insight)
Willis Towers Watson, Regulatory Services flyer, 2018 (quoting Health & Safety Executive Website)