The number of Health & Safety Fines of £1 million and above have increased six- fold and the number of directors and senior managers prosecuted has trebled since the introduction of the new sentencing guidelines in 2016.
According to a report by HSE, the average fine per offence has increased by 102%, with 116 fines in the past year being at a minimum of £100,000. The courts appear not to be holding back: there were five fines between December 2016 and January 2017 that were over £5m. The criteria for sentencing has a large part to play in this, since courts now have access to ‘starting point’ fines that are based on how large an organisation is and their turnover.
|Turnover||Fine Starting Point||Range|
|< £2m ||£250,000||£150,000 – £450,000|
|£2m – £10m||£450,000||£300,000 – £1,600,000|
|£10 – £50m||£1,600,000||£1,000,000 – £4,000,000|
|>£50m||£4,000,000||£2,600,000 – £10,000,000|
It’s been over a year since the introduction of the Definitive Sentencing Guideline in Health and Safety (and other) cases. During that time health and safety offenders from all sectors have experienced its impact first-hand. Every week, the Health and Safety Executive sends out its e-Bulletins in which, amongst other things, it publishes details of cases in which health and safety offenders have been sentenced. Some sectors are pretty much ever-present in the weekly lists of offenders, but no sector escapes reference for very long.
According to most recent statistics, over the 12 months to 2016 there were for example 1,920 non-fatal work related accidents for every 100,000 workers across all industrial sectors. Of much concern is that in at least 30% of the sectors listed, the number of non-fatal work related accidents had increased since the preceding period. Having said that, as the Definitive Sentencing Guideline makes clear, whether any actual harm results from a health and safety offence is not the most important consideration. The key drivers are the offenders’ culpability, turnover and the harm that was risked by non-compliance. To put it simply, no-one may have suffered any harm because of the offending, but if they could have been harmed the offender will be sentenced according to the harm that could have been suffered.
Agriculture, forestry and fishing; construction; transport and storage; manufacturing; wholesale and retail; and accommodation and food services – all these sectors had more non-fatal work related accidents than in the period covered by the previous statistics. Having said that, the other sectors cannot afford to be complacent – there are still far too many contraventions and still too many organisations feeling what is the blunt force trauma of the new sentencing regime.
Shortly before the Sentencing Guideline was introduced (in February 2016) commentators forecast that fines would increase, but even they would be surprised at the size of the increases. It’s easy to say, of course, that to avoid the large fines under the Sentencing Guideline all an organisation must do is comply with all its duties under health and safety law – easily said, yes, but not so easily done, especially given the extent of the interaction between everyone and everything in the modern-day workplace.
We said before the Sentencing Guideline was introduced that organisations had to ensure they had competent, expert health and safety advice. After 12 months living with the Guideline we weren’t wrong – if anything, we were guilty of understatement.
It has never been more pertinent that businesses of all sizes undertake an independent review of their health & safety systems to ensure they are protected from hefty fines and prosecutions.
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