What are the 2016 Guidelines?

The Health and Safety at Work etc. Act 1974 (HSWA) imposes a number of duties on dutyholders (usually employers or owners of an organisation or those in control of premises) and sets out the general duties owed to employees and non-employees (including members of the public, volunteers and visitors) to protect them from risks to their health and safety arising out of, or in connection with, their work activities. HSWA applies where an organisation has at least one employee.

The Guidelines were introduced in February 2016 to provide some uniformity and guidance to judges when sentencing organisations and individuals convicted for health and safety offences. Since their introduction the likely fines imposed following a conviction at court (with the prospect of an unlimited fine) have risen to around £1 million (normally reserved for large organisations carrying a turnover of £50 million or more) for a breach deemed to have posed a serious risk of harm to relevant persons. It is therefore pertinent that organisations understand the implications of being involved in a health and safety incident, which may result in an investigation being carried out by an enforcing authority and/or a subsequent prosecution of the organisation and/or its individuals.

What is the impact of these guidelines on organisations?

Most organisations can be prosecuted and fined an unlimited amount for health and safety failings, but so can individual directors, senior managers and employees of organisations that have failed to fulfil their health and safety obligations. These individuals can face investigation and/or prosecution in their individual capacity where they may face unlimited fines, up to two years imprisonment and for directors, up to 15 years disqualification.

If a health and safety incident results in a fatality due to senior management failings in the organisation and/or management of the organisation's activities, prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007 may result in multi-million pound fines for the organisation. Any individuals that are subsequently convicted of manslaughter by gross negligence may also face unlimited fines and a maximum term of life imprisonment.

Although many large organisations are finding themselves facing million pound fines for health and safety breaches, the Guidelines have introduced just as much fear for small and medium sized organisations, as the impact of the fines on companies of their size is worse than that felt by many large and extra large organisations. Even if they plead guilty and obtain credit for their guilty plea, they may still have to pay a fine where the starting point is £250,000 and above. This is still significant enough to put a small or medium sized organisation out of business. Although judges are entitled to look at the overall financial position of the organisation, (including pre-tax profits, assets and directors' remuneration) a six figure fine is some way away from the maximum £20,000 fines that were imposed in the Magistrates' Courts before the Guidelines were in force.

An organisation can be prosecuted even if no actual injury has been caused. Decisions to investigate or prosecute are based on the 'seriousness of harm risked', not the actual harm caused.

What are organisations required to do to fulfil their health and safety obligations?

But the duty is not limited to employers. Anyone who is responsible for non-domestic premises where anyone visits or uses the premises must take reasonable steps to ensure there is no risk to health and safety.

The day to day management of health and safety should be incorporated in the organisation's health and safety policy and should be based on undertaking risk assessments of all potential hazards within the organisation.

Even when setting up new businesses, organisations are required to have robust health and safety policies and procedures and to perform a dynamic risk assessment in respect of its operations. This could include the purchase of second hand equipment and the employment of competent staff. Therefore, a full 'due diligence' exercise should be undertaken in respect of the purchase, merger or acquisition of a business. This will assess the existing health and safety policies, pre-purchase breaches of health and safety law, and the purchase of second hand equipment (is it in good condition/‘buyer beware’ issues).

What type of issues should organisations be concerned about from a health and safety perspective?

Organisations are understandably worried about the risk of prosecution in respect of potential breaches of HSWA, and in light of the recent  tragedy, potential breaches of fire safety as well as other associated regulations.

Common issues for consideration include:

  • appealing enforcement notices or fees for intervention ('FFI') notices imposed by the Health and Safety Executive (HSE)/local authority/Environment Agency for a general failure to manage risks on the premises or site and failure to properly monitor and supervise the activities of employees and non-employees, as necessary
  • corporate manslaughter investigations by the police resulting from the death of an employee or non-employee and any corresponding inquest proceedings arising from fatal incidents involving an alleged failure to manage risks at work
  • fire safety investigations in relation to ongoing safety investigations by the fire authority - failure to implement suitable fire safety precautions within and outside the premises
  • lack of suitable and sufficient risk assessments in respect of the safety of the employers premises and/or the health and safety of its employees and non-employees refurbishment of premises
  • criticism of employee or contractor selection processes including competency issues
  •  reporting of serious injuries, near misses and illnesses caused by, or at work to staff, service users, contractors, visitors or members of the public and the consequences for not doing so
  • the production, supply or sale of food and the duty of care to ensure that the food is safe (compliance with Food Hygiene (England) Regulations 2006 and having good food safety management processes in place)
  • transport issues including vehicle/driver/operator licensing issues, roadworthiness of work vehicles and driving to and from place of work, falsification of vehicle documentation/tachographs
  • stress and mental health issues including occupational health related stress, bullying and harassment, drug and alcohol policies and how these may have caused or contributed to the cause of the injury sustained

There are huge fines and potential terms of imprisonment as a result of a health and safety conviction, as well as the resulting reputational damage. It is clearly important for organisations to understand the sentencing framework for health and safety offences (including levels of culpability and seriousness of harm risked). It is also important to obtain early strategic advice in the event of an incident in order to limit the level of fine that could be imposed following a conviction.

Organisations that adopt a preventative approach and regularly review their existing policies and practices are less likely to find themselves being prosecuted in the first place.