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Health and Safety just got tougher!

The 1st February 2016 brought into force the much anticipated Sentencing Guidelines for Health and Safety, Corporate Manslaughter and Food Safety and Hygiene offences.

 

For those who practice in this area, some will have already noticed an increase in the levels of fines for health and safety offences being handed down by the Courts in anticipation of these guidelines coming into force. It is an age old belief that the higher the penalty, the more likely the deterrent. As a result of these guidelines, fines will now consistently increase and spectacularly so, throughout the country.

 

Health and Safety

 

There are now formulaic categories of culpability and harm that will be used to determine the level of fine which will be assessed in conjunction with the size of an organisation. The bigger the organisation, the higher the price it will pay. Culpability will now be assessed in terms of levels starting from low i.e. minor through to very high i.e. deliberate. Harm will be assessed on the basis of the risk of harm posed through to the actual harm caused. The size of an organisation will be determined by its turnover as opposed to its actual profit. The categories range from Micro for a business with not more than £2 million turnover through to Large for businesses with a turnover of £50 million or more. Where the Defendant is an individual culpability and harm will be assessed in the same way however there will also be a matrix to determine a category range for punishment with a greater potential for custodial sentence. Even for low culpability offences, a 26 week prison term is a possibility.

 

Corporate manslaughter

 

For Corporate Manslaughter offences Culpability levels are assessed as either serious or more serious. The sentencing categories are eye watering, up to £20,000,000 for Large organisations.

 

Food safety and hygiene offences

 

The guidelines follow the same format for these offences however additionally, evidence of systems, procedures and remedial action will no longer be taken into account.

 

What does this mean…

 

Prosecutions are likely to take considerably longer to conclude and costs will increase. Duty holders may be ill advised to plead guilty at the earliest opportunity given the fines that are now at stake. More health and safety cases will run to trial. There would appear little incentive for a Company to concede its assessment of “harm” and “culpability” given the difference could be anything in excess of £1 million. In the event of a guilty plea more Newton Hearings will take place to establish the facts of a case and there will be greater use of experts in even the most simple of cases.

 

The new guidelines cannot fail to have a serious impact on the way in which organisations conduct their business activities. The financial implications of failing to take protective measures will be crippling. Greater scrutiny is now needed when renewing EL/PL insurance policies to ensure organisations/individuals are properly protected in the event of an incident. More than ever before duty holders will require their team of advisors not only to analyse the law but also to provide forensic advice to establish the correct turnover category and analysis of a Defendant’s finances. Clearly, early and controlled management of the regulatory process will be vital to steer any intervention away from the most serious categories listed.

 

For further information please contact Ashleigh Harold:- ashleigh.harold@mybusinesscounsel.com