The most dramatic change in Health & Safety enforcement since 1994

 

Simon Joyston-Bechal, a UK leading health and safety lawyer from Turnstone Law fills us in.

The Sentencing Council’s stated intention is to increase the level of fines for serious offences, particularly for larger companies; whilst reserving prison sentences for very serious offences.  In my view, the formulaic approach laid down in the new guidelines will greatly increase fines across the board and most dramatically for very large companies.  More worryingly, many more directors, managers and junior employees will be handed custodial sentences due to a significantly lower threshold for imprisonment.

The new sentencing guidelines apply to health and safety offences committed by organisations and individuals, as well as to corporate manslaughter and food safety/hygiene offences.  They introduce a structured nine step approach that the Court should follow, so as to calculate sentences.  This involves plugging culpability and harm factors into a series of tables to reach recommended starting point fines, as well as ranges of fines above and below the starting points.

The new regime has been carefully calculated and will certainly improve consistency across England and Wales.  It was published in draft for consultation in November 2014 and the final version published today is little changed from the draft, with the same figures and tables for fines as in the draft.  These will apply to sentences handed down from 1 February 2016, which make the guidelines retrospective in the sense that they apply to offences that have already been committed and have not yet come up for sentencing.

My observations on the new guidelines are as follows:

1) Easy to fall into the ‘very high’ culpability category
The first step of the process is to allocate a culpability factor, ranging from ‘very high’ to ‘low’, which in turn will drive the allocation of a recommended fine.  The ‘very high’ category is triggered if there has been a ‘deliberate breach of or flagrant disregard for the law’.  Although that sounds very serious, with hindsight it may be all too easy for breaches to fall into this category.

It is not uncommon for employers to identify a safety problem and know they are non-compliant; this becomes a ‘deliberate breach’ if they don’t remedy it.  If prosecuted, they may now all too easily find themselves at the sharpest end of the new regime.

The shift from outcome based sentencing to risk based sentencing
The main health & safety offences are based on exposing people to risk.  However, enforcement practice (as driven by public expectation) looks much more closely at outcome.  Breaches causing serious injuries and death have until now been much more likely to be prosecuted than mere exposure to risk; and the sentences have also been much heavier.

The Sentencing Council has adopted a new rationale, dictating that punishment should much more closely fit the level of exposure to risk.  So, exposing someone to a high risk of death should warrant almost the same sentence regardless of whether there is a fatality or merely an exposure to risk without any injury.

The consequence of this well intentioned change is to escalate offences that were previously dealt with moderately into the higher reaches of the new formulae.  Imagine, a loose railing is discovered on a busy walkway that could lead to somebody falling from a height of 10 feet.  The high risk of death or disability from someone falling can take this straight into the most serious harm category, even if nobody has fallen.

2) Designating likelihood of harm as ‘high’, ‘medium’ or ‘low’

One of the steps is to designate the likelihood of harm as being ‘high’, ‘medium’ or ‘low’.  That appears to be sensible.  However, it may give false reassurance as to the fairness and objectivity of the new system.  If 100 people walk along the unsafe walkway each day, risking a fall of 10 feet, is there a high, medium or low risk that someone will be killed or disabled?    The problem is that ‘high’, ‘medium’ and ‘low’ are prone to wildly different interpretations.  Suppose the experts agree that there was a 1 in 10 risk that someone would have been killed or disabled by falling from that walkway throughout the period of the breach.  Even with such a precise expert view, is that a high, medium or low likelihood?  The court would struggle to answer that question without understanding the wider circumstances, looking at culpability and what actually happened.  But those factors are intended to be excluded from this stage of the calculation to make the process rigorous and fair.

3) Extrapolation of fines for organisations whose turnover very greatly exceeds £50million

This issue will grab headlines in due course.  The guidelines, in combination with the Court of Appeal’s July 2015 judgement against Thames Water Utilities, pave the way for the very large companies to be fined in excess of £100 million for the most serious offences.  That is clearly the Court of Appeal’s intention.

4) Lower threshold for imprisonment

The culpability factor and harm category process is also used in order to produce a guideline starting point punishment for individuals.  At the more serious end of the scale, the court is driven to impose a custodial sentence.  So, where does the threshold for imprisonment now lie?

My interpretation of the new threshold is as follows:  if a director or employee knows there is a breach of the law that has at least a medium likelihood of causing death or disability, then the court is directed as a starting point to impose a punishment of one year’s imprisonment, with a range of between 6 and 18 months depending on other relevant factors.  Many will judge this to be fair if there has been a fatal accident.  But alarmingly, imprisonment will be the conclusion even if there has been no accident at all – just exposure to risk.

This is a very significant reduction in the threshold for imprisonment for health and safety offences.

In summary, the sentencing guidelines adopt a range of well-intentioned and apparently rational changes.  However, I am concerned the outcome will be very much more dramatic than intended, with much greater fines across the board and more individuals being imprisoned for offences that would not previously have been regarded as sufficiently serious to merit a custodial sentence.

It remains to be seen whether these changes will improve prevention and save lives, or drive hazardous industries abroad and bring public perceptions of over-zealous enforcement to new heights.

 

New construction guidance on occupational disease

New construction guidance to stop workers dying each week from occupational disease

The construction industry has launched new guidance to encourage better management of occupational health risks. HSE is urging the industry to put an end to the hundreds of construction workers that die of occupational diseases every month.

Inspectors issued more than 200 health related enforcement notices during the recent Health and Safety Executive’s (HSE) construction inspection initiative.

This highlighted the widespread misunderstanding of what ‘occupational health’ means in the construction sector and the employers’ misguided perception that health is more difficult to manage than safety.

The new guide ‘Occupational health risk management in construction’ has been written by the Construction Industry Advisory Committee (ConIAC) Health Risks Working Group and formatted with the assistance of the Institution of Occupational Safety and Health (IOSH).

It gives practical advice on what ‘health risk’ means for the construction industry, and the role of occupational health service provision in preventing or controlling those risks.

Ian Strudley, Chair of the ConIAC Health Risks Working Group and HSE Principal Specialist Inspector said: ““The misunderstanding of occupational health within the construction sector means that whilst the industry focus on managing the more familiar safety issues, serious health risks get ignored. We cannot let this continue.

“When figures show that construction workers are at least 100 times more likely to die from a disease caused or made worse by their work as they are from a fatal accident, the industry must take action.”

Shelley Frost, Executive Director – Policy at IOSH, said: “There have been huge advances in improving safety in the construction sector over the last 15 years but the industry has yet to generate such advances in improving the picture in occupational health.

“Every week, 100 people die from construction-related ill health in the UK. Less than half of construction workers also stay employed in the industry until they are 60.

“This new guide raises awareness of the occupational health issues in construction, demystifies how to best manage them and provides information as to where firms can get help and assistance.

“Ultimately, if the advice is followed, it could help to lower incidence rates of occupational ill-health and transform the perception of working in construction to that of an attractive and respectful industry with great career choices.”

With thanks to www.hse.gov.uk

Find the full article here.