Update on new sentencing guidance on health and safety breaches
David Egan, Partner, DWF LLP
‘Be prepared!’ was David’s firm advice. New sentencing guidelines that came into effect from 1 February 2016 apply to the sentencing of organisations convicted of corporate manslaughter, health and safety, food safety, and hygiene offences.
About the new guidelines
David first described the 9 point procedure that aims to ensure a consistent, fair and proportionate approach to sentencing. Large organisations that offend can expect up to 7 figure fines though small businesses won’t suffer the higher fines due to their lower turnover. It is also considered likely that the number of prosecutions for health and safety offences will increase.
In addition to the prospect of larger fines, the new health and safety guidelines also raise the following wider commercial concerns:
- Reappraisal of risk registers and implications.
- Ensuring that risk assessments are conducted and reviewed on a regular basis.
- Greater focus upon issues of corporate governance.
- Continued need to ensure individuals are aware of their duties, both individually and as a key element of organisational compliance.
- Increased need for robust incident management procedures.
Preparation and prevention
‘Avoid it!’ was David’s next piece of advice.
Make sure that your risk assessments are suitable and sufficient:
- Get those members of staff that do the job involved in reviewing it.
- Consider what you can reasonably afford in order to avoid risk, ensure that everyone is trained and has the qualifications for the tasks that they perform.
- Make sure that your organisation has an incident management plan that shows the process to manage an incident, who does what and when, and that everyone understands it.
Where employees are identified as not adhering to health and safety procedures, disciplinary actions should be taken.
If an incident does occur
Understand that in the event of an incident, a health and safety inspector will be looking to see if your organisation did all that was practicable to avoid the risk. There are five issues that the inspector will look at:
1. Initial enforcement power
Could result in:
- An improvement notice – if the inspector considers that a person has contravened one or more statutory provisions or has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated. Or;
- A prohibition order – if the inspector is of the opinion that, any activities involve, as carried on or likely to be carried on by or under the control of the person in question, a risk of serious personal injury.
2. Powers of inspection
The Health & Safety at Work etc. Act 1974 states when and where an inspector may enter premises, with whom and what the inspector considers necessary for the purpose of any examination or investigation. This may include taking photographs, samples of articles or substances and even dismantling equipment where the inspector suspects it caused or could continue to cause a risk to health and safety. The inspector will also question anyone who may have relevant information or responsibilities and they may be asked to sign a“declaration of the truth” of his answers.
3. The shield of legal privilege
You should seek legal advice immediately. Be aware that Health & Safety at Work Act section 20 powers cannot compel the production of documents which are entitled to be withheld on grounds of legal professional privilege.
Legal advice privilege is not restricted to communications that actually contain legal advice. Legal advice privilege may extend to factual summaries and meeting minutes where they are created in a legal advice context and form part of a continuum of communications between lawyer and client.
4. Witness statements
- Voluntary statements must be signed by the person to confirm that the contents are true. It is rare that a witness statement isn’t provided on a voluntary basis.
- Compulsory statements – the HSE inspector has the power to require any person whom they have reasonable cause to believe will be able to, to provide information relevant to the examination or investigation. But, any answers given by a person
compelled to answer the inspector’s questions are not admissible against that person.
5. Interviews under caution
HSE can invite a company/individual to attend a formal interview under caution, often referred to as a Police and Criminal Evidence Act (PACE) interview. HSE must suspect a company/individual of committing a criminal offence in breach of the HSWA and/or related regulations. Answers given are capable of being admissible in a prosecution.
Various options are available to a company/individual in response and you should always have this in mind as the endgame of any investigation.
Remember that the highest level of aggravation is regarded as profit above safety – you’ll get the highest levels of fine!
David closed the breakout session by highlighting how, with 2,300 staff, his employers, DWF Law LLP, can offer clients solutions that enable them to excel.