The BBC news site recently published an article commenting on the large increase in Health & Safety fines paid out by UK companies last year.
This is due to the change in the Health & Safety Sentencing Guidelines which came into effect in February 2016 and aligned the fine to be paid with the company in question’s turnover.
|Company turnover||Fine starting||Fine range|
|£50 million and over||£4,000,000||£2,600,000 – £10,000,000|
|between £10 million and £50 million||£1,600,000||£1,000,000 – £4,000,000|
|between £2 million and £10 million||£450,000||£300,000 – £1,600,000|
|not more than £2 million||£250,000||£150,000 – £450,000|
Obviously the best way to avoid such penalties is to comply with legislation, but on those occasions where a breach occurs and a company is prosecuted, there are some important points to remember:
1) The guidelines apply to current sentencing, regardless of when the offence was committed (potentially the guilty party can face a much higher penalty for the same offence purely on the basis of when they were convicted).
2) The guidelines apply to individuals and organisations. For individuals there is a range of sentencing from fines to up to 2 years’ imprisonment. For companies the staring point for fines is based upon the company turnover (from last 3 years’ accounts). For a very large organization the fine is unlimited!
3) The penalty is based upon a calculation of culpability and harm:
4) The Court can also impose compensation orders and Ancillary Orders (including disqualification as a Director).
5) An offence by individual does not preclude offence by body corporate (and vice versa)
The Guidelines lists ranges for the sentences that accord with the extent of culpability and the degree of the harm. Culpability ranges from low, where the offender did not fall far short of complying, to very high, where it deliberately failed to comply with the law or flagrantly disregarded it. When considering the harm the courts must take account of the harm that was risked, and for how many people and for how long – the emphasis is not just on the harm that actually occurred.
As the determination of the penalty is based upon the level of culpability and the seriousness of risk/likelihood of harm it is clear that the implementation of an effective management system and controls, auditing and review will all go a long way to establishing the credibility of a defence of “reasonably practicable” i.e. all that could be done, within reason, has been done which should stop legal action in the first place, or serve to demonstrate that any offence was a rare occurrence and therefore limit any penalties.
At Capita, we routinely create and help to implement Health & Safety Management Systems for our clients and help them to maintain a safe working environment with all risks effectively managed. This is the best way to ensure your business is adequately protected against both dangerous incidents and the large fines that can accompany them.
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