BSIF warns Sentencing guidelines could hit business
Alan Murray, CEO of the British Safety Industry Federation (BSIF), reflects on the new health and safety sentencing guidelines and how these may affect UK businesses.
The new sentencing guidelines for health and safety offences were published at the beginning of November and are applicable from the 1 February 2016. The new sentencing process will apply from that date even if the offences were committed before then. In essence, the guidelines create a new matrix into which the details of the offence, the circumstances and turnover of the offender are plotted. This process then dictates the punishment.
Offending companies will be placed in one of four bands depending on turnover:
- micro (with a turnover of up to £2m)
- small (a turnover of between £2m and £10m);
- medium (up to £50m)
- large (more than £50m).
From 1 February 2016, fines could exceed £10m for serious health and safety breaches or £20m in corporate manslaughter cases, and even more for very large companies.
The previous starting threshold recommended for all corporate manslaughter convictions was £500,000, but under the new guidelines, a category A (high culpability) offence committed by a large organisation would start at £7.5m with a category range of between £4.8-£20m. A medium-sized company convicted of the more serious of two severity levels of Corporate Manslaughter Act breaches can expect a fine of between £1.8m and £7.5m, with a benchmark of £3m. For small organisations, a Category A offence would start at £800,000 with a category range of between £540,000-£2.8m. For micro-organisations the starting point for a fine after a high culpability corporate manslaughter offence will be £450,000, which is below the £500,000 suggested in the current guideline. 
The BSIF supports both the consistency that this approach will deliver and the fundamental proposition that neglecting occupational safety and health will result in increased punishment levels.
However, one concern that the BSIF would like to raise is the potential for trials to take even longer to progress as the significant raising of fines and the evidencing of applicable turnover levels will take time in a process that is, we believe, already taking too long.
Often the results of a prosecution are a long time after the incident has taken place. This can reduce the public impact as it appears to be a situation that occurred years ago with the assumption that things would surely have changed since then.
Apart from the linking of fines directly to the level of the turnover of a business which is found guilty, the most significant change to be aware of is where previously a sentence has reflected the outcome of an offence, that is the resulting injury; from 1 February the fact of the “exposure” to the risk will be clearly reflected in a sentence whether an injury has actually occurred or not. Take for example, an employee falls off a ladder and breaks an ankle – the new sentencing guidelines could recognise this as a risk of death situation rather than consider it just on the result i.e. the broken ankle.
In summary, the new sentencing guidelines have the potential to prove very costly to business when you consider annually over 600,000 workers are injured in workplace accidents.
As a consequence, businesses will now be further motivated to ensure their risk assessments are complete, their safety and health programmes are fit for purpose and this can only be a good thing.
Sentencing Council guidelines: https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf