Health & Safety pushed to the fore as UK Sentencing Guidelines start to bite

Recent large criminal fines against businesses convicted of health and safety breaches make it clear Health & Safety Sentencing Guidelines, introduced on 1 February 2016, are starting to bite. Even ignoring the £5 million fine handed down to the owners of Alton Towers for their ‘Smiler’ accident (a record for a non-fatal accident in the UK), more than a dozen businesses have received fines in excess of £1 million in 2016. Fines approaching £40 million have been issued to businesses as a result of health and safety prosecutions since the introduction of the new Guidelines.

Most appeals have been unsuccessful. In Scotland a recent appeal by Scottish Power following a serious accident in Scotland against a £1.75M fine was reduced to £1.2M on appeal, with the court acknowledging that the English guidelines could reasonably be used.

For all but the smallest companies, fines for health and safety and food hygiene offences are likely to be higher than they would previously have been, even where the outcomes are not fatal. In this article, we try to dispel some of the myths.

Surely accidents are most likely in the construction industry?

Yes and no – HSE accident statistics published in November 2016 show manufacturing is one of the highest risk industries in the UK after construction. It is one of the few sectors with a noticeable increase (+23%) in fatal injuries last year compared to the five year average against flat and falling trends in other sectors. Manufacturing businesses must remember health and safety obligations, and the risks of conducting their undertakings safely given the very different risk profile which offending now creates.

But it will never happen to us, we have safe systems in place

Neither hope nor luck stop incidents occurring, nor are large organisations necessarily safer that smaller ones.

Manufacturers must focus on managing the risk of their core business, which could pose a much higher risk than others based on;

  • what you are manufacturing,
  • the quality of the workforce,
  • the operating hours,
  • use of and interaction with contractors and the equipment used
  • how busy the business is and what pressures might be placed upon you to meet deadlines.

What is happening in the market?

The Guidelines have teeth but do not forget HSE and other stakeholders, including the police, coroners and environmental health are looking beyond the traditional reactive prosecution following an accident occurring. We are seeing the following trends (amongst others):

  • A sharp increase in the prosecution of directors and managers, not just to drive corporate pleas to offences
  • The HSE is increasingly willing to prosecute ‘risk based’ offences – accidents are merely tangible evidence of a failing, but the exposure to risk may be evident without any accident
  • The HSE has a stated aim to look beyond health and safety to issues such as welfare, including stress and workplace culture
  • As several businesses have found, most recently in the case of a Thames Valley aircraft manufacturer, the HSE will look far more carefully at the maintenance of and failure of equipment which they have manufactured, installed and serviced.; and
  • The conviction of individuals is more likely to result in a custodial sentence

How do we reduce the risk of becoming a statistic?

The HSE statistics show that the use of machinery, falls from height and workplace transport all remain major causes of serious accidents in the UK, often due to a failure to plan works properly or the removal of safety protections (e.g. guarding).

Brexit (in whatever format) won’t help. Britain has led the way in various types of regulation, including health and safety. The Bribery Act 2010 and Modern Slavery Act 2015 are recent examples of pure UK legislation, which was implemented without reference to the EU.

Senior management (and shareholders who hold them to account) shouldn’t rely on delegating duties to consultants, contractors or middle managers. There is no substitute for a culture which supports safe working, driven from the top echelons of management in every business, combined with properly implemented safety systems, up to date equipment and proportionate investment in the right internal and external experts.

Shoosmiths national regulatory team is in the top tier of firms advising on health and safety cases in the UK by leading directory, Chambers & Partners 2016/17. Phil Ryan is a partner in the Reading office, Charles Arrand a partner in Milton Keynes.