Agriculture remains one of the riskiest industry sectors in terms of workplace health and safety. Work with livestock, dangerous machinery and frequent lone working combine to create a sector with a large variety of risk requiring management. Where there is a breach of health and safety law and prosecution is successful, the financial and personal stakes for agricultural businesses, directors and senior managers have never been higher.
There was a 49% rise in Scottish health and safety prosecutions during 2014/15. During the same period, there was a 2% rise in England & Wales. In contrast to this rise there has been a general downward trend in the annual number of workplace incidents over the past ten years (although the fatal accident statistics in agriculture appear broadly stable). So, if workplace incidents are decreasing, why the increase in prosecutions, particularly in Scotland?
A few years ago, the Crown Office and Procurator Fiscal Service– the body responsible for taking prosecution action on behalf of the Health and Safety Executive in Scotland – created a new Health and Safety Division housing prosecutors who are specialists in health and safety cases. Since its creation the number of prosecutions has increased. It is no coincidence that specialist teams deliver results. Defence law firms have had health and safety specialist lawyers representing clients for years, and Brodies’ experience in handling the defence of the cases suggests the trend for increased prosecution is here to stay.
Financial penalties are also on the rise. On 1 February 2016, the Sentencing Guidelines Council for England and Wales issued new guidelines on levels of fines for health and safety offences. A large company (turnover greater than £50 million) can now be fined up to £10 million for a health and safety offence and up to £20 million for a corporate manslaughter conviction. The guidelines set starting points for calculating fines, setting bands for companies depending on turnover. The Guidelines will be referred to by the Scottish Courts although they are not bound to follow them. We expect to see Scottish Guidelines in the near future emerging from the creation of our own Sentencing Council last year. In the meantime, recent fines show that the English Guidelines have had an immediate inflationary effect on Scottish sentences.
Imprisonment is also possible where there has been individual failing. In April, a Scottish director of a construction company was imprisoned for six years for gross negligence manslaughter following the death of an employee who fell through a skylight. The company was also fined £400,000 for a breach of the Health and Safety at Work Act and the Work at Height Regulations - the highest level possible for a company with a turnover of less than £2 million under the new Sentencing Guidelines. Another director, prosecuted for a breach of the Health and Safety at Work Act, was imprisoned for eight months.
So what does that mean for you and your business, and what should you do?
First and foremost, commit to health and safety at senior level in the business. Set a plan to deliver on health and safety and execute the plan rigorously. Review performance regularly and make adjustments as required. Implement an audit process to evidence what the business is doing and where improvements are required.