On 3 November 2015, the Sentencing Council issued the definitive guideline in relation to the sentencing of health and safety and food safety and hygiene offences and corporate manslaughter.

The guideline will apply to any independent school sentenced on or after 1 February 2016, regardless of when the actual offence took place.

How does the guideline work?

For organisations convicted of health and safety or food safety and hygiene offences, the guideline adopts the following approach:

  1. Determine the category of offence based on the level of culpability and the harm or risk of harm created.
  2. Check the starting point and range of penalties set out in the table relevant to the size of the organisation. The guideline has separate tables setting out this information depending on the size of an organisation ranging from micro (turnover of less than £2 million) to large (turnover of over £50 million).
  3. Adjust the penalty up or down the suggested range set out in the relevant table depending on any factors which increase or reduce the seriousness of the offence or reflect mitigating circumstances.
  4. Check whether the proposed fine based on turnover is proportionate to the overall means.
  5. Consider any other factors that may warrant adjusting the fine.
  6. Consider whether any compensation or ancillary orders should be made.

The guideline adopts a similar approach for individuals prosecuted for health and safety and food safety offences and for corporate manslaughter.

Impact on independent schools

Where a charity, including an independent school, is involved, the court is directed to consider adjusting the fine downwards to take into account the effect of the fine on the organisation’s ability to deliver its services, and any correlated adverse effect on employees and service users. Independent schools may therefore benefit from a reduction in the fine at this stage.

However, the impact of this will very much depend on the circumstances and it is likely that where children are involved in an incident, there will be a perception of heightened culpability and seriousness. To give an example of how this can vary, the fine for a health and safety offence for a school categorised as small (ie with a turnover of between £2 million and £10 million) could be anywhere from £700 to £1.6 million depending on the culpability and level of harm.

The guideline stresses that any fine imposed must be sufficiently substantial to have a real economic impact, and it is expected that the guideline will lead to a widespread increase in fines. This underlines how important it is for independent schools to have in place robust health and safety and food safety and hygiene systems and, of course, to ensure that policies are indeed being followed.

Taking this approach to prevention not only reduces the level of risk of committing an offence in the first place, but it also provides evidence that can be used in mitigation to reduce the potential fine and reputational damage if an offence is committed.