The Guidelines bring about some notable changes for individuals. For example, once enforced, individuals could face situations where a custodial sentence is just the starting point for a penalty, even where no actual harm has been suffered.
The new Sentencing Council Guidelines for ‘Health and Safety offences, corporate manslaughter and food safety and hygiene offences’ (the Guidelines) will come into force on 1 February 2016. These will be applied to any case heard on or after this date, regardless of when the offence was committed.
There has been a lot of focus on the significant increase in fines for organisations that is likely to result from the Guidelines coming into force; but it is also worth noting their impact for individuals.
For individuals, the way in which the court is directed to determine culpability and harm will be similar to that used for organisations - a matrix will be used in order to determine both a starting point and a range for penalties to be imposed.
The major difference in this area is the significantly increased risk of custodial sentences being imposed upon individuals.
Individuals can be liable for Health and Safety offences under sections 7 and 37 of the Health and Safety at Work etc. Act 1974. Section 7 applies to employees generally and Section 37 applies specifically to directors, company secretaries and senior management “officers”.
Under the Guidelines culpability is split into four different categories:
- Very high.
Harm is also split into four categories, based on the seriousness of the harm risked and the likelihood of the harm arising. The level of harm is determined based on the risk of harm created, as opposed to the harm, if any, which was actually caused by the offence. If it can be argued that there was a risk of death, then harm category one or two are likely to be applicable.
For even the lowest category of culpability where harm category one is applicable, a maximum penalty of 26 weeks’ imprisonment remains available. Even more surprisingly the starting point for medium culpability is 26 weeks’ custody where harm category one applies. Consequently, there could be cases where a custodial sentence is the starting point for a penalty, even where no harm has been suffered and the offence was committed with no deliberate action or recklessness on the part of the defendant.
It is worth observing that prosecution of individuals usually only takes place for serious failings or where serious harm has resulted. However, the guidelines may represent a reduction in the threshold as they suggest imprisonment for neglectful individuals where no harm has actually been caused, and make clear that any risk of death or serious injury potentially warrants punitive action. It should also be borne in mind that a huge number of health and safety issues relate to hazards that pose a risk of death or serious injury, again potentially broadening the scope of enforcement action given that the assignment of a harm category where death is a potential risk is likely to be contingent only upon the likelihood of harm eventuating.
Although the Guidelines direct the court to consider whether any custodial sentence imposed could be suspended; a suspended sentence is still a formidable penalty and if any other offence which attracts a custodial sentence is committed within the relevant suspended period, both sentences will be served concurrently.
Directors’ and Officers’ Liability Insurance
In order to protect themselves against this increased risk of custodial sentences for Health and Safety offences, Directors’ and Officers’ Liability Insurance is now, in our view, of crucial importance for directors. It may be that this becomes a necessity rather than a luxury, as it becomes vital for directors to protect their own interests. In the event of a prosecution of both the company and individual directors for Health and Safety offences, it is likely that the interests of a company would clash with those of its directors.
As demand for such insurance policies increases and as the costs of defending cases continues to rise, it is highly probable that the insurance premiums will increase too.
To assist with leading and managing their company in relation to Health and Safety, directors may wish to refer to HSE guidance INDG417, ‘Leading health and safety at work’. This provides a useful guide on how directors can ensure they meet their legal obligations regarding health and safety laws. It is a joint publication with the Institute of Directors, and as such represents a definitive and industry sponsored statement of best practice.
- When the Guidelines come into force there will be an increased risk of custodial sentences being imposed on individuals, including directors.
- A custodial sentence could be imposed regardless of whether any harm has actually been caused or not.
- Directors’ and Officers’ Liability Insurance is likely to be of increasing importance for directors, in order to protect their interests.
- HSE guidance booklet INDG417 may assist directors in leading and managing their health and safety policies at work in a way which meets their legal obligations.