One year after the health and safety guidelines were introduced, partner Andrew Litchfield sat down with John Southall at Southalls to discuss the changes that have been made and how businesses can prepare to be in line with the guidelines.
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John Southall: So, Andrew it's been just over 12 months now since the health and safety sentencing guidelines were introduced. What do you think are the main changes that we have noticed?
Andrew Litchfield: So I think two big changes, the larger of those is obviously the fact that we are now getting significantly higher sanctions and fines for breaching the Health and Safety At Work Act. Its routine now to see fines of more than £1,000,000 for non-fatal cases, for things which previously would have been dealt with in the Magistrates Court perhaps, so significantly higher sanctions from the Court. And then secondly the other thing that has happened is that individuals, company directors, senior people within organisations are being investigated and prosecuted far more than they ever used to be for individual offences.
John: I totally agree with that and certainly Mears next enforcement obviously the type of fines that the prosecutions I was involved in attracted way lower than what we are seeing now and I know that we have had more £1,000,000 fines in the last 12 months than we have ever had since 1974 so yeah this goes without saying.
Do you think to your mind that this has gone up in a linear fashion across all sizes of business?
Andrew: So the big factor in the size of the sentence is the turnover of the organisation that is being sentenced.
And what we are generally seeing is a greater proportional effect on medium sized organisations and perhaps smaller organisations, so medium is between £10,000,000 and £50,000,000 turnover. There, the proportionate effect on them is higher than on the very large organisations so £50,000,000 turnover plus, where the fines have perhaps not been as big as the guidelines would lead you to believe so far. I think they are going to creep up gradually over time but in the last year, while there have been some big ones, they are not perhaps as big as they might otherwise have been.
John: Do you think that's because, obviously the very large organisations the sentencing guidelines doesn't then have a guide. So a good example of that was the Merlin or the Alton Towers prosecution recently which I believe was £5,000,000. That's obviously, I believe, the highest fine we have had, do you think that is going to ratchet up over time as the Judges get more comfortable that somebody else has been fined £5,000,000 so therefore they feel they can go a bit higher or?
Andrew: I think it will be interesting to see how it works but the purpose of the sentence is to get a message home to shareholders and to the management of the business that you can't break health and safety legislation and it has got to hurt, that is the point of the sentence. So I think we will see larger fines for larger organisations. The Judges in the Courts I think will get more confident in knowing that those sentences are OK and the Court of Appeal won't be interested in changing them so I think probably it is only a matter of time before we get a health and safety fine of more than £10,000,000.
John: In terms of going forward then, what do you think businesses need to do or need to change or prepare for in light of these guidelines?
Andrew: So the idea of the sentencing guidelines is to make sentencing more transparent. The Judges have a series of steps that they have to follow in order to arrive at the ultimate sentence and, as we have mentioned, a big factor in that is the table of turnover.
So it is possible now for an organisation to see which category it falls into and work out for itself what a possible fine might look like and if you do that exercise, where I think that takes you is that it becomes far more obvious and far more logical to spend some more money now preventing an accident and reviewing your systems and procedures to stop it from happening. Because in the end that is likely to be far cheaper and it is also likely to prevent any reputational damage or other business cost. So I think because the sentence is so much bigger it is more logical to spend more time and more money up front preventing it from happening than has ever been the case before.
John: So Andrew, in summary, what do you feel the key takeaway points are then in terms of the health and safety sentencing guidelines?
Andrew: So I think firstly understand that the sentences and the sanctions that the Courts will give you for breach of health and safety legislation are now far more significant than they have ever been before. The fines are going to be material now to the business.
As a result of that, I think secondly it is very important to review the systems and procedures that you have got in place to identify risk and manage risk It is really important that they are relevant, that they are up to date, that they reflect current business practices. And then thirdly make sure that those systems and procedures are being operated on the ground, people understand them, that they are trained in them and that they follow them because prevention is going to be far less costly than trying to deal with something after it has gone wrong.
John: OK Andrew, thank you for your insight today, as always fantastic.