The Sentencing Council published its definitive guideline for the sentencing of health and safety, corporate manslaughter and food safety and hygiene offences last week to give courts in England and Wales comprehensive sentencing guidelines for the first time.
The aim of the guideline is to ensure some consistency in sentencing for health and safety offences. Historically, there have been many criticisms of small penalties for serious breaches and large penalties imposed on small operations for relatively minor breaches. The aim of the guideline is to make the penalties proportionate to the potential harm and severity of failures but it will also link fines to the turnover of the company involved. The new ‘tariff’ imposed by the guideline will be effective for all sentencing from 1 February 2016, regardless of when the offence was committed.
Philippa Luscombe, partner in the personal injury team at Penningtons Manches LLP, acts for many individuals who suffer accidents at work. She said: “Over the last few years we have seen an alarming number of basic health and safety failings by employers. While the Health & Safety Executive (HSE) does what it can to investigate and take action in serious incidents, it has been well known that the sentencing powers are wielded without structure and often provide wholly inadequate punishment and deterrent.
“This guideline has been long awaited and seem to convey a number of important messages:
- Consistency is key and companies should know what penalties to expect
- Non-compliance with regulatory requirements will attract significant penalties
- The nature of the failure and the harm or potential harm caused is a key factor in determining the penalty
- Punishment will be proportionate to the size of business and resources it has available
- The fines will be imposed at a level that has a real economic impact for those employers who do not take health and safety seriously and where injury occurs as a result.
“Structure and clarity are vital. The focus on the severity of potential harm and the fines being a proportionate and proper punishment will hopefully make employers think more carefully about health and safety legislation. It would be good to see insurers being more proactive in assessing their corporate policyholders and their approach to health and safety but the fact that these fines will hit companies and directors ‘in the pocket’ may be the only way to improve general employee safety in the UK. We watch with interest to see the headlines created by these new fines as, in cases of corporate manslaughter involving larger companies, they could be £20 million or more.”