Breathing new life into law
Today’s Altius and Howes Percival health and safety update in Leicester kicked off with an explanation of the new sentencing guidelines that can make businesses liable for accidents on their premises…
Phil Taylor, head of health and safety at Morrisons
The new guidelines changed the game. Accidents are going to happen, and certain accidents will require reporting and investigations. When this happens you will be scrutinised by the authorities. If you blatantly ignore laws and recommendations you deserve to get taken to task – but Morrisons believes it has a safe working environment and safe machinery and equipment, yet they cannot control the behaviour of individuals within the business. You can train then and give them advice – but people can behave unexpectedly, and with the best will in the world you cannot supervise everyone all the time.
Most of these actions come as a result of people thinking their way of doing things are better, quicker, more efficient etc. and they run the risk of straying from the health and safety guidelines of the business.
There used to be quite a battle to get things into a Magistrates court, but the government has decided to extend their powers. Local authorities and health and safety executives are under increasing financial pressures and these departments are shrinking. With dwindling resources there are political pressures to be seen to be doing a good job, to be effective. A good way to do this is to prosecute companies – they don’t benefit from the fines imposed, but the ripple effect creates publicity. When a breach is found, a fee for intervention can be charged, separately to any fines that are later imposed. It’s now about aggressive enforcement – there are quite incredible levels of enforcement, any inspection nowadays seems to be handled in an aggressive way to build a case against firms. It is getting increasingly difficult to deal with this.
A real life example: a couple of years ago they were prosecuted for a simple slip accident. A member of staff slipped, bruised her ribs, and was away for more than seven days and it became reportable. The authority in this area did not have a good working relationship with Morrison’s and they were fined £40,000. It was a second offence, they pleaded guilty early and the measures in place were effective remedial action – this sort of seemed fair at the time and the firm could handle the cost. These days Taylor expects the offence could cost them upwards of a quarter of a million. Enough to really sting the business.
How can businesses protect themselves? You need a robust health and safety management system, good risk assessments and so on. Things must be kept up to date and reflect changes in your organisational practice, develop your system as you go. Train all of your employees comprehensively; let them know what you expect of them. Give them the tools to do the job. If you can, prepare for the unexpected. Investigate all ‘near misses’ internally. Make sure you have good health and safety advice, whether that’s internally or outsourced – and make sure that it’s what your business needs. You don’t want generic off the shelf advice – you need someone that understands your business, but is not swayed by the organisation. If all goes wrong and you are put in this position, make sure you act straight away, and don’t put it off.
Alan Millband, partner, Howes Percival LLP
If you get the legal advice late, the lawyers make more money. Those organisations that approach legal advice at the outset end up paying less overall – being proactive is sound advice.
There is a marked change in health and safety. The ruling is applicable since 1 February 2016, irrespective of fate of offence, and applies to all organisations and offenders. It is basically because the fines have been too low for too long.
The rules are issued by the Sentencing Council, and the courts MUST consider it when reaching their decision. Every court must follow any sentencing guideline relevant to an offender’s case unless the court is satisfied that to do so would not be in the interests of justice.
The new guideline now gives ranges of fines rather than a precise figure, but it is closer to operating on a tariff system that it would have been traditionally.
This means there was more inconsistency in the past, with more focus on outcome that the risks run, meaning there was less call for financial information. The result was often a case of potluck, making it difficult for lawyers to know how to advise their clients. A lot of this did not punish or deter anybody. There is an element of it could be cheaper to offend…
Under the new regime, there is more structure, ranges and starting points. The court is led through a series of steps, lists categories with levels of seriousness for each offence, and then ranges of penalties for each level of seriousness. Each range has a starting point, which is not at the beginning but in the middle. Courts are then able to calculate where in the range the penalty should be, higher or lower than the starting point depending on the evidence of the offence.
Step one (for organisations): determining the offence category
This looks at culpability and harm and determines the offence category only by reference to culpability and harm factors in the table A case may have a number of factors for which there are different levels of culpability. These may need balancing. Offences relate to failure to manage risk – proof of actual harm is unnecessary – if the risk was that someone could have died, someone doesn’t need to have died for the business to be culpable for this.
Step two: Starting point and category range
Once offence category is determined, the court refers to tables to identify the range and a starting point for the fine. Tables vary according to the organisation’s size, with a focus on annual turnover, and adjusting for aggravating/mitigating features.
Initially they will look to the size of the organisation. Micro businesses are described as those with a turnover of less than £2m, a small business with between £2m-£10m, and medium businesses between £10m and £50m.
Step three: Is turnover based fine proportionate?
Finalising the fine – under the Criminal Justice Act 2003 section 164 the fine must reflect the seriousness of offence and finances of the offender. It should reflect the extent the offender fell below the required standard and fairly meet objectives of punishment, deterrence and removal of gain. It must have a real economic impact to show management and shareholders need to comply with law.
Step four: Consider other factors warranting adjustment
Consider the wider impact. Inside the organisation or on innocent parties, for example: fine impairs ability to make restitution to victims, whether it hits offender’s ability to improve conditions or effect on employment of staff, customers, and local economy.
Step five and six: reductions
Serious Organised Crime and Police Act 2005: a discounted sentence for assistance given to prosecutor or investigator
Criminal Justice Act 2003: reduction for guilty plea
Step seven: Ancillary orders and compensation
Remediation: as well as, or instead of, fine. If you haven’t put things right by the time it gets to the hearing then really you will most likely be given a time frame and forced to fix it. It really only requires what should have already been done.
Step eight and nine: Totality principle and reasons
Totality principle: where there is more than one offence, and consideration of whether the total sentence just and proportionate.
Then the court has to give reasons and explain the effect of the sentence.
Claire Leverton, solicitor, Howes Percival LLP
Claire Leverton explained the differences in the guide for organisations and individuals. Of course, an individual can be given a prison sentence, whereas an organisation cannot. This can effect employers, the self-employed and employees.
This element of the guide caters to individuals. It has a similar approach to that for organisations but there is a longer list of example mitigating features. It incudes up to two years of prison for the highest culpability.
It is possible for a director’s disqualification order to be imposed for up to 15 years, which can naturally have a huge impact on an individual’s career and livelihood.
Gary Plant, MD Altius – how can you protect yourself from these changes?
“All workers have a right to work in places where risks to their health and safety are properly controlled.” – HSE
You must have: policy in place, information available, training, risk assessment, proper equipment, control over substances, health and safety for both employees and clients.
Mostly, you need competent advice.
Suppliers and contractors – are they capable of carrying out the work you asked them to do safely and competently? Can they prove it? Can you? You need evidence that you carried out checks.