New sentencing guidelines for Health and Safety
Published on 3rd November 2015, the Sentencing Council’s recommendations for health and safety offences finally came into force at the beginning of this month (feb 2016). As part of the government’s efforts to continue raising workplace health and safety standards, these new sentences are intended to offer a genuine disincentive to companies and individuals considering actions that may place employees and the public in danger.
This article is the first of two looking at the new guidelines, focusing on the new Corporate Manslaughter provisions.
Firstly, what is corporate manslaughter?
Corporate manslaughter charges are brought against businesses found to be responsible for causing the death of employee(s). Where an organisation can be shown to have made high-level decisions that have resulted in a death, they may be prosecuted in a criminal court.
So, what are the new punishments?
According to current legislation, corporate manslaughter can result in an unlimited fine. To help provide some context however, the Sentencing Council has laid out a wide range of potential fines, depending on the specific details of the case. Any organisation, regardless of size, will be fined at least £180,000, scaling up to £20 million depending on the company involved and circumstances of the death(s).
And how does the sentencing work?
All sentences begin with consideration of culpability. Where the death of a worker was foreseeable and the organisation took no steps to mitigate risks, they are likely to be sentenced according to a Category A offence, indicating a high degree of culpability. Where the organisation can demonstrate that the death occurred despite their best preventative efforts, they are likely to be sentenced in the Category B (lower culpability) range.
Fines are then levied according to the size of the company’s turnover (not profit), broken down into categories denoting large, medium, small and micro organisations. A large company (with a turnover of more than £50 million) committing a Category A offence can expect a fine of between £4.8 million and £20 million, while a micro organisation (with a turnover of less than £2 million) will be fined between £270,000 and £800,000.
Fines are designed to provide a punishment proportional to the financial weight of the business.
Factors you, and the court, need to consider
Every sentence handed down by a court has a starting point that is the basis for their considerations. A Category A offence for a micro organisation will be assessed from the starting point of £450,000.
The judge is then tasked with considering all of the mitigating factors to determine a fine appropriate for the specific incident. Where the business demonstrates some effort to mitigate risk, the fine may be reduced; where they show a flagrant disregard for the lives of their employees, the fine will be increased.
Playing a large part in these deliberations is how your business has handled health and safety provisions in the past. Have you been convicted of corporate manslaughter before? Do you have a track record of poor health and safety standards? Is there documented evidence of ‘near misses’ that have not been used to identify and improve standards?
If the court determines that opportunities to improve have been consistently missed, the severity of the fine will be increased.
Whether your business is facing corporate manslaughter charges or not, it is imperative that you carry out regular inspections to ensure that site safety standards are being upheld and routinely improved. Doing so could help to strengthen your case in the event that you do find yourself in the rare and unfortunate situation of having a workplace fatality.
For more help and advice about protecting your workforce and avoiding situations that may lead to a corporate manslaughter prosecution, please get in touch with us today.