Penalties for breaching health and safety law
There seems to be a belief in many quarters that breaches of health & safety will be treated leniently by the Courts, and that offenders will get nothing more than a severe “ticking off” and a nominal fine.
In reality nothing could be further from the truth, and it might be helpful to outline the main legislation available to the Courts when dealing with a breach of health & safety.
Health & Safety Offences Act 2008
The Health & Safety Offences Act 2008 (HSOA) came into force in 2009 and radically changed the face of health & safety law by seriously ramping up the penalties available to the Courts.
Previously the Magistrates’ Court could impose a fine of £5,000 per breach (and the HSE often prosecutes for more than one breach at a time) but the HSOA increased that limit, for most offences, to £20,000 per breach.
Should the case be referred to the Crown Court then the Judge has the power to impose an unlimited fine and a custodial sentence of up to two years’ imprisonment where the accused is an individual rather than a company.
Do the Courts make use of these limits when sentencing offenders? Most definitely the answer is “Yes”. Indeed, there is a case on record from a London Crown Court in mid-2010 in which a company director received a personal fine of £99,500. The Judge also ordered him to pay prosecution costs of a further £150,000, thus making the overall penalty a grand total of just under a quarter of a million pounds!
Granted, the case was somewhat unusual, and such fines are not an everyday occurrence, but it makes the point that the Courts will invoke such penalties if the case merits it.
Just as an aside, the Judge could also have had the director banned from holding a directorship (under different legislation relating to company law) but he didn’t go that far.
Corporate Manslaughter & Corporate Homicide Act 2007
The legislation has two names because the offence of causing a death without criminal intent is known as manslaughter in England and Wales, and homicide in Scotland (which has a slightly different legal system).
The Act was devised because incidents such as the Potters Bar rail crash had shown a weakness in the then current legislation. In such a complex incident it can be fairly easy to prove that some of those workers at the sharp end, so to speak, are liable in some way because they have breached health & safety, but what of those at the top of the company? How difficult is it to prove that senior managers knew of, and condoned, health & safety breaches for commercial reasons, or will they simply claim that their faith in their subordinates was misplaced?
The problem is that of identifying the “controlling mind” within the organisation, and the Corporate Manslaughter Act was designed to solve this problem.
Section (1) of the Act says (in essence) that: “An organisation ... is guilty of an offence if the way in which its activities are managed or organised a) causes a person’s death, and b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.”
So the key consideration behind the Act is the behaviour of the organisation as a whole rather than the behaviour of any particular individual within the organisation. The need to identify a specific “controlling mind” has been removed.
Since the Corporate Manslaughter Act is dealing with an organisation there is no point in employing the sanction of imprisonment since you cannot imprison a paper structure.
Instead the major penalty that can be imposed is that of an unlimited fine, and guidance produced by the Ministry of Justice suggests that the Courts will not shy away from multi-million pound fines where Judges feel that is an appropriate punishment.
Let me close by saying that the HSE will only prosecute as a last resort. They would far rather persuade people to comply of their own volition, but if they have to prosecute then they will. Health & safety legislation has teeth, and if it bites you then you’ll certainly know about it.
Andy Farrall holds the following professional qualifications – GradIOSH MIIRSM MInstLM – and is an accredited health & safety instructor registered with the awarding body HABC.
He is multi-qualified both in health & safety and in training, and has a proven track record in the emergency services; law enforcement; construction safety; security and training. His reputation is such that he has given presentations by invitation on a variety of specialist topics at conferences in Amsterdam, Singapore, Nairobi and Mauritius.
His wide experience ranges from developing and managing a training programme for over 800 Ministry of Defence security officers, through to conducting a forensic investigation on behalf of defence counsel into the causes of a major building collapse in central London.
In 2009 he set up his own company, Management & Safety Training Ltd, to provide both accredited training courses in health & safety, and an ethical consultancy service covering health & safety and fire safety.
Telephone: 01934 865 144