Sentencing guidelines: Will they make the workplace safer?

Sentencing guidelines: Will they make the workplace safer?


  • Date: Monday 8th February 2016

The new sentencing guidelines have been described as the biggest change to health and safety law for 40 years.   Tim Hill, Partner and Solicitor Advocate at Eversheds LLP, asks if the changes will really make the workplace safer?

The new sentencing guidelines for health and safety, corporate manslaughter, food hygiene and food safety offences have now come into full force. Although there are no changes to substantive Acts or regulations, this undoubtedly represents the biggest change in the law since 1974.

In simple terms, it will introduce the prospect of million pound fines for larger organisations, and smaller businesses could see fines in excess of 10% of turnover. It also lowers the threshold for potential imprisonment for individuals so that negligent actions which put people at risk, rather than just reckless or deliberate behaviour, could result in any employee or director facing the possibility of a stretch behind bars.

Given increasing scrutiny of businesses’ corporate social responsibility credentials and the public outcry following events such as Alton Towers or the Coroner’s Inquest involving Thomas Cook, at one level it is difficult to argue that organisations convicted of breaches which cause harm should not pay fines more in line with those for corruption.

However, will hammering all businesses convicted of a breach actually make workplaces safer, or will it represent a backwards step either by driving a culture of non-reporting, or pushing larger businesses to hive off ‘risky’ activities into shell companies or take their business away from the UK altogether and place it in less regulated jurisdictions?

A large organisation (with a turnover greater than £50million) being sentenced for high culpability and harm (a workplace fatality for example) can expect a range of £1.5m to £6m with a starting point of £2.4m (to be adjusted on the facts of the case). If the culpability is very high the range is £2.6m to £10m with an entry point of £4m. Nor is £10m a ceiling. Large organisations with a turnover several times more than £50m potentially face considerably larger fines.

The difficulty is arguably that very well run businesses with a strong safety culture and good processes, procedures and training, but who fail in one discrete area, will find themselves facing significant fines which are arguably out of proportion to their overall attitude and approach to safety. Perhaps of more impact, will be the correspondingly negative comments which will accompany such a fine, giving the outside world (including employees, customers and suppliers) the impression they are a poor performing company which does not take health and safety seriously.

In many ways, that inability to give ‘credit’ to those businesses which genuinely try to do the right thing means that the crude imposition of higher penalties in isolation is unlikely to drive any immediate change in safety culture or behaviours. Those businesses which already recognise the significant advantages of operating a safe and healthy workplace will be unlikely to do anything fundamentally different simply because of the threat of much higher fines if they get anything wrong.

On the other hand, those businesses which recognise continuous improvement means developing a constant state of unease and looking beyond audit green lights and low LTIs, should take these changes as another trigger to challenge their behaviours. In that way, the guidelines may make workplaces safer, but it is unlikely the Sentencing Council had this in mind when they were being drafted.

 

Source: SHP Online


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