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Individuals have always been at risk of poor health and safety standards but the latest sentencing guidelines mean serious risk to businesses. And that includes small and even micro-businesses.

New sentencing guidelines are more prescriptive and at a higher level that ever before and they extend down to all businesses, even those with a turnover (i.e. not profit) below £2M

Health and safety offences are criminal in nature so companies (and individuals) cannot insure against them. Hereto fines, even for large organisations, have been relatively low and rarely reached £1M. Since the latest guidelines, even a relatively small organisation ( say with a turnover of £2.5M) could potentially face a £1M fine.

Where incidents are reported fines could result even if no injury results. ConocoPhillips (UK) Limited was recently fined £3M for a breach that could have resulted , but did not result, in a fatality.

Sentencing is based initially on culpability and not just for blatant breaches of health and safety regulations but some culpability can still be found where there was no warning or circumstances indicating a risk.

Levels of fine are determined on a series of tables of which the components are:

  1. The culpability of a business or individual: Low, medium, high, very high
  2. A category describing the relationship between the level of harm (including that which could result) and the likelihood of that harm – the Harm Category 1, 2, 3 or 4 (highest to lowest)
  3. The size of the organisation e.g. £2M to £10M turnover

There are strict limits on how far a fine might be reduced by mitigation or increased by aggravation.

What can businesses do to protect themselves?

Here are some matters that companies might do:

  • Have robust company policies and procedures
  • Have sound safety systems
  • Implement company policies
  • Adhere to safety systems
  • Use appropriate sources of advice
  • Carry out thorough inspection processes
  • Provision of funding
  • Create of a positive safe culture by words, deeds and example
  • Ensure sound training, assessment and records
  • Observe competence before signing it off, not just using a “tick-box”
  • Review job descriptions and particularly role responsibilities
  • Document operating practices
  • Implement a feedback channel, e.g. by setting up a safety committee of employees
  • Ensure they have a whistle-blowing policy and that it is “safe” for employees to blow it.
  • Document all safety feedback and respond
  • Apply disciplinary processes as appropriate.

Accidents can cause death or life changing injuries and health and safety Incidents will need to be taken seriously; whether or not injury results.

Consider, for example, a worker dropping a scaffolding clamp from a height, which narrowly misses a passer-by. This might be regarded as a Harm category 1 because of the potential for a fatality and the high likelihood of a fatality resulting.

The culpability would be judged on many of the factors above. Let us assume, for arguments sake, that a culture existed where shortcuts were encouraged, and any safety guidelines were simply there to “tick the box” and were regularly ignored. On inspection it is revealed that workers had complained to supervisors about risks and the complaints had been dismissed as unnecessary and meriting no response. For a micro organisation (turnover <£2M) this could easily result in a sentencing fine of £250,000. Even if steps had been taken to avoid such incidents, yet there was a breach of regulations, this company might still face a fine of £30,000 – just because a worker dropped a clamp.

Bears thinking about.