New Guidelines for February 2016

New Guidelines for February 2016

Posted on: 18/12/2015

New guidelines come into force on 1 February 2016 which are set to have a huge impact when prosecuting health and safety offences.

Categorising culpability

The new changes will introduce checks to determine an offender’s culpability. The offender will be classified into one of four categories ranging from ‘very high’ or ‘low’. For example, an offender will be considered as ‘very high’ if a flagrant disregard for the law has been shown. Alternatively, a ‘low’ category will be awarded when the defendant has fallen short of the appropriate standard.

This check means that even if there are procedures in place, an incident which has fallen outside the controls may still result in a fine.

Potential of harm

After an offender has been categorised via the culpability check, the potential of harm must be decided and considered in terms of whether its likelihood is high, medium or low. This does not mean actual harm caused, as no harm has to have been caused for an offence to end up in Court.

In order for the Court to consider the potential for harm in each case, it must assess the following:

-         Were large numbers of workers at risk?

-         Were members of the public at risk?

-         Did the offence cause actual harm?

If any of these factors apply, the Court must consider raising the category of harm.

Fines

The factors which were used to determine the category of harm will then be used to decide on the fine. The amounts here apply to various sizes of companies and can increase or decrease significantly, dependent on each circumstance.

The Court will take a number of factors into consideration in order to determine the fine, and as of February 2016, will need to make the fine reflect the offence in terms of profitability. The new guidelines state that fines should be “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation”. 

The Court of Appeal recently stated that they saw no reason why, for the very largest organisations found guilty of serious breaches of health and safety law, fines in excess of £100M could not be imposed.

In addition to fines, there is still the prospect of prison sentences being handed down to individuals who are culpable.  This includes directors, managers, workers and even health and safety advisers.

These guidelines will come into force on the 1stFebruary 2016, and will apply to all cases irrespective of the date of the offence.  The changes amount to a ‘carrot and stick’ approach to driving up health and safety standards in the UK. It is certainly useful to note though that the carrot is quite small and the stick is very, very big with spikes.

If you want to find out what the changes mean for you and your employees, please get in touch. We’d be delighted to help.