The new sentencing guidelines for health and safety came into practice on 01 February 2016 and one year on, they’ve certainly made an impact. 

According to figures by law firm Clyde & Co, there’s been more £1m+ fines in the past 12 months than in the last 20 years combined. This isn’t entirely surprising - before the guidelines were released, there was very little instruction available to courts on how to deal with health and safety breaches. Here, we explore their influence over the last year.

How the guidelines work

The most notable thing about the new guidelines is that sentencing is based on the risk of harm, rather than the actual harm caused. This means that the court does not need proof of injury to sentence anyone - instead, they’re concerned with any failure to manage the risk.

The guidelines are broken down into a series of nine steps:

1. Determine the offence category - in step one, the court must decide how severe the sentencing will be based on culpability and the harm. For example, an organisation who deliberately disregarded the law and where the likelihood of death was high would be categorised as high culpability, harm category 1.
2. Fine starting point - using the defendant's financial information, the court will set a starting point for the fine and distinguish starting points based on how large the organisation is and their turnover.
3. Step back and review - the court must adhere to general principles and ensure that the fine reflects the seriousness of the offence in a fair and proportionate way
4. Consider - at this stage the court has to consider the effect of the fine on any other factors, like the impact on the defendant's ability to improve conditions to meet health and safety law.
5. Reduction for cooperation - the court can reduce the fine if the offender assisted the prosecutor
6. Reduction for guilty pleas - the fine can again be reduced for a guilty plea
7. Compensation and ancillary orders - here the court can supplement the sentence with additional orders to prevent future re-offending and redressing the harm caused.
8. Totality principle - this is in regards to offenders who have been sentenced more than once.
9. Reasons - the court must provide an explanation for the sentence given and the effects as a result.

The impact over the last 12 months

Since the guideline’s introduction, there has been an unprecedented increase in fines. According to a report by HSE, the average fine per offence has increased by 102%, with 116 fines in the past year being at a minimum of £100,000. The courts appear not to be holding back: there were five fines between December 2016 and January 2017 that were over £5m. The criteria for sentencing has a large part to play in this, since courts now have access to ‘starting point’ fines that are based on how large an organisation is and their turnover. Therefore, large-medium sized organisations will face the highest charges for health and safety breaches.

Individuals and companies are being examined under greater scrutiny, particularly because the guidelines stress that there doesn’t necessarily need to be a fatality for large fines to be issued. This forces businesses to think about how to reduce and manage risk and prevents people who aren’t complying flying under the radar just because there aren’t any current fatalities. 

The only way for organisations to avoid sentencing is to ensure that they’re complying with health and safety laws and regulations by undertaking risk assessments.

This can be difficult for the likes of duty holders who have a variety of day-to-day responsibilities – which is why we’ve created this checklist that defines compliancy requirements and allows you to quickly see if you’re meeting them.