In this article, Neil Hodgson from Gallagher Risk Management Solutions examines the changing sentencing guidelines for Health & Safety offences*, and how these will inevitably put more onerous requirements on sectors with hazardous workplaces, such as the Construction sector.
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Fines and Penalties

In February 2016, the Sentencing Guidelines Council issued new guidance for Health and Safety offences. This new guidance directed the courts on sentences and the size of penalties for breaches of health and safety, corporate manslaughter and food hygiene offences. Before its introduction, there was a lack of consistency, or indeed predictability, about what a defendant could expect.

With effect from the 1st November 2018, a change to these guidelines came into force, which applies regardless of when the offence was committed and relates to the inclusion of Gross Negligent Manslaughter, which had previously been excluded.

The Sentencing Guidelines are simply broken down into nine categories, each to be considered by the sentencing Court in turn.

The court must first consider the level of culpability. This ranges from ‘very high’ which involves a deliberate breach or flagrant disregard for the law, to a ‘low’ level of culpability where significant efforts were made to address the risk, even if those attempts were inadequate and there was no warning of the risk, the failings were minor and it was an isolated incident.

The next stage to be considered is the seriousness of harm ‘risked’ and the likelihood of that harm occurring. Health and Safety is based on ‘risk’ and the overarching responsibility of each duty holder is to ensure, as far as is reasonably practicable, the health, safety and welfare of employees and non-employees.

Under the new guidance, there is no requirement for actual harm to have been caused by a breach of care – no accident or injury has to occur – rather the focus is on the potential for the risk of harm arising from the alleged breach of duty.

When the guidelines consider the level of harm, they are concerned with the seriousness of harm ‘risked’ and if actual harm has been caused.

Thirdly, after considering the seriousness of harm risked - almost always ‘death’ or serious physical impairment - the court will then consider the likelihood of that harm occurring, which assists in identifying the most appropriate harm category. The category can be adjusted if the alleged breach resulted in actual harm, for example, someone was actually injured and/or a wide group of the public or employees were put at risk.

Once the court has established the level of culpability and harm caused, they will consider the means or turnover of the defendant to identify an appropriate punishment.

Since its introduction, we have seen the total of fines double, the size of individual fines double with the number of fines in excess of GBP1m showing a sharp increase. What we have also seen is that the Health & Safety Executive (HSE) have found it easier to prosecute firms and to issue significant fines.

Willmott Partnership Homes Ltd was fined in September 2018 after exposing members of the public to carbon monoxide fumes. An investigation by the HSE found that they built the flats in question several years before the incident and in 2014 some remedial work was carried out on an external wall. During the demolition and reconstruction of the wall, many live flues from flats’ gas boilers were removed, damaged and/or blocked, exposing the residents to a risk from carbon monoxide poisoning.

Willmott Partnership Homes Ltd as the principal contractor had not ensured that an adequate system of work was in place to manage the risks from working around the live flues and although they pleaded guilty, were fined GBP1.25m and ordered to pay costs of GBP23,972.33.

The new guidance meant that the prosecutions go beyond the household names with significant turnover to those of all shapes and sizes and perhaps more interestingly, not just the primary contractor, but the client / developer.

An example of this was in July 2018, Sherwood Homes, a construction company that specialises in new-build residential developments across Northwest England, was fined GBP76,000 for multiple breaches of the Construction (Design and Management) (CDM) Regulations, following a HSE investigation that revealed widespread safety failings at two sites.

Sherwood Homes had appointed several principal contractors to build new homes at the sites, one in Preston, Lancashire and the other at Tarporley, Cheshire. In the course of what it describes as “proactive” inspections of both sites, the HSE found that workers were exposed to risks including falling from height, electrocution, inhalation of silica dust and being struck by construction plant. An interesting development, however, is that much of the press focuses on Sherwood, not the principal contractors.

Workplace fatal injuries statistics released by the HSE in 2018 details that the construction industry reported 38 deaths, with the second largest figure being 29 in agriculture.

Should the construction industry be concerned with the inclusion of Gross Negligent Manslaughter?

Typically, H&S cases for Corporate Manslaughter have focussed on the organisation; however, there is a growing trend by the Police to focus on the individuals within the organisation.

Gross Negligence Manslaughter occurs when the offender is in breach of a duty of care towards the victim of a fatal incident and amounts to a criminal act or omission.

As an offence, it can only be committed by individuals in their own capacity. The new guidelines increase the risk of lengthy custodial sentences for the offenders (employers or managers). Criteria contained within the ‘high culpability’ category detailed earlier include decisions being made that put profit before safety or, that the offender was aware of the risk of death due to negligent conduct.

It is therefore easy to see how an individual could be accused of allowing the risk of death to be present - if their risk assessment, for example, identified a risk of death and that remedial measures were not cost prohibitive but were still ignored, and that a foreseeable incident then resulted in a fatality.

The guidelines detail not only a range of custodial sentences, but give a starting point for consideration depending on how culpable the offender is deemed to be. Factors such as previous convictions, ignoring previous warnings or the number of people at risk can contribute to an increased sentence.

Culpability Custodial Sentence Starting Point Sentencing Range
Very High 12 Years 10-18 Years
High 8 Years 6-12 Years
Medium 4 Years 3-7 Years
Low 2 years 1-4 Years

Although you would hope that many cases will fall in the ‘medium’ culpability bracket with the advances in safety we have generally seen over the years in the construction industry, this should still be of major concern, especially as the maximum sentence can be life imprisonment.

Gallagher Risk Management Solutions offer a range of services which can help prepare your organisation and mitigate risks such as these.

* www.sentencingcouncil.org.uk/wp-content/uploads/Health-and-Safety-Corporate- Manslaughter-Food-Safety-and-Hygiene-definitive-guideline-Web.pdf