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Navigating the health and safety minefield post-Covid 19

Lesley White, head of ORJ Solicitors’ Health and Safety Department, assesses sentencing guidelines for those breaching H&S regulations

As whole swathes of the UK economy emerge from lockdown and attempt to return to some sort of normality, thousands of employers are facing a fresh dilemma: they desperately need to get back to business post-Covid 19, yet they cannot afford to fall foul of health and safety legislation.

Balancing the twin needs of business and employee wellbeing is nothing new, but events in 2020 have added a whole new layer of complexity and risk for employers.  The government wants people back at work wherever possible – but of course, they are not the ones who will directly suffer if this creates fresh health and safety problems.

So as businesses adapt their working practices and get back to full swing, it is a good time to get acquainted with the health and safety regulations – and sentencing guidelines – that currently apply.

Courts presiding over health and safety cases are required to follow the Sentencing  Council Guideline. This sets out a nine-step process covering everything from the category of offence committed, the size of the company and the offender’s level of culpability. Here are some of the key points to bear in mind:

Creating the risk of harm – Health and safety offences are concerned with failures to manage risk. They do not require proof that actual harm has been caused.

Categories of harm –  The Guideline sets out categories of harm based upon the risk of harm created by the offence.

The assessment of harm looks at both the seriousness of the harm risked by the offender’s breach (for example death; physical or mental impairment resulting in lifelong dependency; a progressive permanent or irreversible condition) and the likelihood of that harm arising (high, medium or low).

The court will consider whether the offence exposed a number of workers or members of the public to the risk of harm: the greater the number, the greater the risk; and whether the offence was a significant cause of actual harm.

Actions of victims – If someone is exposed to harm, their own actions are unlikely to be taken into account for sentencing purposes. Employers are required to protect workers or others who may be neglectful of their own safety in a way that is ‘reasonably foreseeable’.

Degree of culpability – The Guideline concentrates on how far the offender’s action (or lack of action)  has fallen below an acceptable standard of care. With reference to relative financial means, a substantial penalty can be expected in recognition of a high ​level of culpability even if the actual harm caused is relatively low.

Size of the company – The size of your company can have a major bearing on any penalties imposed in the event of a breach. There are four bands, ranging from large (turnover of £50  million-plus) to micro (turnover of not more than £2 million).

At the high end, the level of fines is designed to make the directors and shareholders sit up and take note. For example, the starting point for a large company, with the highest harm category, is £4,000,000 (with a range up to  £10,000,000). By contrast, low culpability and the lowest harm category have a  starting point of £10,000 (with a range up to £60,000).

For a micro company, the ranges using the above categories are £450,000 (very high culpability) and £5,000.

Aggravating and mitigating factors – Within this Guideline, the court will also take into account both aggravating and mitigating factors. These can result in an upwards or downwards adjustment to the starting point of a fine.

The statutory aggravating factor is a relevant recent conviction. Other factors are cost-cutting at the expense of safety, deliberate concealment of the illegal nature of the activity, obstruction of justice, and falsifying documents.

Factors in mitigation include no previous relevant and recent convictions,  evidence of steps taken voluntarily to remedy the problem, high level of cooperation in the investigation, acceptance of responsibility.

Means-tested penalties – An offending company’s means will be relevant – so it is important that it can provide evidence where necessary.

In the interests of proportionality, the court will wish to ensure that any proposed fine is commensurate with the overall means of the offender. This will be weighed along with the seriousness of the offence. If appropriate, the court can take into account the resources of a linked company.

Other factors – Adjustments will also be made by the court to take account of a guilty plea;  assistance during the investigation, ancillary orders such as compensation and, in the case of an individual, being disqualified from acting as a director.

Individual offenders – The Sentencing Council Guideline applies to individuals as well as companies. The factors used to determine an individual’s offence category, culpability, mitigation, the proportionality of penalty and so on vary slightly – but the principles are broadly similar.

Let’s be clear: The Sentencing Council Guideline is resulting in more significant, far-reaching fines than in previous times. It is designed to ensure that it is not only right but more cost-effective to take the correct precautions rather than expose others to risk.

Lesley White is Health and Safety Director at ORJ Law, with offices in Stafford, Telford and Birmingham. For more ​information, contact: lesley.white@orj.co.uk or call  01785 223440.