updated on 30 April 2019
QuestionWhy is health and safety compliance for businesses more important than ever?
In recent years, regulators have taken a proactive approach in prosecuting businesses for breaching their health and safety obligations. This has been matched by a similarly proactive approach being taken by the courts, who have been imposing increased sentences on businesses and individuals since the introduction of the Health and Safety Definitive Sentencing guidelines in 2016 (the Guidelines).
A health and safety conviction punishes a business financially, but it can also bring reputational damage.
The recent trend of increased enforcement action being taken against organisations and individuals does not look like diminishing any time soon. It is therefore more important than ever for organisations to recognise the duties they owe and commit to health and safety compliance. The consequences for businesses and individuals could otherwise be catastrophic.
Corporate manslaughter is defined within the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA). Under CMCHA, an organisation is guilty of an offence if the way in which its activities are managed or organised, by its senior management, causes a person's death and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. If a business is found guilty of corporate manslaughter, it is liable to pay an unlimited fine. An organisation's senior management structure will vary, depending on many factors, but particularly the size of the respective business. Therefore, a determination of a business's 'senior management' is accordingly made on a case-by-case basis.
Gross negligence manslaughter is an offence committed by an individual rather than an organisation (as with corporate manslaughter). It is an individual's gross failing that is key to this offence. A successful prosecution for this offence is likely to come in the form of a lengthy custodial sentence for the individual defendant. The test for gross negligence manslaughter was laid out in R v Adomako (1994). The House of Lords held that in order for gross negligence manslaughter to be established, a duty of care must have existed, there had been a breach of that duty, the breach had caused the death and the breach should be characterised as gross negligence and a crime. The court further held that it is for a jury to decide whether the accused's acts were so bad that in all the circumstances they amounted to a crime. While any employee can potentially fall within the net of gross negligence manslaughter liability, the offence is most likely to be committed by senior employees within a business, as these are the most likely individuals to owe a duty of care.
Gross negligence manslaughter prosecutions will often be brought by the police/Crown Prosecution Service in conjunction with Corporate Manslaughter prosecutions, although this will not necessarily always be the case and prosecutions for each offence can also be brought separately.
An employer also owes various duties under the Health and Safety at Work Act 1974 (HSWA). For example, HSWA requires an “employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”. HSWA obliges employers to ensure “that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety”. Section 37 establishes that where it is proven that a director, secretary or other similar officer of the body corporate consents to the body corporate committing a health and safety offence, that individual(s) will be punished as well as the body corporate. Breach of any of these obligations entails criminal liability. This is regardless of whether the breach results in an individual suffering a fatal injury, a significant injury, a minor injury or no injury at all (ie, a near miss) – as the Guidelines now focus upon the level of risk and not actual harm. Successful prosecutions can result in organisations being fined and individuals receiving custodial sentences and/or a fine.
The Guidelines cover corporate manslaughter and food, safety and hygiene offences. The Guidelines instruct the court to quantify the fine they impose on a guilty organisation based on the business's turnover. The Guidelines then stipulate that the court must determine the organisation's level of culpability and likelihood of harm. The higher the culpability and likelihood of harm, the higher the fine will be; and vice versa. The Guidelines then instruct the court to adjust the level of fine upon consideration of any aggravating and/or mitigating factors in the particular case. Where a defendant organisation's turnover is as high as to very greatly exceed the threshold for 'large organisations' (£50 million and over), the courts may move outside the published range in order to achieve a proportionate sentence. This creates the potential for significant fines to be imposed upon the largest businesses.
It is fair to say that, since the arrival of the Guidelines, the courts have not hesitated to impose substantial fines on organisations breaching health and safety law. The total fines imposed increased significantly from £18.1 million in 2014/2015 to £71.8 million in 2016/2017 and £72.6 million in 2017/2018. Since the Guidelines came into effect in February 2016, there have been multiple cases where fines in excess of £1 million have been imposed, including, in R (HSE) v Merlin Attractions Operations Limited (2016), where the defendant was fined a weighty £5 million (after a guilty plea reduction from £7.5 million).. Current levels of sentence will likely strike fear into organisations, as they show that the court is prepared and willing to take a hefty swipe at an organisation's finances, should they breach their health and safety obligations. However, notwithstanding the above, it is worth considering that last year has seen a plateauing of the total level of fines handed down. This plateauing does not, however, in any way mean that fines are likely to decrease in the future.
The courts have also not shied away from imposing significant custodial sentences on individuals convicted of health and safety offences. In R v Neil Carpenter (2018), the defendant farmer was sentenced to four and a half years' imprisonment for gross negligence manslaughter and 10 concurrent months for two HSWA breaches after a worker was killed in an incident involving a tractor. The courts apply a different set of sentencing guidelines for gross negligence manslaughter (the Manslaughter Definitive Guideline). These guidelines stipulate that the court is to determine the level of culpability of the defendant. There is not a step in the guidelines dealing with harm, as for all cases of manslaughter the harm (loss of life) is intrinsically of the upmost seriousness. The level of culpability will then dictate the severity of the sentence imposed. In a further example, in May 2017, a construction supervisor, Kelvin Adsett, received a custodial sentence of one year for gross negligence manslaughter over the death of a lawyer crushed by half-tonne windows.
Should a business be prosecuted or convicted of a health and safety offence, it is also likely to suffer reputational damage through negative press coverage. This can affect a business's finances, share price and ability to compete in tenders for future work. It may also prevent the business from being able to attract the best staff. Also, the business's current staff may feel demotivated due to a perception of the business not acting in their best interests – (ie, not prioritising their health and safety while at work). Furthermore, smaller businesses do not typically have many directors. If one of those has to serve a custodial sentence for a health and safety offence and the business is unable to replace that director, the business's management structure could be destabilised and its performance will likely suffer.
For individuals convicted of a health and safety offence, the consequences include having a criminal record in addition to the penalty imposed. This can affect, among other things, employability and future travel aspirations.
The above highlights the significant impact that convictions for health and safety offences can have on both organisations and individuals. This makes ensuring compliance with health and safety obligations, and thus avoiding prosecution, all the more important.
Businesses can improve their compliance by taking a proactive approach towards health and safety and seeking compliance advice. The Health and Safety Executive (HSE) also publishes useful guidance notes on health and safety compliance and these resources are well worth consulting. Furthermore, businesses should seek to invest the necessary time and money into implementing health and safety systems, policies and procedures suitable to the size of their business. Smaller organisations may only require simple measures to be taken for them to ensure compliance. While this initial outlay may be significant, if it achieves the required health and safety compliance, the disastrous consequences for an organisation that come with a conviction can be avoided. Such investment also portrays a positive image to the outside world that the business takes its health and safety obligations seriously.
Alexander Sheppard is a trainee solicitor at DWF. He is based in the firm’s Leeds office.