Sentencing of health and safety offences in the construction industry

Health and safety is of paramount importance for any employer, particularly in the Construction industry.

Did you know:

• Fatal accidents in the construction industry are on the decline. HSE confirmed there were 35 fatal accidents last year, in comparison to the previous five year average of 43.
• Almost half of fatal accidents in the past five years are caused by falls from height.
• Non-fatal accidents are also in decline; the rate in 2013/14 was around 40% less than 2001/02.
• The most common types of injury at work are slips and trips (23%), lifting injuries (22%), falls from height (19%) and from falling objects (11%).

The past year has seen two significant changes in the way that Health and Safety offences are dealt with by the Courts meaning those convicted of offences can expect to receive tougher sentences.

It is a criminal offence for a person to fail to discharge their obligations under the Health and Safety at Work Act or any regulations. There does not need to have been an accident at work to bring about a prosecution. For example, a failure to adequately guard the moving parts of machinery can result in a conviction of the employer even if no one is actually injured.

Where there is a conviction, the offender can be sentenced in either the Magistrates Court or the Crown Court, the latter usually being for the more serious or complex offences. This court hierarchy was previously reflected in the sentencing powers of the two types of courts; however, changes to sentencing penalties and guidelines are likely to impact on this.

Maximum Penalties in the Magistrates Courts

Historically there have been limits set on sentencing powers of Magistrates Courts. For Health and Safety Offences the maximum prison term they have been able to impose was 6 months and the maximum fines have ranged between £5000 and £20,000 depending upon the offence.

In contrast the Crown Court has generally been able to impose prison sentences of up to 2 years and/or unlimited fines. Therefore, when Magistrates considered that their powers were inadequate, they were able to send cases to the Crown Court for sentencing. However, this system had its flaws, with delays in matters being dealt with and valuable court time being used for sentencing high volumes of cases.

However, the limits on the Magistrates powers have now been removed. For cases where the offence was committed on or after 12th March 2015 it is now published to the Magistrates to impose prison sentences and fines the same as those in the Crown Court.

Sentencing guidelines

Sentencing for Health and Safety Offences has been afflicted by two problems. Firstly a perception that the penalties handed out by the Courts have failed to adequately reflect the seriousness of the offending and secondly, a lack of consistency, particularly in the Magistrates Court.

The Sentencing Council for England and Wales is the body which produces guidelines for sentencing of a whole range of offences. From 1st February 2016 new guidelines come into effect specifically addressing Health and Safety offences.

The new guidelines specify a starting point for sentencing which reflects a number of factors, including:

• The culpability of the offender (i.e. whether the offence was deliberate or as a result of an oversight)
• The harm caused (ranging from circumstances where no actual harm was caused but there was a risk of harm right up to multiple fatalities).
• The size of the business based on turnover or the financial means of individual offenders.
• Any aggravating and mitigating factors specific to the case.

This structured approach should help the Courts to achieve consistency. The guidelines also aim to ensure that fines are set at a level which achieve the aims of sentencing; to punish the offender and deter them and others from future offending.
In the words of the guidelines: “The fine must 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.”

Obligations under the Health and Safety Act at Work Act – a reminder

The Health and Safety at Work Act sets out clear duties that employers, the self-employed and employees have in order to mitigate against health and safety risks. As a reminder of these responsibilities:

• An employer has a duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees (Section 2).
• Employers and the self-employed must ensure that the way they conduct their business does not expose anyone else (i.e. anyone who is not their employee) to health and safety risks, as far as is reasonably practicable (Section 3).
• An employee must take reasonable care for their own health and safety and that of other people who may be affected by their acts or omissions at work. A director of a company can be prosecuted in their personal capacity for certain offences (Section 7).

This content is correct at time of publication