The latest legislation means that breaches of Health and Safety law may threaten your liberty. The Health and Safety (Offences) Act 2008 makes imprisonment a reality for most Health and Safety offences. Previously, imprisonment was an option only for offences committed in three limited areas, and was rarely used (an example being the offence of contravening an improvement or prohibition notice). It’s a very different story.
The Act quietly received Royal Assent on 16 October last year, and came into force on 16 January. This Act has progressed relatively unnoticed by the business community despite the potentially serious ramifications for those with any responsibility for Health and Safety at work.
In addition to making imprisonment an option for Health and Safety offences in both the Magistrates and Crown Courts, the Act has raised the maximum fine which may be imposed by the Magistrates Courts to GB pound 20,000 for most Health and Safety offences (a significant increase, for example, on the fine for a breach of Health and Safety regulations, which stood at GB pound 5,000). It also makes certain offences previously triable only in the Magistrates Court now triable either in the Magistrates or Crown Courts.
The objective behind the Act is to turn up the heat on sentences for Health and Safety offences so that they become a sufficient deterrent, and deal appropriately with individuals committing offences.
Who will be imprisoned?
Under Health and Safety law, any individual in the workplace – including employees, management and directors – can be found guilty of Health and Safety offences which, under the new law, will bring with them imprisonment as an option for punishment. The maximum term of imprisonment is two years, which can also be accompanied by an unlimited fine.
Labour MP Keith Hill, who introduced the Act, has said that imprisonment should only be appropriate in the most serious of cases. This is of little comfort given that sentencing is now a matter purely for Magistrates and Judges, who are without precedent and are yet to receive any guidance from the Sentencing Guidelines Council (which will be crucial).
Watch out senior managers
Hill has said there’ll be a minimal increase in those going to jail as a result of this Act. Don’t be fooled. Given the new focus on the acts and omissions of senior managers in prosecutions brought under the new Corporate Manslaughter and Corporate Homicide Act 2007, it’s likely that the Prosecution will be tempted to send more and more senior managers away at the same time, particularly when public perception plays such an important role in high profile and multiple fatalities.
Simply put: if we cannot ‘get’ individuals for corporate manslaughter, we’ll get them for breaches of Health and Safety.
Innocent until proven guilty?
Even more worryingly, the new provisions for imprisonment pose a serious Human Rights issue. Individual defendants facing the possibility of imprisonment will be facing what’s called a ‘reverse burden of proof’.
As the law stands, the Prosecution has to prove very little – with respect to the general Health and Safety offences – before the burden of proof switches to the Defendant to show that he or she fulfilled their duty so far as was reasonably practicable.
While the Courts have already held that the reverse burden is compatible with the European Convention on Human Rights against companies, the question that arises in the context of this Act is whether the addition of imprisonment – as a possible penalty when a person is convicted of an offence to which the reverse burden applies – means that the reverse burden is not in fact compatible in these circumstances.
Unsurprisingly, the Department of Work and Pensions is of the opinion that the Act is compatible with the European Convention on Human Rights. This may well be subject to challenges in the Courts in due course.
What should you be doing now?
The Act doesn’t impose additional duties upon individuals or businesses – it simply deals with penalties for existing offences. That said, with the stakes being considerably higher, businesses and individuals (particularly those in management) should be ever more concerned to fulfil their Health and Safety obligations. This means ensuring that adequate and effective systems and procedures are in place and, importantly, that they’re being followed.
Individuals – again particularly those in management – will want to make sure that their responsibilities with respect to Health and Safety are clarified and agreed with their employers such that they can be confident they’ll be able to fulfil their individual duties.
Individuals in the firing line
The focus of the Corporate Manslaughter and Corporate Homicide Act 2007, and now this legislation, is on the acts and omissions of the individual. This change of emphasis away from solely looking at corporate culpability to blaming the individual within the company is going to literally shock managers and directors who become subject to criminal investigations by the police service and the Health and Safety Executive. The Regulators will be seeking to flex their muscles.
If only for selfish reasons, those in charge of running the organisation ought really to be asking the question: ‘How sure am I that the company is being run safely, and what’s my role in that respect?’ For once, be that ‘doubting Thomas’ and make sure that, so far as you can, the risk assessments, the safe working practices and the training are all in place and being followed. Do that and the emphasis of the new law will turn back to the liability of the company and not yourself.
Poppy Williams is a solicitor from DLA Piper UK LLP specialising in defending Health and Safety and corporate manslaughter prosecutions
Tougher Health and Safety Law demands tougher drugs policies
According to Concateno, one of the leading drug testing company, the new Health and Safety Offences Act adds a further incentive to businesses considering the introduction of an effective anti-drugs policy and drug testing in the workplace.
Neil James – head of sales for Concateno’s workplace division – told SMT Online: “Alongside the tougher legislation for corporate manslaughter that has been introduced in recent years, the new Act makes it vital for companies to manage down risks in their businesses, and also to demonstrate that they have undertaken due diligence to indentify and prevent causes of accidents.”
James added: “Employee drug misuse can be a contributory cause of accidents at work, and a company’s management could potentially be held responsible if they haven’t taken sufficient action. Businesses have the ability and responsibility to proactively address this situation.”
To be effective, a company’s drug and alcohol policy needs to include deterrents against the inappropriate use of drugs and alcohol – through education; Employee Assistance Programmes that help employees address their drugs problems through appropriate support and treatment; and through testing (whether pre-employment, at random, or following incidents).
