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Proactive rather than reactive Health and Safety compliance for companies occupying commercial premises, the “business operator”, is the clear message shown from case law since the implementation of the new health and safety guidelines introduced more than a year ago.

The Sentencing Council’s Guidelines for “Health and safety offences, corporate manslaughter and food safety and hygiene offences” (the Guidelines) came into force on 1 February 2016. The Guidelines provide the Courts with a structure of tiered penalties for the range of culpability, sizes of organisations and level of harm. One of the purposes of the Guidelines was to increase fines which were previously seen as being “too low” where serious breaches occurred. Consequently, fines are centred on the turnover of the defendant company. This year has seen various cases determined in the Courts following the implementation of the Guidelines. It is now clearer how the Courts are applying these Guidelines.

These cases have demonstrated that culpability is the decisive factor in sentencing. The fines awarded could extend into several millions of pounds for very large organisations. Therefore it is imperative that companies ensure they achieve high standards of compliance. The cases heard over the last year have highlighted the similar breaches committed by companies and show that proactive and preventative measures are fundamental to avoid such breaches.

Common breaches:

  • Continuous breaches of Health and Safety policy and for a long period of time
  • The accident is caused by the company’s breach in its own policy and prior to the accident a number of reported incidents were ignored
  • Previous accidents and convictions with worryingly similar circumstances
  • The training was so limited it had little or no effect on the employees. In addition, there was little risk assessment and inadequate training
  • The company was aware of the potential for factors to result in an accident but did nothing, therefore it was easily avoidable
  • Failure to implement and properly manage an effective safe system of work and therefore falling far below the standards expected.

Mitigation is crucial for reducing the level of fine to be awarded by the Courts, the cases heard over the past year has shown common mitigation factors taken into account under the new Guidelines. These factors can be broken down into acting before and after the accident.

Common mitigation factors:

The mitigation factors to consider now, regardless of any accident are as follows:

  • Put high value on training and Health and Safety to rely on a due diligence defence. Ensure there is appropriate training and procedures in place at all times. The crucial aspect of this is ensuring implementation and not simply ticking boxes by presenting an audit trail of training material. Where a company can show it has excellent training procedures implemented, this will lower the level of culpability and therefore lower the level of fine
  • Any failings in Health and Safety must be made aware to senior management
  • Ensure there is no cost cutting exercise when implementing Health and Safety policies.

In addition, if an accident has occurred on the premises, the following common mitigation factors have been evidenced in the recent case law:

  • Where there is a fatality or accident, ensure this is taken very seriously
  • Take voluntary steps to remedy the problem, for example ceasing to use whatever caused the accident or improve any gaps in procedure
  • Ensure there is no deliberate concealment of the events that caused an accident
  • Full credit will be given for a guilty plea, the earlier the better
  • Ensure there are no other convictions following the accident. A full review of the company’s policy is imperative to identify any failings in procedure
  • Implement and improve any deficiencies raised to ensure compliance and ensure this is carried out in a timely response
  • Guarantee an exceptional level of cooperation with the Health and Safety Executive
  • Demonstrate acceptance of responsibility for the accident.

As a result of the new Guidelines the risk of non-compliance and failings in Health and Safety procedure are at an all-time high with potentially huge financial implications. The case law implementing the new Guidelines makes it evident that if you fall below the required standards, the fine imposed will be sufficiently substantial to have a real economic impact. In certain cases it could be argued that the global or wider turnover of the parent/group company should be the bench mark when fixing the levels of fine.

The message is clear – ensure compliance and enjoy occupation!

For further information regarding this topic or any other property and construction dispute, please contract Shams Rahman – Partner, Curtis Payn – Associate, or any member of Edwin Coe’s Property Litigation Team.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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