A health and safety warning for landlords and tenants

Proactive rather than reactive health and safety compliance for organisations is the message shown from case law since the implementation of the new health and safety guidelines introduced a year ago.

Just over a year has elapsed since 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 in cases concerning breaches of health and safety regulations. One of the reasons for the introduction of the Guidelines was because fines were seen as ‘too low’ where serious breaches occurred. Consequently, fines take into account the turnover of the defending company as a means to achieve a proportionate sentence. This year has seen various cases heard in the Courts following the implementation of the Guidelines which have provided useful insight and guidance as to how the Courts are applying them.

These cases have demonstrated that culpability is the decisive factor in sentencing. The fines awarded range from £1.6m to £5m for very large organisations. Therefore it is imperative that organisations ensure they achieve high standards of compliance. The cases heard over the last year have highlighted the similar breaches committed by organisations and show that proactive and preventative measures are fundamental to avoid such breaches.

Common breaches

• Continuous breaches of health and safety policy and over a long period of time.
•  An accident being caused by the organisation’s breach of its own policy and prior to the accident a number of reported incidents being ignored.
• Training being limited so that it had little or no effect on the organisation’s employees. In addition, little risk assessment and inadequate training taking place.
• The organisation being aware of the potential of factors to result in an accident but doing nothing to mitigate such factors to prevent, in some circumstances, accidents that were 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 have shown common mitigation factors taken into account under the new Guidelines. These factors can be broken down into acting before and after the accident. This can be especially relevant for organisations that have let commercial premises, as breaches of Health & Safety legislation resulting in criminal prosecution may cause the organisation’s lease to be forfeited, or may result in other action being taken by the organisation’s landlord under their commercial contract such as a franchise agreement.

Common mitigation factors

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

• Placing a high value on training and health and safety. It is important to 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 an organisation can show it has excellent training procedures implemented, this will lower the level of culpability and therefore lower the level of fine. In the appropriate case, there may also be open to the organisation the defence of due diligence.
• Making senior management aware of any failings in health and safety.
• Ensuring there is no cost cutting exercise when implementing health and safety policies.

In addition, if an accident has occurred, the following mitigation factors have been considered by the Courts in recent case law:

• Ensuring that where a fatality or accident has occurred, that this is treated with the utmost seriousness and attention.
• Taking voluntary steps to remedy the problem, for example ceasing to use whatever caused the accident or improve any gaps in procedure.
• Ensuring that there is no deliberate concealment of the events that caused an accident.
• Full credit will be given for a guilty plea. The earlier that a guilty plea is made, the more weight that the Court will attribute to such a plea.
• Ensuring that there are no other convictions following the accident. A full review of the organisation’s policies is imperative to identify any possible failings in procedure.
• Implementing and improving any deficiencies raised in health and safety policies following a full review to ensure compliance and ensuring this is carried out in a timely manner, including introducing organisation/group wide reviews and implementation of new policies to ensure compliance.
• Guaranteeing an exceptional level of cooperation with the Health and Safety Executive.
• Demonstrating 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 substantial financial implications to the organisation. The case law implementing the new Guidelines makes it evident that if an organisation breaches health and safety compliance, the starting position as regards sentencing will be that the level of fine imposed must be sufficiently substantial to have a real economic impact on the business.

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

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