Guide to the sentencing guidelines

On February 1^st 2016, the amended sentencing guidelines for health and safety came into force. The aim of the changes to the guidelines was to provide courts with comprehensive guidance for all health and safety offences in any case sentenced in England and Wales.

In this article we hope to provide a simple overview of the sentencing guidelines, which you can use to determine how they would affect your organisation in the event of an offence.

How are fines determined?

The Sentencing Council has laid out a framework that must be followed during the consideration on the appropriate financial penalty.

The penalty is selected by:

• Deciding on the seriousness of the offence by determining the defendant’s culpability and the risk of harm that did, or could have occurred.
• The company’s turnover (the framework has five categories of turnover - micro, small, medium, large and very large).

What is culpability?

Culpability relates to the responsibility for fault or wrongdoing.

In the guideline framework there are four categories of culpability:

• Very high - deliberate breach of or deliberate disregard for the law.
• High - falling far short of the appropriate standard, for example failing to put industry standards in place or failing to make changes following an incident.
• Medium - falling short of the appropriate standard in a manner that falls between high and low categories such as putting systems in place that were not sufficiently adhered to or implemented.
• Low - falling not far short of the appropriate standard, for example significant efforts were made to address the risk but were inadequate on this occasion - there was no warnings or circumstances indicating a risk to health and safety.

What is harm?

Within the context of the sentencing guidelines, harm is the “seriousness of harm risked”. It will be the risk of the identified injury (e.g. risk of death) that will be considered.

There are three levels of harm:

• Level A - death or physical or mental impairment resulting in lifelong dependency on third party care for basic needs. Significantly reduced life expectancy.
• Level B - physical or mental impairment (not amounting to level A) which has a substantial and long-term effect on the sufferer’s ability to carry out normal day-to-day activities or on their ability to return to work. A progressive, permanent or irreversible condition.
• Level C - all other cases not falling within Level A or B.

The courts are also required to decide on the likelihood of that harm arising in order to arrive at a final harm category.

Company Turnover

The five categories in the framework range from no more than £2 million for micro businesses to £50 million and over for very large companies.

For larger organisations, fines can range anywhere between £10,000 and £3 million. Exceptional cases can go above this though, such as the Alton Towers ‘Smiler Rollercoaster’ incident which resulted in a £5 million fine.

Once the culpability, harm and turnover have been determined, a penalty can then be decided.

There are other factors that can affect the penalty such as a good past health and safety record, or an early guilty plea. However, factors such as obstructing an investigation or cost-cutting at the expense of safety can impact negatively on the penalty.

Worried about being fined? Not sure if you are doing everything you are legally required to? Contact us on 01394 389683 or info@safetyboss.co.uk and we can help you to feel confident in your health and safety requirements.