Warning: New Sentencing Guidelines For Work Related Fatal Accidents.

Peninsula Team

February 26 2010

Recently published guidance for judges sentencing companies guilty of corporate manslaughter, or a breach of health and safety legislation which has contributed to a work related death, came into force last week. They apply to all cases heard by the courts irrespective of the date on which the offence occurred.

The guidance, issued by the Sentencing Guidelines Council, will significantly increase the penalties imposed. The Council’s intentions are clear –“punitive and significant fines should be imposed both to deter and to reflect public concern at avoidable loss of life. They should have an impact on the company or organisation.”

From last Monday fines on conviction for corporate manslaughter will seldom be less than £500,000 and may be measured in millions of pounds; a level of fine that would previously have been expected only for cases resulting from a major disaster.

The new sentencing guidelines also increase the level of penalty for cases where an offence under the Health and Safety at Work Act has been a significant cause of death. Here fines starting at £100,000 and rising to several hundreds of thousand pounds will become the norm.

The guidelines explain that the approach should be for the court to first consider the foresee-ability of serious injury as a consequence of the company’s conduct. Then the court has to consider whether the defendant behaved with reasonable care and how far short of the expected standard it fell. The court must go on to consider whether the breach and the associated behaviour was symptomatic or an isolated event. Senior management involvement or lack of it will also be relevant; the higher up the responsibility, the more serious the offence and the heavier the punishment.

Aggravating or mitigating factors will also be taken into account to increase or reduce the penalty. Aggravating factors include causing more than one death, causing multiple injuries, failing to pay attention to advice from officials, employees or members of the public, ignoring published guidance, cost-cutting at the expense of safety and any deliberate failure to obtain or comply with relevant licences. Mitigating factors will include; a genuine effort to remedy the defect, a good safety record, a swift acceptance of responsibility, and a high level of co-operation with the investigating authorities.

The nature, financial organisation and resources of the defendant business will also be considered. The court is told to look at the effect of a fine on the workforce -“on the employment of the innocent”. The guidelines say that the effect to shareholders will, “not normally be relevant” because “those who invest in and finance a company take the risk that its management will result in financial loss”. The effect on directors of a fine imposed on a company will not normally be a relevant consideration, and the guidelines say that any suggestion that prices charged by the defendant might be raised if it were fined is irrelevant “unless the defendant is a monopoly supplier of public services”.

These new sentencing guidelines reinforce the importance of having a robust health and safety management system, which is followed in practice, and is supported by trained and competent personnel. Workers must be trained, supervisors and managers must actively manage the rules and directors must resource and oversee its operation.

The Peninsula Health and Safety Management System, properly adopted and followed, will help you meet these requirements. Remember, it is no longer the case that directors and managers can avoid responsibility by simply delegating responsibility to others. They have to show active involvement in health and safety management.

If you need any further advice about the sentencing structure, or have any other health and safety queries, call the Advice Service on 0844 892 2785 and one of our specialists will be happy to help.

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