New Sentencing Council’s definitive guidelines now published
What are the New Sentencing Council’s guidelines?
At HR Support for Business I endeavour to give my clients the information of forthcoming legislation so they have time to make a plan to protect their businesses and ensure their legal compliance. Here is an overview of the key points I feel my clients should be aware of with regards to the Sentencing Council’s New Guidelines. Of course if I can help in any way please just contact me.
Published on 3 November 2015 this new sentencing guide covers health and safety, corporate manslaughter and also food safety and hygiene offences. It delivers a continued focus to increase the level of fines and the penalties able to be imposed by the Courts to both businesses and individuals.
At its core is the aim of revolutionising punishment for health and safety offences. Many have already expressed the view that we will now see more directors, managers and other employees being handed custodial sentences in the future due to the significantly lower level set for potential imprisonment.
The new Guidelines come into effect on 1 February 2016 and will be applied regardless of the date the offence was committed. Full details are here: Health and safety offences, corporate manslaughter and food safety and hygiene offences
To help here is what I feel are the key points to be aware of:
The intension is clear. To give the Courts in England and Wales a comprehensive systematic sentencing guideline for regulatory offences in the areas of Health and Safety, Corporate Manslaughter and also Food Safety and Hygiene.
The aim is to ensure there is a clear, transparent and consistent sentencing approach. The focus is to first remedy the fact that previously it was considered fines were disproportionate to the financial resources of some businesses. And they did not consistently reflect the seriousness of the offence. Also, they did not always focus on the individuals who committed them.
The overall aim is to send a clear message to everyone that non-compliance will be met with severe penalties. So not knowing about these Guidelines and their potential impact, or not taking them seriously, may deliver some very unwelcome surprises to businesses and some individuals.
1st key change – It is now easier to fall into the ‘very high’ culpability category
So the first step within this new process will be to allocate a culpability factor which will drive the allocation of a recommended penalty. The ‘very high’ category is automatically triggered if there has been a ‘deliberate breach or flagrant disregard of the law’. The reality is that it may be all too easy for many to potentially fall into this category.
For instance; a potential safety problem has been identified, or non-compliance known – but due to perhaps other business priorities no action has yet been taken. Sound familiar? This would fall into the ‘deliberate breach’ category because the hazard and need for action was known. So if prosecuted many may now all too easily find themselves at the sharpest end of the new sentencing guidelines for not taking the required action when first identified – whatever the reasons.
2nd key change – A change from outcome to risk based sentencing
This is quite an important change. The level of ‘harm’ will now be based upon the risk of harm to others – exacerbated if actual harm did occur. This change reflects the view that the punishment should more closely match the exposure to risk, not just the outcome. This basically means that exposing people to a serious risk of harm will be taken much more seriously now.
Previously breaches that actually caused serious injuries and death have been much more likely to be prosecuted than an exposure to a serious risk of harm. So in the future if you expose a person to a high risk of death or serious harm in your business it will warrant a punishment more closely aligned to when a fatality or serious harm has occurred.
As a guide, if a director or employee is aware of the breach of law and exposes people to at least a medium likelihood of death or serious harm, the reported starting point seems to be a risk of 6 to 18 months imprisonment (dependent on all factors). The guidelines are also much clearer for corporate manslaughter sentencing. There will be no need to determine the level of ‘harm’ as prosecutions will always follow a fatality. It will also look at the ‘culpability’ level which now falls into just two categories: ‘serious’ and ‘more serious’.
3rd key change – Penalties will be proportionate to the turnover of a business
- Micro – Turnover not more than £2 million
- Small – Turnover between £2 and £10 million
- Medium – Turnover between £10 and £50 million
- Large – Turnover over £50 million.
And, a recent judgement against Thames Water Utilities in July 2015 has also paved the way for very large companies to be fined in excess of £100 million for the most serious offences.
Basically the Guidelines are clear; fines must be significant enough to have a real economic impact. It is felt that they should be at a level so as to send a clear message to directors, management and shareholders that none compliance to the law does not pay and the risk is not worth it.
4th key change – Health and safety offences – for individuals
Individual culpability and the level of harm measurement will now mirror those used for a business. There are also similarities with the use of a matrix to determine a starting point and category range for a suitable punishment.
There is a clear message within these Guidelines that there is an increasing possibility of custodial sentences being applied to individuals who are found guilty. As an example, I have read that an offence involving low culpability, but a high level of harm would expose an individual to the risk of a 26 week prison sentence. We will see as cases start to be dealt with under these new Guidelines the real impact on individuals.
Mitigating circumstances will still continue to be taken into account. There is a range of factual elements listed that will enable any aggravating and mitigating factors to be taken into account. They will cover such areas as the ability of the business to improve health and safety conditions, early cooperation and an early guilty plea.
So the base will be a measurement of the ‘culpability’ and the ‘harm’ aligned to the seriousness of the offence. Then the actual size and resources of the Defendant will be looked at. And then finally any mitigating circumstances put forward to be taken into account.
So what action should you take?
It will take some time after the Guidelines come into force next February to assess their actual impact. It is clear however that they pose a real increased business and individual risk.
As a starter you will need to review your employment and health and safety procedures in place for legal compliance. Then evaluate how effective they are in delivering a safe, healthier and legally compliant working environment. Finally make an action plan.
Part of this review must at least include a review of your Employment and Health and Safety Handbooks.
- Are your policies and procedures compliant to current law and best practice?
- Do they align to support a compliant and safer working environment?
- Are your procedures clear, proportionate and understood and adhered to by all?
- What is your evidence to support this?
- And then evaluate if they adequately identify, manage and control risks within your business.
To help I can undertake an email review of your Employee and Health and Safety handbooks and make recommendations for you. Please contact me and we can discuss how I can help you. You may also wish to review your litigation strategy in the unfortunate event that you find yourself subject to prosecution.
Any queries or if I can help you in any way please do not hesitate to contact me for a chat.
Those who know me will know that employment, HR and health and safety are my thing. However below is a very brief overview of the main key take away points within the Guidelines impacting on food safety and hygiene. Of course if this is of particular interest to your business the link to the full Guidelines (above) will tell you more.
Food safety and hygiene
As an example:
- placing unsafe food on the market;
- inadequate traceability;
- food recalls and withdrawals;
- failure to adopt systems based on HACCP principles;
- misleading consumers through labelling, advertising and presentation of food;
- misleading a consumer regarding a food’s compliance with religious or personal beliefs.
The Guidelines have also widened the most serious level of harm to include not just a serious adverse effect on individuals, but to include where there is a high risk of a potential adverse effect.
There has also been a reduction in the mitigating factors that will be taken into account. One example, previously a business who fell just short of establishing a due diligence defence could use evidence of its systems and procedures in place. This will no longer be considered as a mitigating factor.
The approach to sentencing mirrors health and safety offences (above) with the same concepts of ‘culpability’ and ‘harm’. There is also an increased possibility of custodial sentence for individuals for offences involving ‘very high’ or ‘high’ culpability.
I hope this has helped to highlight the potential important impact these Guidelines will have. Not only for businesses but for individuals working within a business. And most importantly given you the time to plan.
And, as I have already mentioned if I can be of any help please do not hesitate to contact me.
Carole Thomson FCIPD, Tech IOSH – Freelance HR Consultant