The impact that the Health and Safety (Offences) Act 2008 could have on anyone working in the construction industry.
Any company or individual accused of health and safety breaches in future will face a much harsher regime of potential penalties as a result of the Health and Safety (Offences) Act 2008 which came into force on 16 January 2009.
BACKGROUND
For offences under the Health & Safety at Work etc Act 1974 there have been two levels of sentences. The top level has been the more serious offences – failure to ensure in so far as reasonably practicable the health, safety and welfare at work of employees [section 2] or non-employees [section 3] with maximum fines of £20,000 in the Magistrates’ Court (although unlimited fines could be imposed in the Crown Court). The lower level has been the raft of regulatory offences e.g. breaches of manual handling regulations. Maximum sentences here have been £5,000 in the Magistrates Court (unlimited in the Crown Court). It is worth noting that most health and safety prosecutions are dealt with in Magistrates’ Courts.
INCREASE IN FINES
Under the Health & Safety (Offences) Act 2008, the s2 and s3 offences continue to have an upper fine limit in the Magistrates’ Court of £20,000, but, the maximum fines for regulatory offences have now increased from £5,000 to £20,000.
The impact is severe, particularly as the HSE will generally prosecute several offences following an incident. So if a company is prosecuted where an employee is injured by a fall from a faulty step ladder for example, it can be anticipated that the employer will face prosecution for a section 2 offence (as above), plus regulatory offences such as failure to have a suitable and sufficient risk assessment, breach of the Work at Height regulations and failure under the Provision and Use of Work Equipment regulations. Previously in the Magistrates Court, the maximum fines would have been respectively £20,000 + £5,000 + £5,000 + £5,000 = £35,000.
In future,the company in this example would face the much more severe maximum fines of £20,000 x 4 = £80,000.
Imprisonment now applies to all health and safety regulatory breaches
IMPRISONMENT
Also of great concern are sentences of imprisonment for health and safety offences.
Previously, the power of imprisonment in the health and safety arena has been extremely limited, applying to failures to comply with improvement / prohibition notices or with court remedy orders. In one case the HSE served a prohibition notice on the use of a machine, but the directors did not comply which led to a serious accident. The directors were sentenced to imprisonment.
Imprisonment has also applied to fatalities in the workplace where it is proved that an individual has been guilty of manslaughter by gross negligence.
The power to imprison has been greatly expanded by the new Act. Individuals (e.g. directors, senior managers, employees) now face this for virtually every health and safety offence. Magistrates can imprison for up to six months for individual offences (maximum for combined offences 12 months) and the Crown Court, up to two years. Note, these Magistrates’ powers are soon set to increase to 12 months per offence (maximum for combined offences two years).
TWO IMPORTANT POINTS ARISE:
First, imprisonment now applies to all health and safety regulatory breaches, including for strict liability offences, such as failure to have a suitable and sufficient risk assessments or breaches of the Provision and Use of Work Equipment Regulations. Therefore, individuals can go to prison where they cannot raise a defence to the allegations.
Secondly, even in offences that are not strict liability, the burden of proof in health and safety is on the defendant to show that the steps they took were “reasonably practicable,” i.e. to prove they are innocent. Individuals facing imprisonment will have to fight to show they did not do it, rather than the prosecution having to prove their guilt.
CONCLUSION
Businesses and individuals must now be even more vigilant in ensuring their health and safety standards are maintained at appropriate level. If there is still an incident then expert legal advice must be sought at the earliest stage to provide guidance through the investigation. The combination of these will give the best possible chance of limiting fines and staying out of prison.
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