Beware the Health and Safety Offences Act 2008
The Health and Safety (Offences) Act 2008 quietly received Royal Assent on 16 October last year, and came into force on 16 January. This Act has progressed relatively unnoticed by the business community despite the potentially serious ramifications for those with any responsibility for Health and Safety at work.
The latest legislation means that breaches of Health and Safety law may threaten your liberty. The Health and Safety (Offences) Act 2008 makes imprisonment a reality for most Health and Safety offences. Previously, imprisonment was an option only for offences committed in three limited areas, and was rarely used (an example being the offence of contravening an improvement or prohibition notice). It is now a very different story.
In addition to making imprisonment an option for Health and Safety offences in both the Magistrates and Crown Courts, the Act has raised the maximum fine which may be imposed by the Magistrates Courts to £20,000 for most Health and Safety offences (a significant increase, for example, on the fine for a breach of Health and Safety regulations, which stood at £5,000). It also makes certain offences previously triable only in theMagistrates Court now triable either in the Magistrates or Crown Courts.
The objective behind the Act is to turn up the heat on sentences for Health and Safety offences so that they become a sufficient deterrent, and deal appropriately with individuals committing offences.
Under Health and Safety law, any individual in the workplace – including employees, management and directors – can be found guilty of Health and Safety offences which, under the new law, will bring with them imprisonment as an option for punishment. The maximum term of imprisonment is two years, which can also be accompanied by an unlimited fine.
Given the new focus on the acts and omissions of senior managers in prosecutions brought under the new Corporate Manslaughter and Corporate Homicide Act 2007, it’s likely that the Prosecution will be tempted to send more and more senior managers away at the same time, particularly when public perception plays such an important role in high profile and multiple fatalities.
The new provisions for imprisonment mean that individual defendants facing the possibility of imprisonment will be facing what’s called a ‘reverse burden of proof’. As the law stands, the Prosecution has to prove very little – with respect to the general Health and Safety offences – before the burden of proof switches to the Defendant to show that he or she fulfilled their duty so far as was reasonably practicable.
The Act doesn’t impose additional duties upon individuals or businesses – it simply deals with penalties for existing offences. That said, with the stakes being considerably higher, businesses and individuals (particularly those in management) should be ever more concerned to fulfil their Health & Safety obligations. This means ensuring that adequate and effective systems and procedures are in place and, importantly, that they’re being followed.
Individuals – again particularly those in management – will want to make sure that their responsibilities with respect to Health & Safety are clarified and agreed with their employers such that they can be confident they’ll be able to fulfil their individual duties.
The focus of the Corporate Manslaughter Act 2007, and now this legislation, is on the acts and omissions of the individual. This change of emphasis away from solely looking at corporate culpability to blaming the individual within the company is going to literally shock managers and directors who become subject to criminal investigations by the police service and the Health & Safety Executive. The Regulators will be seeking to flex their muscles.
If only for selfish reasons, those in charge of running the organisation ought really to be asking the question: ‘How sure am I that the organisation is being run safely, and what’s my role in that respect?’ Make sure that, so far as you can, the risk assessments, the safe working practices and the training are all in place and being followed. Do that and the emphasis of the new law will turn back to the liability of the company and not yourself.