The Health and Safety Offences Act 2008 came into force on 16th January 2009 and gives courts greater powers of sentencing and increases fines for those who breach health and safety legislation. PeopleMaps Affiliate Stephen Barker outlines the key changes and what Fleet Managers can do to prevent falling foul of the law and even winding up behind bars.
The Health and Safety Offences Act 2008 amends Section 33 of the Health and Safety at Work Act 1974 and raises the maximum penalties available to the courts in respect of certain health and safety offences. In short it;
- raises the maximum fine which may be imposed in the lower courts to £20,000 (from £5,0000) for most health and safety offences;
- makes imprisonment an option for more health and safety offences in both the lower and higher courts;
- makes certain offences, which are currently triable only in the lower courts, triable in either the lower or higher courts.
But perhaps most importantly for you as a Fleet Manager and fleet decision maker is that the new law represents a shift in attitude by the Government towards individuals in a company taking accountability for health & safety, especially where there is a fatality.
Coming in the wake of the Corporate Manslaughter Act and a clampdown by the Health & Safety Executive, this new Act will further turn up the heat on directors and senior managers. Breaches of regulations could in future become criminal matters. We are likely to see tougher punishments, including more jail sentences, imposed on people in positions of authority. They include jail sentences of up to two years for individuals found to be at blame. That’s a pretty scary thought and it’s supposed to be.
A deterrent to individuals
In the press release to announce the new Act the Chair of the Health and Safety Executive (HSE), Judith Hackitt, said: “It is right that there should be a real deterrent to those businesses and individuals that do not take their health and safety responsibilities seriously. Everyone has the right to work in an environment where risks to their health and safety are properly managed, and employers have a duty in law to deliver this”.
Note the reference to ‘individuals’. 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.
Labour MP Keith Hill, who introduced the Act, has said that imprisonment should only be appropriate in the most serious of cases. This is of little comfort given that sentencing is now a matter purely for Magistrates and Judges, who are without precedent and are yet to receive any guidance from the Sentencing Guidelines Council (which will be crucial).
Hill has said there’ll be a minimal increase in those going to jail as a result of this Act. Don’t be fooled. 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. Simply put: if we cannot prosecute individuals for corporate manslaughter, we’ll get them for breaches of Health and Safety.
And if you’re unfamiliar with why sentencing guidelines are important, here are the Sentencing Advisory Panel’s consultation document recommendations that accompany the Corporate Manslaughter and Corporate Homicide Act 2007 and are expected to be published in spring 2009.
- Fines based on average annual turnover – (possibly around the 10% mark that would amount to millions of pounds for major organisations).
- Publicity orders – including the placing of an advertisement in newspapers and trade journals or on television or radio as well as ordering letters be sent to shareholders and customers.
- Remedial orders, which would force convicted companies to implement a series of measures to ensure there was no repetition of the fatality.
Innocent until proven guilty?
Even more worryingly, the new provisions for imprisonment pose a serious Human Rights issue. 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.
While the Courts have already held that the reverse burden is compatible with the European Convention on Human Rights against companies, the question that arises in the context of this Act is whether the addition of imprisonment – as a possible penalty when a person is convicted of an offence to which the reverse burden applies – means that the reverse burden is not in fact compatible in these circumstances.
Unsurprisingly, the Department of Work and Pensions is of the opinion that the Act is compatible with the European Convention on Human Rights. This may well be subject to challenges in the Courts in due course.
Individuals in the firing line
The focus of the Corporate Manslaughter and Corporate Homicide 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 and Safety Executive. The Regulators will be seeking to flex their muscles.
If only for selfish reasons, those in charge of running the organization ought really to be asking the question: ‘How sure am I that the company is being run safely, and what my role in that respect is?’ For once, be that ‘doubting Thomas’ and 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?
An Example of breaches of health and Safety Offences act 2008
With employees whose jobs involve driving company vehicles, there are a number of risks that you as their employer could face. If they were caught using a handheld mobile phone (especially a company one) you could face prosecution for not providing a hands-free kit. In a worse scenario, if they have a crash and they or another driver is hurt or killed, you could be prosecuted if it was proved the vehicle was badly maintained, or the employee was forced to work long hours making them more tired.
On top of the jail sentences, the maximum fine that can be imposed by magistrates has increased to a staggering £20,000 – four times the current limit.
Health and safety legislation could be used to prosecute an employee whose management failings resulted in a car crash that was caused by, for example:
- Illegal/unsafe tyres
- A poorly maintained vehicle
- An employee being forced to work long hours
Employee drug or alcohol misuse can be a contributory cause of accidents at work, and a company’s management could potentially be held responsible if they haven’t taken sufficient action. Businesses have the ability and responsibility to proactively address this situation
Take action now
There are a number of things you should look at immediately to protect yourself;
- First ensure that you have the right policies in place.
- If you don’t want drivers using a handheld mobile, get a car kit installed, and have a policy stating they will be instantly dismissed if they are caught using a handheld mobile.
- Driver licence checking, on-line Psychometric Profiling, risk assessments, driver training, ‘Permits to Drive’ and telematics are all part of the arsenal of safe-driving interventions being used by many businesses to improve the safety of their employees who drive company or their own vehicles on work-related journeys.
- Be 100 per cent sure now that everything your business does is correct and legal. Double check service schedules and MOT test dates for vehicles. Ensure you are following official guidelines in all operations, even simple things such as staff using computers.
- Ensure that both you and employees have adequate health and safety training. Good courses will help you both identify risks and reduce them.
- Implement the PeopleMaps Accident Tracking and Analysis System (ATAS)*. ATAS records accident details and produces reports that will help you to understand when, how and why accidents are occurring so you can take preventative action. This could be as simple as changingstart times on the first day back after a rest period, identifying specific vehicles with unrecognised blind spots, etc. ATAS will help you pinpoint these ‘hot spots’ amid all the variables.
- Introduce an effective anti-drug/alcohol policy and drug/alcohol testing in the workplace.
Nothing to fear
To the many employers who do manage health and safety well, they will have nothing to fear from this change in law. There are no new duties on employers or businesses, and HSE is not changing its approach to how it enforces health and safety law. HSE retain the important safeguards that ensure that inspectors use their powers sensibly and proportionately and we will continue to target those who knowingly cut corners, put lives at risk and who gain commercial advantage over competitors by failing to comply with the law. Directors and senior managers can no longer afford to be lax about health and safety. They need to take a systematic approach, ensure risk assessments are carried out and proper procedures are in place to minimise risks and help protect their staff and the public at large.
Contact:
Stephen Barker, Affiliate Partner, PeopleMaps
Email: steve@bashp.eu
Comments on this entry are closed.