Health & Safety breaches – the true cost

 

We take a look at the Sentencing Council’s revised Definitive Guideline to Health & Safety Breaches and increased fine levels.

Safety professionals have for some time spoken of the hidden (and uninsured) costs of accidents at work, but recent changes in the Sentencing Council’s Definitive Guidelines for Health & Safety Breaches (effective from 1st February 2016) are already resulting in huge increases in the levels of punishments (a very visible and direct cost) being handed out by the courts.

Fine in cases after February 2016 can be ten times larger than before.

 

ORGANISATIONS – HEALTH & SAFETY BREACH FINES

In the new Guidelines, fines are calculated through a number of considered stages:

  • CULPABILITY
    • Very High – deliberate breach or disregard to the law
    • High –Serious or systemic failure within an organisation to address risks to Health & Safety, typically characterised by ignoring concerns of employees or others, failing to implement changes following other incidents, or allowing breaches to subsist over a long period of time
    • Medium – Systems were in place, but these were not sufficiently adhered to or implemented
    • Low – Failings were minor and occurred as an isolated incident
  • HARM
    • The level of harm or potential harm that an offence creates
    • How many people (employees and members of the public were exposed)
    • Whether the offence was a significant cause of actual harm
  • COMPANY SIZE
    • The financial standing (in terms of Annual Turnover or equivalent) of the offending company
  • REVIEW
    • Adjustment based on how proportionate the fine is, taking into account profitability of the company, savings they made through taking safety shortcuts, risk of the business closing as a result of paying the fine
    • Consideration of ancillary orders (remediation of specified failings, compensation etc)
    • To illustrate, take an example of a company with a £12M Turnover, deemed to have ‘Medium’ culpability in an employees death (or even a ‘near-miss’ that could have resulted in death) would now be looking at a fine in the range £300,000 to £1,300,000 before the review/adjustment stage. 
    • If the same company was deemed to have High Culpability, that range increases to £600,000-£2,500,000.
    • If you compare these figures with a 2014 case against the significantly larger Thames Water for a workers death, which resulted in them paying £361,000 in fines and costs, you can see the revised Guidelines will result in hugely increased fines being paid.

 

INDIVIDUALS – HEALTH & SAFETY BREACH FINES

The revised Sentencing Council’s Definitive Guidelines also address the penalties against individuals for Health & Safety breaches.

‘Individuals – Go directly to Jail – Do not pass GO, do not collect £200!’

Culpability and Harm are judged in the same way as the company fine, but the individual would also have to make a declaration of their finances.

Using the example given above, for Medium Culpability the penalties faced by the individual are described as “Band F fine or high level community order – 1 years custody”.  Note that the starting point is set at 6 months imprisonment and a Band F fine means 500% to 700% of the individuals weekly income.

 

CORPORATE MANSLAUGHTER

Utilising a two level view of Culpability and Harm (High and Low), the Corporate Manslaughter sentencing also uses the same company size categories as is applied to offending company fines for Health & Safety breaches.

There is still an adjustment/review process, but continuing the example of a death at a company with a £12M Turnover, a High Category offence would result in a fine in the range £1.8M to £7.5M, with a starting point of £3M.

There is much debate amongst Safety professionals about the overall impacts of the new Sentencing Council’s Definitive Guidelines, but one thing is clear, if there is any weakness in your Health & Safety regime (whether injury results or not) the financial price for getting it wrong is increasingly severe.

 

The Sentencing Council’s Definitive Guide can be found here, but for further details and advice, please contact your nearest TL Dallas branch.

Personal Injury Claims Reforms – April 2013 (delayed until July 2013)

Back in January 2012, the Government announced that the current Road Traffic Accident (RTA) portal scheme for low value claims up to £10,000 would be extended to Employers’ Liability (EL), Public Liability (PL) and motor claims with a value up to £25,000.

This briefing highlights the key provisions of the amended RTA Protocol and the new EL/PL Protocol. Further details will follow once the protocol is finalised.

RTA Protocol changes

The value of claims which will be dealt with under the scheme will increase from £10,000 to £25,000 with effect from the end of July 2013.

The level of fixed costs payable under the scheme is currently being consulted on, however are proposed to be reduced to: –

£500 for claims between £1,000 and £10,000 that settle without a hearing
£800 for claims between £10,000 and £25,000 that settle without a hearing
The timescales for admitting liability will remain at 15 working days

EL/PL Protocol

This will apply to an EL or PL accident or an EL disease claim where there is only a single defendant and where the value of the claim is up to £25,000. This comes into effect from the end of July 2013.

The Claimant will have to try to identify the Insurer and a Claims Notification Form (CNF) will be sent to that Insurer. If the Insurer cannot be identified then the CNF will be sent to the Defendant.

The Insurer or Defendant must send an electronic acknowledgement of the CNF the day after receipt.

There is then a period of only 30 working days for EL and 40 working days for PL, from the date of service of the CNF, for liability to be investigated.

For an admission of liability to be valid under the scheme it has to be a full admission i.e., without allegations of contributory negligence. If a full admission is not made then the claim falls outside the scheme

In EL claims details of the Claimant’s earnings must be provided 20 days after the admission of liability.

Damages will be increased by 10% to reflect the fact that success fees will no longer be recoverable

The level of fixed costs payable under the scheme is currently being consulted on, however are proposed to be reduced to: –

  • £900 for claims between £1,000 and £10,000 that settle without a hearing.
  • £1,600 for claims between £10,000 and £25,000 that settle without a hearing.

It is obviously going to be economically beneficial for claims to be handled within the scheme wherever possible, however if the claim does fall out of the scheme a separate matrix of costs is being consulted upon which includes a contingency element based upon a percentage of the Claimant’s Damages.

An unsuccessful Claimant will no longer have to pay the successful Defendant’s costs (known as Qualified One-way Costs Shifting or QOCS) unless the claim is proved to be fraudulent.

For further information and details please refer to your usual contact at TL Dallas or call us on 01274 465500.