Using the new sentencing guidelines for health and safety offences, a court applies a formula to set the penalty, first deciding whether the defendant’s culpability was very high, high, medium or low. The next factor is a matrix cross-referring the likelihood the safety failing would lead to harm and how bad that harm could have been – from minor injuries to lifelong disability or death. The judge must also consider how many people were exposed to the risk of harm and whether the safety failing was a significant cause of actual harm before setting a final harm rating of 1 to 4.
The harm rating and culpability assessment is then applied to a series of tables with fine ranges for organisations with different levels of annual turnover.
The ranges are as follows:
micro-organisations (turnover less than £2m): £50 to £450,000
small organisations (turnover between £2m and £10m): £100 to £1.6m
medium organisations (turnover between £10m and £50m) £1,000 to £4m
large organisations (turnover £50m and above): £3,000 to £10m.
For each harm category at each culpability level there is a suggested “starting point” fine, ranging from £200 for low culpability, harm level 4, for a micro-organisation, to £4m for a large organisation with very high culpability and harm level 1. Judges can move below these starting points for mitigating circumstances, such as a good safety record and early guilty pleas. Aggravating factors, such as obstructing an investigation or cost-cutting at the expense of safety, will push the penalty up the scale from the starting point.
Charges can be brought against individuals under s 7 of the Health and Safety at Work Act where employees have put themselves or others at risk, ss 33(1)a and 33(1)c for failure to discharge a duty or to obey a regulation, and s 37 if managers’ actions or neglect have led to a breach.
There is a separate schedule for individuals convicted of Safety failings. This requires courts to decide whether culpability is very high (the person intentionally breached, or flagrantly disregarded, the law), high (actual foresight of, or wilful blindness to, risk of offending), medium (the offence is due to an act or omission which a person exercising reasonable care would not commit), or low (failings were minor but there were inadequate attempts to address the risk).
The courts then apply considerations of the likelihood of harm and seriousness of harm risked as per the guidance on corporate failings. Custodial sentences in the penalty tables range from 26 weeks to two years.
A separate set of guidelines for corporate manslaughter offences sets fine ranges from £180,000 to £20m.