Health and Safety (Offences) Act 2008 update

01/04/2009

By Douglas Skilton, Associate in Dispute Resolution.

The Health and Safety (Offences) Act 2008 ("the Act") came into force on 16 January 2009.

The Act has passed from Private Members Bill to the statue books relatively unnoticed. However, businesses should take note because the Act is a signal to the Courts to impose tougher penalties for breaches of health and safety legislation.

The Act does not create any new health and safety obligations, it simply deals with penalties for breaches of existing legislation. The effect of the Act is to increase fines and provide the Courts with greater sentencing powers.

The maximum fines that can be imposed by Magistrates for more minor health and safety offences has been raised from £5,000 to £20,000. As before, there is no limit to the aggregate fine that can be imposed by Magistrates in respect of a number of different offences. Judges in the Crown Court still have power to impose unlimited fines.

However, more significant is the fact that the Act also makes imprisonment a sentencing option for most health and safety offences. This means that directors, managers and employees found guilty of breaching health and safety legislation could face imprisonment. The maximum term is one year in the Magistrates' Court and two years in the Crown Court.

The Act represents a further change in emphasis away from looking at purely corporate accountability, to providing the Courts with a range of tough sentencing options to punish individuals for their acts or omissions in the workplace. The trend of focusing on the failures of individuals within an organisation started with the introduction of the Corporate Manslaughter Act last year, which makes it easier to prosecute businesses following a work related fatality.

The offence of corporate manslaughter is based on failures in the way in which an organisation's activities are managed or organised. Although individuals cannot be guilty of corporate manslaughter, employees can be prosecuted for breaches of health and safety legislation in conjunction with the prosecution of their employer for corporate manslaughter. Directors and senior managers are particularly vulnerable, given that their conduct will necessarily be under scrutiny in investigations into corporate manslaughter offences.

With the risk of ever increasing fines and now the imprisonment of individuals as a sentencing option for most health and safety offences, it is important for directors and managers to think about what practical steps they can take to protect themselves and their businesses.

Risk assessments are crucial to accident prevention - they inform what reasonably practical steps an employer must take in order to discharge its health and safety duties. Line managers on the ground should be responsible for preparing risk assessments because they will have a better idea of what is involved in undertaking the relevant tasks. In turn they should consult employees, and the risk assessments should be revised and updated periodically in the light of issues they raise. The risk assessments need to be simple and practical because there is little point in having a perfect risk assessment on paper which employees ignore in practice.

Businesses would also be well advised to check the extent of their insurance cover and in particular whether senior managers and directors will be covered by the company policy in the event they are personally prosecuted.

Another recommendation would be to consider obtaining legal advice on your internal incident/accident investigation procedures. Is your incident investigation report in a format which allows you to legally withhold it from being disclosed to prosecutors? This could be vital if the report highlights particular shortcomings which resulted in an accident.

Finally, businesses should think very carefully about whether to attend any interview under caution to which they may be invited by prosecutors. Advice should be sought on whether or not it is in your best interests to attend. Details of the areas of intended questioning should always be obtained first, and a full written statement prepared dealing with the difficult points in the best way possible.