Is it a criminal offence to breach Health & Safety law?


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Created on April 24, 2020

Yes. Health and Safety law gives rise to both civil and criminal liabilities.

Broadly speaking, civil liabilities include claims being brought by an injured person (or their estate or dependents) in negligence, vicarious liability or occupiers’ liability. Usually, the consequence will be corporate liability for monetary compensation, for which insurance is available.

However, breach of the provisions of the Health and Safety at Work etc Act 1974, and/ or a breach of Health and Safety regulations, is also a criminal offence for which an individual or company or both can be prosecuted in the criminal courts.

Often a criminal prosecution and a civil claim will run in tandem where a health and safety breach has occurred and, as you might expect, the consequences of a criminal conviction can have a significant impact on the civil claim.

Who conducts the investigation and brings the prosecution?

Whereas most criminal offences are usually investigated by the police and prosecuted by the Crown Prosecution Service, health and safety breaches will usually be enforced by the Health and Safety Executive (HSE) or Environmental Health Officers (EHO).

Prosecutions may be dealt with in the Magistrates’ or the crown court. For more information about what to expect if you are facing a criminal prosecution, including a timeline and court procedure, click here.

The Law

The Health and Safety at Work etc Act 1974 places duties on corporations, as well as imposing personal liability on employers, employees, directors and senior managers. In addition to the Health and Safety at Work Act 1974, there are a number of Health and Safety Regulations, breach of which may also be a criminal offence.

The Act places a duty on corporations to ensure the health, safety and welfare of employees and to ensure the health and safety of non-employees. This duty involves managing and reducing risk “so far as is reasonably practicable”. Notwithstanding the presence of the word “reasonable”; this is a high standard to meet.

Nobody has to be hurt for an offence to be committed under the Act; there simply has to be a risk of harm.

Therefore, the duty holder must think about whether there is a possibility of danger and take all reasonably practicable steps to protect against it. This involves taking positive steps to manage and control the risk. They don’t have to be able to predict that a particular accident will happen; but they are expected to think about risks which are not obvious and to show that it was not reasonably practicable to do more than what was in fact done to protect against the risk. The foreseeability of danger is therefore relevant to whether reasonably practicable steps have been taken.

What are the consequences of a Health and Safety prosecution?

A criminal prosecution for a health and safety breach can have far reaching consequences.

A breach of the provisions of the Health and Safety at Work etc Act 1974, and/ or a breach of Regulations, is a criminal offence punishable by a fine or imprisonment, or both.

In addition to the sentence that the criminal courts can impose, a health and safety prosecution can give rise to both corporate and personal liability, may lead to adverse PR and is disclosable in tenders. The financial penalties can be devastating to a business and it is not possible to insure against them.

What sentence will I get if I am convicted of a health and safety offence?

A breach of the provisions of the Health and Safety at Work etc Act 1974, and/ or a breach of Regulations, is a criminal offence punishable by a fine or imprisonment, or both.

In order to determine the sentence, the Magistrates’ or crown court will have regard to the relevant sentencing guidelines. In 2016 the Health and Safety Offences, Corporate Manslaughter and Food Safety Offences Definitive Guideline came into force, which set out the steps that the court must follow in order to determine the appropriate sentence.

First, the court must determine the offence category by assessing culpability and risk of harm. This means that the court will look at how guilty the defendant is. Factors indicating high culpability (and therefore making a defendant more guilty) include, for example, failing to put in place measures recognised as standards in the industry, ignoring concerns raised by employees or others, failing to make changes after prior incidents and allowing breaches to subsist for a long time. Whereas, factors indicating lower culpability include instances where significant efforts were made to address risk, but the efforts were inadequate on this occasion or where there had been no prior event or warning indicating a risk.

Having determined the offence category, the court is then able to identify the starting point for sentence, by cross referencing the offence category with the annual turnover of the business (when dealing with an organisation). The finances of a linked organisation should not be taken into account in determining the level of turnover, but may be relevant to the defendant’s ability to pay (see below).

Next, the court must take into account any further features of the offence and offender which justify an adjustment to the sentence (either upwards or downwards) before finally considering whether the proposed fine is proportionate to the overall means of the offender.

When dealing with individuals, other types of sentence (as well as financial penalties) are available to the courts. These include community orders and, in the most serious cases, imprisonment. For information relating to what the different types of sentence entail, click here.

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