Safety concerns amplify sanctions

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26/02/2016

Due to the growing emphasis placed on employers to safeguard their employees and contractors, the Sentencing Council has introduced stringent guidelines for the fining of organisations and individuals convicted of corporate manslaughter or causing serious injury or harm to employees and non-employees. The new guidelines for the courts came into force on 1 February 2016 and Todd Hallam, QEHS Director of specialist construction company Chalcroft, member of the Expert Group with the BFFF and the Operations & Safety Committee for the UKWA, looks at what this means for building or refurbishment projects and the companies commissioning them.

Provisional figures from the Health & Safety Executive (HSE) indicate that 142 people were fatally injured at work in 2014/15 – a slight rise on the previous year, and equivalent to 0.46 deaths per 100,000 workers. Almost a third of these deaths have been attributed to the construction industry alone¹, making it the single largest contributor to workplace fatalities in the UK.

In a bid to not only reduce the number of fatalities but also foster a safer workplace and more engaged workforce, the Sentencing Council has reviewed the framework for applying penalties to ensure that fines applied are a true deterrent and emphasise the importance of protecting workers through creating a safe working environment. It may be the case that injuries or deaths occur due to a desire to cut costs – a reduced training budget, lack of senior management buy-in, lack of monitoring or control or an under-staffed health and safety team – and a major effect of the new sentencing guidelines means that fines will be set at such a level as to have a major economic impact upon the culpable business. A crucial aspect to the new guidelines is the fines are based on the annual turnover of a company not profit. Companies with an annual turnover of £50m+ can face fines of up to £20m in addition to further sanctions in extreme circumstances (for example where a company is found to be deliberately endangering employees or ignoring regulations) and even imprisonment for individuals found to be in breach of their personal duty to employees. A key point to note is that, for companies who significantly exceed £50m turnover, no maximum fines are listed and with as yet no precedent set, the financial implication of causing serious injury or death could be extreme.

Fatalities characterised as corporate manslaughter vary by industry sector, and may also include the death of a member of the public due to unsafe working practices. Examples of corporate manslaughter and injury within the construction industry could and have included the following:
• A worker or pedestrian killed or injured by tools or materials falling from scaffolding as a result of poor training or insufficient safety measures
• A death or injury caused by faulty work equipment, including power tools or vehicles such as forklifts
• Insufficient training for working at height or in enclosed spaces which results in a fall or suffocation
• Under provision of personal protective equipment (PPE) causing an injury or fatality.

To achieve the consistency and impact desired, the new sentencing ranges also take into account the severity of the offence and the level of responsibility. Another major consideration is the possibility that harm could also have come to others – if for example a worker suffers electrocution from a live cable which is found to have been exposed for some time, courts will also take into account how many people were present in the vicinity during the time period in question to determine how many others could have been injured or killed. Turnover is therefore only one of a variety of factors which will be taken into account, but provides a useful starting point in terms of an impactful punishment. Other factors will also be taken into account, including the financial situation of the business.

In order to determine a fine, courts will now work through the following nine steps:
1) Determine the offence category in terms of culpability and harm factors
2) Place the responsible organisation/employer within a suitable category range (looking at annual turnover) and determine a starting point for the fine
3) Check if the fine is proportional in terms of the financial situation of the organisation/employer
4) Take into account any other factors which may warrant adjustment to fines
5) Consider the case for reduction, such as assisting the prosecution
6) Make reductions for guilty pleas as necessary
7) Consider whether to make ancillary orders, such as remediation, forfeiture or compensation
8) Take into account other sentences/fines if more than one offence is under consideration
9) Give reasons for all aspects of the sentence and explain its effects.

From the point of view of an organisation engaging a main contractor for a new build or refurbishment project, the responsibility lies with them as much as with the construction company, and even more so now with the CDM 2015 Regulations and the duty on a client to appoint a Principal Designer, and fines will be imposed accordingly. 

Organisations engaging the services of construction contractors should therefore look for robust health and safety policies and procedures in the form of an efficient QEHS department, training and monitoring programmes, robust risk assessment processes and evidence of qualifications or courses completed, and a track record of thoroughly investigating and rectifying issues. As health and safety legislation and standards are subject to fairly frequent change, construction companies should also strive to be at the forefront of developments as and when they happen, modifying policies accordingly and making recommendations to organisations on how projects may be affected by changes.

To find out more about Chalcroft’s QEHS expertise and activities, please visit www.chalcroft.co.uk/quality-environmental-health-and-safety or email toddhallam@chalcroft.co.uk

1 http://www.hse.gov.uk/statistics/pdf/fatalinjuries.pdf