We were recently instructed in two recent Health and Safety Act cases and the issues that arose highlight the need for companies and/or directors to approach any incident with the utmost seriousness and be extremely cautious in discharging their responsibilities.

All organisations and office holders are impacted by the Act. All cases need to be considered with a worse case scenario in mind, hence the need to regard the Sentencing Guidelines from the outset. The Act assists with budgetary issues and many insurers and Trade Unions will insist that regard is had to the overall cost liability.

Sentencing Council Guidelines

While the two cases applied to two different industry sectors – agricultural and construction –  and involved very different breaches, the starting point for sentencing in such cases is based on the Health and Safety Offences, Corporate Manslaughter and Food Hygiene Offences Definitive Guidelines issued by the Sentencing Council. These guidelines are effective for all cases that now come before the court.

It is likely that once the Health and Safety Executive (HSE) have dealt with the initial incident, guidance will be provided for future safe systems of working, if appropriate.

A level of co-operation will invariably be required to ensure that safe systems are put in place or maintained. This is important to ensure that no later criticism can be attached to the company, which could have a detrimental impact on financial penalties.

At the outset of any initial investigation, it is vital to seek expert legal advice. Ensuring that the response to the incident is proportionate and complies with recognised standards in the industry will be an important factor in sentencing. Of course, what is industry standard will vary on a case by case basis.

If the HSE invite the company officers to attend a formal interview, this should highlight (if not already apparent) that the incident is not being treated as an accident, but that criminal liability is suspected. Any interview is governed by the Police and Criminal Evidence Act 1984 that provides an absolute right to have a solicitor present for the interview process.

Important tactical decisions will need to be made from the start as to who, if anyone, attends the interview and how the interview process is then dealt with. In the recent cases we dealt with, the incident in the construction sector resulted in us advising no one to attend for the interview process. For the interview in the agricultural sector, we did advise that someone should attend, accompanied by one of our solicitors.

During the investigatory stage, considerations will apply as to the instruction of experts in the industry sector and whether to share the results of that with the HSE to try and achieve a resolution. Again, each case will vary, and expert legal advice is needed to ensure that the tactical approach is correct.

Criminal courts

If a prosecution follows, all cases will initially be heard at the magistrates’ court. Many cases remain in the magistrates’ court and will invariably be dealt with by a district judge. The decision as to which court deals with the case is important and needs to be made well in advance of that initial hearing.

In the two cases in which we were recently instructed, each required a careful approach to the advice offered on which court the case should be heard in and the plea which should be entered – whether guilty or not guilty.

The case in the construction industry remained in the magistrates’ court. We had already considered the breach and advised the company that the safety systems they had in place did not comply with the Work at Height Regulations 2005 (the ‘Fall from Height’ regulations).

The agricultural case involved a fatality and involved a significant level of expert evidence.  As such, the case was always destined for the crown court.

Both cases progressed in different ways, but ultimately resulted in a sentencing hearing. The Sentencing Guidelines provide different categories for sentence that depend on several inter-linked factors – including culpability and harm.

While the guidelines are intended to be accessible, they do require legal experience to interpret and ensure that the overall approach is consistent and with a view to ensuring that the financial penalty is proportionate.

Assessing culpability

The starting point in a case is always an assessment of culpability. This can fall into one of four categories from very high to low.

The decision as to which category is applicable can have a significant monetary impact and requires a level of analysis, and potentially the use of expert evidence to assist in negotiations with the HSE prior to the sentencing stage.

For example, the difference between high and medium culpability for a small company (defined as a company with an annual turnover of between £2 million – £10 million) can increase the range of the fine from £12,000 at its lowest to £450,000 at its highest.

As is apparent, the approach to culpability needs to be carefully considered to ensure this factor protects the organisation. The need for a sensitive but robust approach can be the difference between a company being able to remain trading or not.

Assessing the level of harm

The other statutory factor that the court must have regard to is the level of harm. This is a multi-stage test and initially relates to the actual harm actually caused, coupled with the likelihood of harm being caused.

The nature of injury informs the first element of the test, so if a death has occurred, it will place the offence in Level A. If that is then coupled with a high likelihood of harm being caused, the offence will fall into Harm Category 1. If the injury was not serious and the risk of harm was classed as low, then the offence would fall into harm category 4.

A further stage in the harm categorisation element of the sentencing process then deals with whether the offence exposed a number of workers/members of the public to a risk of harm and whether the offence was a significant cause of the actual harm that resulted. This element of the multi-stage process can result in the offence category moving within the range of penalties or moving up a category within the Guidelines..

Using a high culpability offence as a starting point within a small company, if the court were to find that the offence fell at the top end of the range for harm, the penalty range extends to £1million. Conversely, if the offence was classed at the bottom end of the range for a Category 4 offence, the penalty would be £12,000.     

Additional factors come into play in assessing the overall level of penalty. These will vary according to several factors, such as the health and safety record of the company, the approach to the investigation and the plea that was entered. The relevant factors are case/industry specific.  

In the recent case of the building company, the company received a penalty of £30,000, notwithstanding the HSE suggesting it fell into the sentence range with a starting point of £250,000.

The case was heard at the magistrates’ court and following legal argument, the judge accepted the representations put forward on behalf of the company.

In the agricultural related case, the penalty imposed exceeded £400,000, as a death had resulted due to the regulatory breaches. We instructed a specialist barrister to represent the company due to the factors involved and the issues that the case raised.

The need for experienced specialist legal representation in HSE cases is essential. The penalties are designed to be draconian and can have an impact on the ability of an organisation to remain trading.  

Lawtons solicitors Stephen Halloran and Nick Seeley dealt with the recent Health and Safety Executive cases and are points of contact should you need legal advice in connection with a HSE investigation or prosecution.