Local Government - March 2009
Health and safety
Directors and Senior Managers could be jailed
if they don’t look after their own safety or make sure that others
aren’t put at risk. A new Act passed on 16 October 2008 means that
anyone who is convicted of a safety offence can now be imprisoned
and not just fined, as before.
The Health and Safety (Offences) Act 2008,
comes into force on 16 January 2009 and only applies to offences
committed after this date.
Most offences such as those committed by
individuals under sections 2 to 7 of the Health and Safety at Work
etc. Act 1974 (HSWA) or health and safety regulations, will be
imprisonable. This applies both in the Magistrates’ and the Crown
Court. There will be a maximum of 12 months imprisonment
and/or a fine not exceeding £20,000 in the Magistrates’ Court (this
is currently limited to 6 months due to the current Magistrates’
Court powers) or a maximum of two years imprisonment and/or an
unlimited fine in the Crown Court.
The Act will also increase the financial
penalty for regulatory offences from £5,000 to £20,000 in the
Magistrates’ Court. Alternatively, there will be the option
for Magistrates’ to impose 12 months imprisonment for regulatory
offences, two years in the Crown Court.
This means that an employer who runs their
business in a way which does not look after the health and safety
of their employees and non employees, so far as reasonably
practicable, will potentially face a prison sentence for committing
a health and safety offence. Many small businesses may look
to ensure that a corporate body employs anyone rather than the
owner of the business personally.
The new penalties will also cover individual
employees who commit an offence under s.7 HSWA by failing to take
reasonable care of fellow employees e.g. an employee who fails to
follow his training and causes an injury to a fellow employee or
those engaged in horseplay.
Directors and other senior persons do not
escape the new provisions. They too can face action under
s.37 HSWA and will also now face imprisonment if they can be shown
to have consented or connived with the commission of an offence by
a company or if the offence is attributable to their neglect.
Although the Act does not create any new
offences or legal duties, these are major changes to the penalties
for health and safety offences. Previously, a custodial
sentence was only available for a very small number of
offences. Generally, a custodial sentence for health and
safety failings was only available following a death in the
workplace and if the person charged had been grossly negligent,
neither of which is a requirement now.
The HSE have welcomed the new Act and although
its Chair, Judith Hackitt, has said that “important safeguards are
in place to ensure these new powers will be used sensibly and
proportionately,” expect to see cases following fatal accidents
which occur early in the new year (especially where profit has been
put before safety) resulting more often in terms of
imprisonment.
Chris Green
Partner
Weightmans LLP