The health and safety sentencing guidelines- why you shouldn’t bury your head in the sand and what to do instead
It’s been almost a year since the new health and safety sentencing guidelines were brought into force on 1 February 2016. Since then a great number of businesses have been severely hit for offences under the Health and Safety at Work Act 1974 and associated regulations. We have gathered three examples from the long list of cases for you to ratiocinate and reflect upon…
Guilty of culpable negligence...
ConocoPhillips (UK) Limited
Energy giant ConocoPhillips (UK) Limited was the first very large organisation to be prosecuted under the new regime after an offshore incident where 603 kilograms of gas spilled uncontrolled at a dangerous proximity to the 66 people working on the platform at the time. The organisation pleaded guilty to 3 offences under the regulations to which the Health and Safety at Work etc Act 1974 applies. The price to pay for such breach of the Law? At Lincoln Crown Court, just a week after the sentencing guidelines came into force, a fine of £1 million on each of the three breaches was demanded by the judge plus over £159,000 towards the costs of the prosecution. In October last year, ConocoPhilips (UK) appeal to reduce the radical fines was unequivocally dismissed. The judge outlined that the case was one of high culpability where the organisation systematically failed to address foreseeable health and safety risks that could potentially have led to catastrophic events into a larger scale. Does your business use safe systems of work and is your staff trained to perform them correctly?
Travis Perkins, a British builders’ merchant and home improvement retailer, were fined £2m following an incident where a customer was run over by a lorry causing him fatal crush injuries on November 2012. The company pleaded guilty but tried to dispute the proposed category of “high” harm under the sentencing guidelines, suggesting that the incident was “highly unusual”. Eventually, their level of culpability was categorised as “medium”, thanks to the adequate control measures in place which, however, were not adequately implemented. Travis Perkins have a reported business turnover of £2bn, categorising them as a “very large organisation”. The bigger the turnover the higher the fine. In other words, the larger your business scope is, the higher the fines that you will have to pay. Unexpected expenses that you are legally liable to pay along with acute loss of reputation are a significant penalty for organisations of any size. Is this scenario on your management radar?
The Alton Towers rollercoaster crash is probably the most memorable incident emphasising on the catastrophic consequences of lacking sufficient control measures when it comes to health and safety. Falling well short off the suitable safety standards has seriously affected many and, in particular, five passengers leaving them with life-changing physical and psychological scars which cannot possibly be compensated with money or an apology. Merlin Entertainments, who own the UK’s biggest theme park, admitted breaching the regulations and cooperated accordingly with the investigation. The record fine of £5m along with prosecution costs of £69,955.40 and negative publicity are altogether a critical lesson for business leaders of both large and small businesses. It should hopefully help all of us actually understand the legal, moral and financial importance of having an effective health and safety management system in place.
This is also probably the right moment to mention the significance of taking into consideration near misses and minor incidents and applying the correct safety measures to eliminate or reduce the possible risks they could bring. There was previous legal action against Merlin Entertainments after a fall from height accident at Lego Land in 2011. That, according to prosecution, was a “wake up call missed”.
Some "business-saving" advice
Learn the structure of the guidelines and how they might affect you
Let us get this straight- accidents will happen even if you have applied the necessary safety measures and reduced risks to a reasonably practicable level. There is always the “human mistake” element which is sometimes out of your grasp and comes completely unexpected. However, what can “soften” the harsh consequences for your business is your proactive response to the first three of the nine categories which the health and safety guidelines are broken down into.
The first category to take into consideration is the level of culpability you can be prosecuted for. Ranging from “very high” to “low”, for this section of the guidelines you should invest in developing a strategic health and safety management system. It ensures that any foreseeable risks are accurately assessed and the right precautions taken to avoid serious consequences. If you “plan, do, check and act” accordingly, even when an accident happens you can show evidence that you have made significant efforts to manage safely as a duty holder. This, on itself, will remarkably reduce your level of culpability and therefore your penalty.
The second category is related to the level of harm “risked” and the likelihood of this harm occurring. Note that you are legally responsible for assessing reasonably foreseeable risks and putting in place the necessary control measures to eliminate or reduce them so far as is reasonably practicable. What’s important to bear in mind here is that, in practice, duty holders would not be prosecuted for the actual harm caused by an incident. The breach of duty lies in the potential risk of harm which they overlooked and did not take into consideration before the incident occurred. Addressing risks before they cause harm and implementing safe systems of work will not only reduce the impact of a possible accident in legal and financial plan. It will also potentially eliminate or at the least reduce the likelihood of an incident happening.
The third category from a total of nine is about the financial “turnover” of the business that is being prosecuted. This means that the severity of the sentence depends on the size of your business. The bigger the financial stability of your company, the larger the fines that you will have to pay. For example, for a large company with a very high culpability and a very high harm, the sentencing range available to the court is ranging from £2.6m to £10m. M-I-L-L-I-O-N-S! Ouch!
Heads up! There is a safe haven for your business and it is into a qualitative, proactive risk management methodology. Steps can be taken in advance to reduce the level of culpability and the seriousness of harm and to keep them as low as possible.
Identify the health and safety risks within your organisation
You do this by making a detailed list of all the tasks that you and your employees manage, location, all of the people involved (contractors, employees, visitors, trespassers, members of the public), equipment used and activities performed. Keep in mind young workers, disabled and expecting mothers who may have special requirements which you should consider. Also, don’t forget migrant workers who operate their duties outside of your business premises- you are still responsible for them and will be held accountable if an incident happens.
There are six broad groups of hazards which can guide and help you distinguish the risks within your organisation: mechanical, physical, chemical, biological, environmental and organisational. The better the quality of the information gathered, the more objective your risk assessment(s) will be. Best tip for identifying health and safety risks is to involve people whose activities you are assessing- no one else will know better what the hazards are.
Estimate risks by ranking the likelihood and possible consequences
Once you have all of the hazards which might cause risk regarding the health and safety of your workforce, you would be able to estimate those risks. You do that by identifying who might be harmed and how. Remember, you need to consider not only the staff who work at your business premises but also:
Once you have identified the hazards and your staff activities you need to consider 3 other issues:
You can find out what the likelihood of a hazard to cause harm is and how serious the consequences can be by assessing all of the relevant factors that might contribute to an accident to occur. A helpful tool to do this exercise is a three-point scale:
After calculating the likelihood of an accident happening and the actual consequences of it, you are able to estimate the risk involved in a certain activity being performed:
Here is something from us that will help you along the way:
Identify the causes and the aggravating factors of a possible accident
You might be surprised to find out that incidents are rarely caused by a single factor. There are three types of causes that you should be aware of:
Note that there shouldn’t necessarily be an accident for your business to be in breach with the Law, therefore to be prosecuted. If HSE carry out an inspection within your organisation and discover foreseeable risks which have not been taken into account, you still might be liable to paying fines, one of which is the fee for intervention to cover the costs of the inspection. Carrying out internal audits on a regular basis will pay off in the longer term by giving you an idea about what you haven’t covered in terms of health and safety and what actions you should take… Which leads us to the next step that we advise you to take…
Issue a plan of action for eliminating or reducing the identified health and safety risks
Do you have a health and safety policy? Did you know that if you employ more than 5 people you are legally entitled to have a written one? Your health and safety policy is basically your plan of action which you spread across the whole organisation and let people know about their responsibilities, what they should and what they shouldn’t do, when and how to do or not to do it. A written health and safety policy can drastically reduce the severity of the prosecution as it clearly reduces your level of culpability, the level of harm “risked” and the likelihood of this harm occurring.
Apply the control measures that you came up with
This is the exact moment where you pause your business risk management analysis for a moment and act trying to eliminate the factors which could cause harm. Effective task management is the core ingredient for getting this right and having positive results from a management perspective. Failure to complete health and safety tasks when they are supposed to be completed is one of the main reasons why things get missed and accidents happen.
The second vital mechanism which certainly reduces health and safety risks is the proper training of your staff. It is your responsibility as a duty holder to ensure that your employees have been trained and instructed about how to do their job into a safe manner. Safe systems of work are clearly specified work methods designed to eliminate/control/minimise the workplace hazards and eliminate/reduce the likelihood of an accident happening. You need to make sure that you have developed such and that your staff have been properly introduced to them. Attention- SSOW can save lives!
Collect data and record your findings
This is a step that often gets overlooked along the way. Business leaders hit the critical point where all they have done so far has been pointless because it has not been recorded, therefore there is no evidence that an action has been taken in terms of health and safety. Don’t make this schoolboy mistake- risk management is all about impeccable documentation and administration too. When an incident happen and the enforcing authorities investigate, they use three types of evidence: documentation, interviews and observation. To this end, even if you have carried out your sector-specific risk assessments and instructed your staff about safe systems of work using proper training methods, this means nothing if you can’t prove it. Use your means of evidence intelligently- you never know when you will need them the most!
Review the results on a regular basis, measure performance and revise the control measures where necessary
This is the last step of your business risk assessment journey. But don’t loosen up- it is equally important to the previous ones. If you are wondering why, the answer is simple- because things change. When things change and you don't make the necessary amendments to meet the new requirements of your business, you put your staff at risk again. Previous actions won't matter because the situation will be different. Here are some examples of changes which will require your action in terms of health and safety:
When changes like these are identified, you will need to review your risk assessments and make the necessary changes. Remember, it is of a vital importance to keep your documentation up-to-date even where ratings are low in order to make sure they stay low.
Did you know that there are tools out there which can help you track and measure your health and safety performance in a visual and easy to react upon way? We offer our clients a real-time analytics tool as part of their subscription to S2B Online. It helps them track quality or safety metrics and keep a bird’s eye on the results from their desktop or mobile device. They can also generate automatic weekly, monthly or bi-monthly reports which helps them track their internal audit progress and the actual results of the control measures applied where risks have been identified. Organisational risk management is all about being proactive- it shows you run your business smoothly and take care of your staff which is exactly what you are supposed to do as a duty-holder.
When you have completed all of the steps above, it is time to draw the line and ask yourself: “Okay, what did I learn? How can I do things better?”
Safety at the workplace is all about sticking to some habits but not allowing the same habits to become risks and bite you back. When an employee of yours has been properly trained and has had the same responsibilities over a long period of time, they get used to performing their responsibilities. As a result, their development process comes to a point where they have reached the top of the learning curve. Unfortunately, there is a high level of risk in this mastering of operations at the workplace. The problem lies in the gradually decreasing level of attention that a worker pays to the actual process. They think that they can speed up the process without consequences and decide to skip the control measures which have been agreed and provided instructions for. An accident happens.
You may have all of the documentation necessary to prove that you performed your health and safety responsibilities and the judge’s decision may not be a harsh one. However, the question of what you did wrong will float in your head for a long time, especially if you feel a certain level of guilt and the consequences were serious. This is why it is imperative to never stop learning lessons and being open to make the necessary changes within your organisation when it comes to health and safety. Sticking to such type of gradually evolving culture will serve as an example to your staff and provide natural synergy with your good business management. And this will resonate positively in your overall corporate image, not just in a health and safety aspect.
To put it in a nut shell, the health and safety sentencing guidelines are here to stay and evolve. They are just like your business is supposed to be- progressing and expanding, continually trying to spotlight why an accident happened and who is to blame. You as a duty holder have two options to choose from: