Health and Safety (Offences) Act 2008 raises the bar
After several failed attempts by Parliament to increase penalties for breaches of health and safety law, the Health and Safety (Offences) Act 2008 (the “Act”) came into force today.
The new Act makes three main changes - it raises the maximum financial penalties available to the courts, makes imprisonment an option for a wider range of health and safety offences, and makes certain offences currently only triable in the lower courts, triable in either the lower or the higher courts (meaning that more cases will be open to an unlimited fine and a term of imprisonment). The Act extends to both England & Wales and Scotland. Although it increases penalties for health and safety breaches, it does not impose any new obligations on employers by way of new offences. The principal duties of employers will remain as before under the Health and Safety at Work Act 1974 (“HSWA”).
Previously, under summary procedure, courts have been unable to impose fines higher than £20,000 for a breach of the HSWA, or a fine higher than £5,000 for the breach of a regulation (for example, a breach of the Management of Health and Safety at Work Regulations 1999). The Act changes the law by increasing the maximum fine for summary cases to £20,000, and introducing a term of 12 months imprisonment. For those on indictment, the existing unlimited fine has been buttressed by the availability of a term of two years imprisonment for individuals under the Act.
Until now, imprisonment has only been an option in certain very limited cases, such as where an improvement or prohibition notice had been breached. However, the Act now makes imprisonment available for a much wider range of offences, both in the lower and higher courts. That said, whilst the option of a custodial sentence may have been extended to breaches of the general duties imposed on “employers” under the HSWA, the extent of this change will be limited unless more directors, managers and officers are also prosecuted and convicted, along with the corporate entity, under section 37 of the HSWA (since “employers”, if companies, cannot be imprisoned).
The matter of imprisonment of individuals is significant, and of particular note are the sections of the HSWA relating to individual liability. An individual, whether a director, manager or worker, can be prosecuted under section 7 of the HSWA if they have not taken reasonable care for the health and safety of themselves or other persons affected by their acts or omissions. In addition, section 37 of the HSWA allows action to be taken against directors, managers and officers where a failure can be attributed to their “neglect, consent or connivance”. Under the new Act, following a breach of sections 7 or 37, a director, manager, officer or worker could now face a term of up to two years imprisonment.
The new Act, therefore, makes imprisonment (and higher fines) a reality for individuals following a breach of health and safety law, and companies (in particular, directors) should ensure they are well prepared by doing all they can to comply with existing health and safety legislation. Policies and procedures (and practices) should be evaluated to make sure that they are in compliance with the law, and appropriate measures and precautions should be put place. It may, in fact, be appropriate to arrange for a legal audit of procedures, to mitigate against the more stringent penalties now available in the event of a breach.
