Revised Act spells increased penalties for law breakers
December 1st 2008 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. Higher fines are also now possible
for failure to meet safety regulations explains Chris
Green
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 e.g. those committed by individuals who
employ anybody under sections 2 to 6 of the Health and
Safety at Work etc. Act 1974 (HSWA) or health and safety
regulations, will now be imprisonable. This applies both in
the Magistrates' and Crown Court. There will be a
maximum of 12 months imprisonment or a fine not
exceeding £20,000 in the Magistrates' Court (this power is
currently limited to 6 months for cases heard in the
Magistrates' Court) or a maximum of 2 years imprisonment
or an unlimited fine for the more serious cases which end
up 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 even
for breaches of specific Regulations, or 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 or non
employees, so far as is
reasonably practicable, will
potentially face a prison
sentence for committing a
health and safety offence. As
liability can so easily fall on
employers particularly for
strict requirements
under safety
Regulations,
many small businesses might look to ensure that a
company or limited liability partnership employs anyone
rather than the owner of the business personally. Readers
will note that the burden of proving that what they have
done is reasonable and that they are innocent falls on
them and the usual presumption of innocence is reversed
in this situation.
Even so, the new penalties will also cover individual
employees who commit an offence under s.7 HSWA simply
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 managers do not escape the
new provisions. They too can face action under s.37 HSWA
and possible imprisonment if they close their eyes to or
know about the commission of an offence by a company
or if the offence is attributable to their neglect.
The Act brings in 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. Liability
may fall on an individual employer arising from
the act of one of his employees without him
knowing anything about it. The reader may
question whether alongside the risks to the
company of liability for corporate manslaughter,
potential fines of ten per cent of turnover and
director disqualification, any board member can
afford not to know and take advice about
these increased risks. Many Magistrates do not
deal daily with safety cases and will have
greater financial powers yet no
guidance as to the appropriate
sentence to impose. More articles from QTS: | 
