If a regulator believes that your organisation has committed a material breach of health and safety law, they may take enforcement action against you.
Their options include providing you with informal advice, serving you with an ‘improvement notice’ (requiring you to take particular actions by a certain date) or ‘prohibition notice’ (prohibiting you from undertaking a particular activity for a defined time period) or undertaking a more thorough investigation and/or prosecuting the organisation. Failure to comply with an improvement or prohibition notice is a separate offence for which an organisation can be prosecuted.
Health and safety offences are criminal in nature, so a successful conviction following a prosecution will lead to the company having a criminal record. Additionally, under the Sentencing Council Guidelines for health and safety offences, the fines levied after a successful conviction are potentially unlimited.
For organisations with a turnover between £2m and £10m, fines can range from £100 (for the most minor breaches risking minimal harm) to £1.6m (for the most flagrant breaches with a high risk of death). A turnover of between £10m and £50m can result in fines of £1,000 to £4m. For those with a turnover above £50m, fines can range from £3,000 to £10m.
Individuals convicted of health and safety offences could receive a custodial sentence and/or fine. For offences where the individual fell far below the legal standard and this resulted in a risk of serious harm, an individual can face up to two years in prison. If a fine is levied against an individual, this is determined by reference to the seriousness of the offence and the individuals’ weekly income.
It’s important to remember that your organisation may have insurance that provides cover for investigating alleged breaches and/or defending health and safety prosecutions. However, as the fines arising from a successful conviction under health and safety law are criminal in nature, they cannot be insured. They will therefore be payable — in full — by a successfully convicted organisation or individual.
The regulator is also entitled to recover its costs for investigating and the enforcement of health and safety law when a material breach has been identified. For complex investigations — particularly those involving serious injuries or fatalities — the timescale from incident to prosecution can span several years, so the cost of the regulator’s time to investigate and prosecute an organisation can be significant. These costs are also unlikely to be covered by insurance.
Given the serious consequences associated with health and safety breaches and the general trajectory of increasing fines each year, it has never been more important to ensure that you have a robust health and safety management system in place.
We’ll always be there with you when the worst happens — but proactively managing risk through Brabners Protect significantly reduces the likelihood of serious incidents occurring in your business.
If an incident does occur — or the HSE believes that it has identified a material breach of health and safety law during a site visit — being able to demonstrate a robust approach to health and safety management through Brabners Protect will go a long way to help defend or mitigate any enforcement action. It can also have a significant impact on any fines imposed following a successful conviction.