A media report that your business has been prosecuted for a health and safety offence can be highly damaging, both in terms of financial penalties and the loss of consumer and investor confidence in your business. In addition, companies looking for joint-venture partners examine the health and safety record of prospects carefully. Disclosure of any health and safety breaches are also often required on tender applications.
It is crucial to note that just because a health and safety incident has occurred does not necessarily mean the employer was in breach of any rules or regulations. Health and safety compliance is complex because it must run side-by-side with commercial reality. There are very few entities who do not take health and safety seriously; however, it can be difficult for SMEs to remain on top of rapidly shifting compliance requirements. To-do lists get longer, and days seem to accelerate. But by understanding how health and safety prosecutions are brought, the importance of compliance can be shown. Because to have a credible defence it is imperative to show that your business has the policies and procedures in place from the outset.
To illustrate the seriousness of this article, take a moment to consider the below statistics from 2016/17.
- The Health and Safety Executive (HSE) made 593 prosecutions with at least one conviction achieved in 554 cases (a conviction rate of 93%); and
- Prosecution led to fines totalling £69.9 million with an average penalty of £126,000 per case.
Convictions against individuals are also increasing. Prosecutions of this type used to be few and far between. Not any longer. The HSE will frequently examine individual involvement in workplace accidents and incidents of industrial disease. Prison sentences for individuals were introduced by the Health and Safety Offences Act 2008. And even if a custodial sentence is not handed down, the consequence of having a criminal conviction can severely blight a person’s future.
These high rates of prosecutions and fines added to the potential for a custodial sentence illustrate the seriousness of an alleged breach and the importance of seeking expert legal advice immediately.
Who prosecutes health and safety offences?
Health and safety offences can be prosecuted by the HSE, a local authority, and any other body authorised by primary or secondary legislation to enforce health and safety law.
What does a health and safety investigation involve?
An investigation by the HSE or other regulatory body is likely to occur following an incident or a complaint regarding health and safety standards. An inspector will visit your premises to gather evidence and prepare a report. The inspector is not the person who will decide on whether a prosecution is brought, this will be done by an approval officer following an evaluation of the report.
For a prosecution to be brought, all aspects of the Code for Crown Prosecutors (January 2013) must be followed, and this includes a two-stage test:
Evidence stage – the prosecuting authority must be satisfied that there is “sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge”. This must take into account the strength of the evidence collated, and the assessment should be done on an objective basis. Just because there is enough evidence to prosecute does not mean that there is enough for a conviction.
Public interest stage – if the evidence stage is satisfied, then a decision must be made whether it is in the public interest to prosecute. The more serious the offence, the less weight that public interest factors will have.
In addition to the Code for Crown Prosecutors (January 2013), the HSE has a formal Enforcement Policy Statement (EPS), and an Enforcement Guide .
The EPS states that the purpose of HSE enforcement is to:
- Encourage compliance.
- Ensure unsafe practices are made safe.
- Promote rapid action to eliminate serious risks.
It also sets out the public interest factors to be considered which include (but are not limited to):
- Whether the breach resulted in death
- What was the gravity of the offence and the level of actual or potential harm?
- Has there been a breach of health and safety compliance in the past?
- Was work carried out with sufficient compliance or licence (if applicable)
- Has the organisation failed to comply with an improvement or prohibition notice in the past?
Can I mitigate the chances of being prosecuted?
As a business owner, you can have considerable influence over whether you are prosecuted for an alleged health and safety breach. The most important action you can take is to co-operate fully with the investigator and take prompt remedial action to fix any fault. The other way to reduce your risk of being prosecuted is to organise an emergency response in the form of a legal professional who can conduct an internal investigation. Evidence can then be presented to the authority explaining why prosecution is not necessary and/or justified.
Being prosecuted for a health and safety offence should be taken extremely seriously. Getting the right advice from the outset can mitigate the risk of a disastrous outcome which could affect your professional and personal life for years to come.
Tanveer Qureshi is a Legal 500 barrister, specialising in ASA compliance, business to business fraud, health and safety, food standards, civil litigation, and corporate crime. If you require legal representation, please contact directly on 020 3870 3187.