Leanne Conisbee of Clyde & Co discusses these changes
With the activities sector continuing to grow, as part of wider trend of increased societal health and wellness awareness, businesses should take note of the Health and Safety Executive’s (HSE) enforcement statistics[1]. These evidence the high level of fines companies now ‘routinely’ receive for health and safety breaches, together with confirmation of the upward trend in the level of health and safety fines, imposed by both the Magistrates and Crown Courts.
Small to medium sized businesses have been impacted most, with the level of fines routinely being a significantly greater percentage of turnover than the fines imposed on large and very large organisations, despite the same harm categories and levels of culpability.
Not every accident can be avoided, but to avoid prosecution and potentially hefty fines, companies do now need to have health and safety at the top of their agendas.
High value fines now commonplace
An analysis of HSE data shows a total of 45 cases in 2017/18 where a fine of over £500,000 was imposed.
There were 19 cases with fines exceeding £1m imposed by the UK’s criminal courts for the 12 month period to 31 October 2018 – with less than half of the cases involving very large organisations, dispelling the notion that only those companies with turnovers in the hundreds of millions or billions receive £1 million plus fines.
Whilst HSE prosecutions were down by 16% in 17/18 to a total of 517, the HSE still revealed an impressive conviction rate of 95%.
Although Local Authority (LA) prosecutions are not included in the 517 prosecutions referred to, the data does reveal a significant increase in the enforcement activity of LA’s, showing an annual increase of 7% to 2,580 in the total number of enforcement notices issued by LA’s in 17/18.
Emphatic and rapid change in sentencing landscape
Stark evidence of increased fines for all sizes of business as a result of the introduction in February 2016 of the Sentencing Guideline for Health and Safety Offences[2] is revealed in the average level of fine rising by over 400% from £29,000 in 2014/15 to £147,000 in 2017/18.
Reported cases affecting the activities industry are few and far between. But that does not by any means indicate any sort of immunity.
Center Parcs was recently fined £250,000 when a young girl fell nearly 10 feet from a tree and broke her wrist during an organised activity. Luton Crown Court heard that whilst the company had systems in place to ensure the safety of guests these were not sufficiently adhered to or implemented in respect of this incident.
A leading leisure centre was also fined £330,000 when a five-year-old boy almost drowned in a swimming pool. Despite being a non-swimmer and staff being informed that he could not swim, the boy was allowed to enter the pool without armbands and without proper supervision. The fine imposed was the largest in any investigation brought by Hounslow Council.
Prevention, prevention, prevention
Whilst the above statistics make for sobering reading, organisations can put themselves in the best possible position to avoid or defend prosecutions, or mitigate any fines imposed, by ensuring that:
- Any equipment complies with the relevant British Standards, is inspected regularly and is in good working order;
- Robust policies and procedures are in place and followed, and this is checked via adequate supervision and monitoring;
- Suitable and sufficient risk assessments are carried out, with control measures implemented;
- Training arrangements are reviewed to ensure that staff are properly trained in the policies and procedures; and
- Customers are appropriately warned of the risks associated with an activity and they acknowledge receipt of such warnings.
[1] http://www.hse.gov.uk/statistics/enforcement.pdf
[2] https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf
