Penalties for health and safety breaches by large contractors could become more consistent under a proposed shake-up of sentencing guidelines.
Reformed health and safety fines introduced in 2016 saw recommendations given to judges for how to sentence companies ranked as being either micro, small, medium, large or very large based on their turnover.
Large companies were said to have turnover of £50m and above but no specific figure was put on “very large” other than that they “greatly exceed” £50m.
In those cases, judges are only told to “move outside the suggested range to achieve a proportionate sentence”.
A review by the Sentencing Council, for which a consultation closed in November, suggests expanding the guidance available to judges to make it clear the level of fines must be proportionate.
The proposed new guidelines say: “In setting the level of fine for a very large organisation the court must consider the seriousness of the offence, the purposes of sentencing (including punishment and deterrence) and the financial circumstances of the offending organisation.”
It states that regard should be given to the usual principles of setting a fine, and adds: “Particular regard should be had to making the fine proportionate to the means of the organisation, sufficiently large to constitute appropriate punishment, and sufficient to bring home to the management and shareholders the need for regulatory compliance.”
The existing shorter guidance is similar for companies guilty of environmental crimes, food safety breaches and underage sales of knives.
The Environment Agency, backed by the Secretary of State for Environment, Food & Rural Affairs, proposed the change in a bid to make the situation clearer and more accurate for judges and magistrates.
Claire Burrows, a partner in the regulatory and professional conduct team at law firm Brabners, told Construction News that the current system meant health and safety fines for very large companies were often decided at the judge’s discretion.
She asserted that with the money from the fines going to the Treasury, particularly large fines did not help to make business safer and the money would be better invested in their own systems.
Burrows added: “I think it’s important organisations understand the ramifications of getting health and safety wrong and what the potential fine implications can be.
“While there is case law to help guide judges about sentencing of very large organisations, having a streamlined approach outlined in guidelines that every sentencing judge needs to follow is likely to be beneficial to [large contractors] because it will give them some sort of transparency about what they’re working with.
“If they do find themselves in this situation, their legal teams will have a much clearer framework to provide advice and guidance.”
There were warnings about the impact of the fines reform in 2016, with Balfour Beatty chief executive Leo Quinn stating the definition of a large contractor at £50m could help “bankrupt many small construction companies”.
However, the number of prosecutions carried out by the Health and Safety Executive (HSE) in all industries in Britain has plummeted in recent years.
In 2008/09 it completed 1,090 prosecutions. The number fell to 711 in 2015/16, just before the new fines were introduced. In 2023/24 the HSE carried out only 228 prosecutions.
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Ian Weinfass