H&S (Offences) Act 2008 – The Sting in the Tail

Sentences are set to increase for businesses that commit health and safety offences with the introduction of new legislation. The Health and Safety (Offences) Act 2008, which comes into force on January 19, raises the maximum financial penalty for breaches of health and safety legislation, and makes imprisonment an option for most offences. Certain offences will carry a maximum prison sentence of 12 months for cases heard in the Magistrates’ Court, or two years in the Crown Court.

The new regulations do not place any additional health and safety responsibilities on companies. But the Act may cause a significant increase in fines for 2009.

In theory, the Act shouldn’t increase the number of prosecutions for health and safety offences, as companies’ duties in this area haven’t changed. However, for fatal accidents, investigations under the Corporate Manslaughter Act place the management and organisation of a company into the spotlight, which could very well lead to ‘satellite litigation’ of directors and senior managers.

We are still awaiting guidance from the Sentencing Advisory Panel on financial penalties for corporate manslaughter. A starting point of five per cent of turnover has been suggested, or 2.5 per cent for other health and safety offences.

This has a real sting in the tail. The Offences Act has opened the door for more health and safety offences to be sent to the Crown Court, which has the power to impose unlimited fines. If the panel’s suggestion is confirmed, then the door is well and truly beaten down, and there could be much higher fines for health and safety charges in 2009.