Part one: A guide to what has changed
The new guidelines published on 3 November by the Sentencing Council increase the level of fines and the penalties that can be levied on both businesses and individuals for health and safety and corporate manslaughter offences. It is likely that we will now start to see more directors, managers and other employees being handed custodial sentences. This is partly due to the significantly lower level set for potential imprisonment.
Although the guidelines do not come into force until 1 February 2016, it seems clear that when they do, they will bring with them an increased business and also individual risk. And, as the core aim is to get duty holders to take legal compliance more seriously, ignoring them could result in some very unwelcome surprises for businesses and individuals alike.
They are designed to send a clear message to all that non-compliance will be met with severe penalties. They will focus on levels of harm and culpability, and have been designed to give the courts in England and Wales a comprehensive systematic sentencing guide to ensure there is a clear, transparent and consistent sentencing approach. It was felt this was needed as previously fines could be disproportionate to micro businesses.
In addition to employment and health and safety, the guidelines will cover a multitude of food safety and hygiene offences, including:
- Placing unsafe food on the market
- Inadequate traceability
- Food recalls and withdrawals
- Failure to adopt systems based Hazard Analysis and Critical Control Point (HACCP) principles
- Misleading consumers through labelling, advertising and presentation of food
- Misleading consumers regarding a food’s compliance with religious or personal beliefs
The level of culpability will now be measured from “low” where failings are minor and not systemic to “very high” where there has been a deliberate breach or flagrant disregard for the law.
Allocating this culpability factor will serve as the first step in the sentencing process. This will then drive the allocation of a recommended penalty. The “very high” will be allocated automatically if there has been a “deliberate breach or flagrant disregard for the law”.
Many have expressed the view that it may be all too easy for small businesses and individuals to fall into this category. For example, a business or individual who has identified a potential safety problem, or non-compliance issue, but has not got around to looking at it because of dealing with other “business priority” issues would fall automatically into the “deliberate breach” category. This may happen more often than you would first think, as it isn’t always easy to juggle our daily tasks, responsibilities and work priorities.
Part two of the guide to health and safety changes, published tomorrow, will describe the new penalties which could be given.
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