New sentencing guidelines

The Health and Safety at Work Act (HSWA) and its associated regulations apply to companies, directors and employees involved in warehouse operations. It imposes duties on employers to ensure, so far as reasonably practicable, that employees are not exposed to risks. There is a similar duty to ensure the safety of the public and outside contractors who may be affected by their operations.

The HSWA is supported by regulations that impose specific duties on employers such as the Management of Health and Safety at Work Regulations, making it compulsory to carry out an assessment of all risks associated with an undertaking. The identified risks must be controlled by sensible and proportionate measures.

Those involved in warehousing and logistics operations must assess the risks and put in place appropriate control measures. Typically, pedestrians and vehicles must be separated inside and outside warehouses and traffic routes imposed to avoid collisions. Specific pedestrian routes with crossing points are an important means of avoiding accidents. Forklift trucks, pallet trucks and other vehicles must be checked and maintained regularly and should only be operated by trained personnel. All employees must have appropriate training, information and instruction on their duties and must be supervised. Personal protective equipment such as high vis jackets, gloves, safety boots and hearing protection must be issued and used where risks have been identified. It is also important to consider the risks associated with maintaining buildings such as working at height and with tools and machinery. External yards and roadways must also be properly maintained to ensure vehicles can be driven safely around premises.

A company may be committing offences under the HSWA and its associated regulations if employees and others are exposed to risk and harm by failure to take the appropriate measures. These failures are often identified following accidents. Typically, a warehouse accident might involve a pedestrian being struck by a forklift truck or a fall from height. This may result in a visit from a local authority environmental health officer and, in some cases, the company ending up in court charged with a health and safety offence.

Both magistrates and crown courts can hear health and safety cases. Until recently magistrates had a limited jurisdiction and could only impose a maximum fine of £20,000 for each offence. Crown courts can impose unlimited fines and usually deal with the most serious prosecutions involving death and serious injuries. While guidance currently exists for sentencing those convicted of health and safety offences resulting in death, The Sentencing Council felt further guidance was necessary to cover all health and safety offences and offences of corporate manslaughter. The Council pointed to inconsistencies in fines handed down and considered fines were disproportionately low in several cases involving very large organisations,

New sentencing guidelines are likely to come into effect later this year.  When sentencing a corporate or individual offender, a court will have to go through a series of specific steps and will consider the size of the company and issues, such as the level of the exposure to risk and the degree of harm. New terminology is used to categorise the level of risk ranging from remote to medium-to-high. The size of an organisation is to be determined by turnover, although other factors will be considered to ensure courts have an accurate picture of financial health and ability to pay a fine. The guidelines ensure that courts take into account the nature of organisations such as public bodies and charities which will affect the level of fine.

The guidelines impose a more prescriptive approach to sentencing but build in more flexibility around the nature of the offender. We can expect legal argument over the meaning of the new terminology and how it applies in specific cases. Fines may also increase, specifically for larger organisations with a significant turnover, although we could also see larger fines for smaller companies where there has been a greater exposure to risk. Defence costs could increase with the more complex sentencing process.

While courts will have the benefit of the new guidelines, it is feared there will be greater inconsistency with magistrates dealing with more significant prosecutions and imposing greater fines for offences committed after 12th March 2015. Expect greater uncertainty, more appeals and increased costs for the foreseeable future.