Many businesses are guilty of not investing enough in adequate health and safety arrangements, because they see only cost. Training, equipment, procedures, communication, taking the time to plan a job properly - it all costs money. And what is there to show for it? Nothing. So, why allocate precious resources to it? Better to focus on the revenue-generating aspects of the business. Besides - the business has been operating for years now without a serious incident, so it would be a waste of time, effort and money anyway, wouldn’t it?

If this sounds like your thought process, or worse - your boss’s, it’s time to wise up! Consider this - according to recent research conducted by Arinite Health & Safety, the average fine for a breach of health and safety legislation in 2016 was £115,000. That figure is the average, not the top amount - that was £5 million! According to the same research, the average cost of ensuring health and safety compliance for SME’s is around £40,000. 

The figures cited above reveal that there is a potential £75,000 benefit to a business from not being short-sighted when it comes to investment in health and safety.  Now that there is clearer guidance provided by the sentencing guidelines, you can have a look at the figures for potential fines (and also the likely custodial sentences) as they apply to your own situation.

If You Think Health & Safety Is Expensive - Try A Prosecution Under The New Sentencing Guidelines!

Let’s say you are the Director of a small company that is doing well, but because of that, and a failure to lead effectively, there has been a lack of attention paid to health and safety. This has left you in a position where there is a fragmented health and safety management system in place, resulting in there being some work activities for which no risk assessment has been carried out.

Let’s also say that there has been some recent wet weather that has revealed the guttering on the roof is blocked and you ask one of your managers get the problem rectified. This results in one of the workers getting some ladders, getting up on the roof and clearing the blockage. While the job is going on, a member of the public contacts the HSE because they are concerned about the fact that there is no fall prevention measures in place and you are paid a visit by a HSE Enforcement Officer. They discover there is no risk assessment and decide to prosecute.

According to the guidelines, a court is likely to find you ‘highly culpable’ in terms of your failure to put in place measures that are recognised standards in the industry. The courts might take an even sterner view if they believe there has been a deliberate breach of or flagrant disregard for the law (risk assessments are, after all, an absolute duty). They are also likely put this issue into harm category 2, because of the potential seriousness and high likelihood of harm. It is not likely to be harm category 1 (which would be worse for you) because they also need to take into account whether or not the offence exposed a number of workers or members of the public to the risk of harm (the greater the number of people, the greater the risk of harm) and whether the offence was a significant cause of actual harm (in this scenario, there was no actual harm, but that was only down to blind luck!). This means that the fine your business is likely to be looking at will be between £50,000 – £450,000!

That’s The Business Punished - Now It’s YOUR Turn!

Because you are the Director of this business - the buck stops with you! You are accountable for the breach of legal duty to ensure that there are risk assessments in place (even if you’re not the one who actually conducts them). Referring to the guidelines again, it might be reasonable to imagine that the courts would assess your individual culpability as being medium as the offence was committed through an omission (no risk assessment) which a person exercising reasonable care would not commit. Again, because of the factors discussed in the previous paragraph, it’s harm category 2. You’re going to be looking at a Band E fine (300–500% of relevant weekly income) or medium level community order (e.g. 80–150 hours unpaid work) or up to 26 weeks’ custody!

Factors that would make it more likely that you would receive a custodial sentence would be:

• Previous convictions
• Motivated by financial gain
• Deliberate concealment of illegal nature of activity
• Established evidence of wider/community impact
• Breach of any court order
• Obstruction of justice
• Poor food safety or hygiene record
• Refusal of free advice or training

Factors that would make it less likely that you would receive a custodial sentence would be:

• No previous convictions or no relevant/recent convictions
• Steps voluntarily taken to remedy problem
• High level of co-operation with the investigation, beyond that which will always be expected
• Good food safety/hygiene record
• Self-reporting, co-operation and acceptance of responsibility
• Good character and/or exemplary conduct
• Mental disorder or learning disability, where linked to the commission of the offence
• Serious medical conditions requiring urgent, intensive or long-term treatment
• Age and/or lack of maturity where it affects the responsibility of the offender
• Sole or primary carer for dependent relatives

Just Because You Can’t See It - Don’t Assume It Isn’t There

Please bear in mind that so far, this article has only explored some of the costs associated with fines. There are many other costs that need to be considered if you want an intelligent perspective on investment in health and safety. Take a look at the following (non-exhaustive) list of examples:

• Lost time - sick leave, absenteeism etc.
• Lost time - directors and managers involved with investigation, remedial actions, solicitors etc.
• Recruitment costs - because of high staff turnover
• Training - again, because of high staff turnover and also filling-in for staff on sick leave
• Damage - to plant, property, premises, equipment etc.
• Insurance - your insurers will increase your premiums to cover their own risk
• Compensation - your insurance covers most, but courts can and do make businesses pay some
• Loss of contracts - potential clients will not want to work with businesses that have health and safety convictions
• Loss of reputation - potential customers will not want to buy from businesses with health and safety convictions
• Overhead costs - energy, wages, rates etc. are all still coming out of the business  

These other costs listed above could actually be far beyond the amount of any fine, yet there are many business owners and bosses who simply don’t see it. They don’t see the bigger picture because either they are not thinking strategically (as any leader should do), or they are simply prepared to take the risk and hope for the best, which is morally reprehensible when the impact of poor health and safety on the lives of real, thinking, feeling people and their families are considered.

Could You Live With Killing Someone?

Think about it. Really let it sink in. If someone was hurt, maimed, diagnosed with a terminal illness, or killed in connection with their work. And that it was as a result of poor standards of health and safety, for which you are responsible - would you be able to come to terms with that? The impact a serious injury or illness can have on a person and everyone connected with them (sons, daughters, wives, husbands, wider family, friends, colleagues) is absolutely devastating. 

Ask almost anyone: “What is the most important thing in the world to you?” and you will, more often than not, get an answer that involves health and safety - their own and/or their families. With this in mind, it doesn’t make much sense for anyone who works for a living to consider the health and safety function of a business or organisation to be not just an important one, but actually - the most important one! More important than profit, more important than sales, more important than branding, marketing, administration, finance. More important than any of it. No question.

Consider that, then try to argue that health and safety costs too much money!