Fines rise, but prosecutions fall for H&S crimes
I was very pleased to read that, between February 2016 and February 2017, the total value of fines imposed on businesses for health and safety offences was £73.2 million. That was up from £35.4 million for the previous 12 months. This is more than double the previous total and is mainly down to new beefed-up sentencing guidelines to courts that came into effect in February last year.
Unfortunately, while the size of fines are going up, far less cases are being taken. According to the latest HSE annual report, the number of prosecutions mounted by the HSE fell sharply last year. In 2015–16, the HSE instituted 696 cases, 95% of which resulted in a conviction for at least one offence. In 2016–17, however, provisional figures show that this fell to 547, a decline of 21%.
On the other hand, the HSE served substantially more improvement notices than in recent years. Last year, there were 6700 improvement notices compared to 5700 the year before and 6270 in 2014-15. Interestingly around a third of these improvement notices related to health cases, which is a very welcome trend.
Trade unions have a slightly mixed view on prosecutions, after all they are a sign that something has gone wrong and our priority is to prevent injuries happening in the first place. Also they are very time consuming and we want HSE and local authority inspectors doing their job preventing things happening rather than spending huge amounts of time preparing for court cases.
On the other hand it is clear that, for many employers, the threat of a prosecution is the only thing that keeps them from totally ignoring their health and safety responsibilities all together so we need strong enforcement action as a deterrent.
So, while the big increase in fines is welcome, the problem is that, given that the HSE no longer does pro-active inspections of most workplaces, the chances of actually being prosecuted are virtually nil unless you report that there has been an injury, which means that employers are far less likely to report. It also means that employers are not being prosecuted for serious failings before someone gets injured, only after an injury has taken place.
It is also true that most long term illness is a result of stress or musculoskeletal disorders and they are the ones least likely to be reported to the HSE and also occur in the sectors that are least likely to be visited by an inspector.
That is why union health and safety representatives are so important. Not only do we keep the workplace safer but we can make sure that, whenever an injury or illness leading to more than seven days off work does occur, it is reported, and that less severe injuries are recorded in the accident book.
The one area that prosecutions are more likely to take place is after a fatality. Again the priority must be in prevention, but a prosecution of the employer sends an important message and can help give a sense of justice to the family of the victim.
Yet workplace killings are treated differently than other killings. There are several kinds of manslaughter. Corporate manslaughter is brought against companies or organisations, but individuals can be prosecuted for voluntary, unlawful, involuntary or gross negligence manslaughter. Health and safety prosecutions are almost always brought under the “manslaughter by gross negligence” category, but the penalties on conviction for this type of offence are, on average, less than half that of the other types of manslaughter, with an average of four years in prison against 8-10 for the others. For health and safety offences the sentence is often even suspended.
Hopefully all that is going to change. The body that recommends sentencing to the courts has issued a consultation that proposes bringing the penalties for health and safety manslaughter in line with all the others which is long overdue. The TUC and trade unions will be responding to the consultation welcoming it.