How To Avoid A Finding Of Systemic Failure And Achieve Proportionate Fines For Health And Safety Offences

Over 600 cases against defendant organisations have now been sentenced since the Sentencing Guidelines for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences (the Guidelines) came into force on 1 February 2016.

A finding of 'high' culpability for any organisation significantly increases the level of fine. The highest fine to date under the Guidelines of £5 million followed a finding of high culpability against Merlin Attractions Operations Limited (which subsequently moved further up the offence range due to aggravating factors), after the court held that there was a "catastrophic failure to assess risk and have a structured system of work".

There are a number of factors that the court will take into account in determining whether an offence is one where 'high' culpability can be attributed to an offending organisation, namely:

The offender fell far short of the appropriate standard; for example, by: failing to put in place measures that are recognised standards in the industry ignoring concerns raised by employees or others failing to make appropriate changes following prior incident(s) exposing risks to health and safety allowing breaches to subsist over a long period of time There is serious and/or systemic failure within the organisation to address risks to health and safety. The impact of a finding of high culpability has meant that these factors have been the subject of increasing scrutiny, and we have seen a number of arguments and counter-arguments posed before the courts on the correct interpretation of the different factors outlined above. We focus in particular, on the final factor.

When is a failure 'systemic'?

Is it when there is a failure of a specific system? Or does it refer more broadly to a failure by a defendant organisation to establish good health and safety systems generally?

Prosecuting authorities argue that a systemic failure should be found in relation to a single failure to carry out a risk assessment. The proposition is as follows:

The law requires a systemic approach to the management of health and safety in the workplace, as set out particularly within the requirement to conduct risk assessments under the Management of Health and Safety at Work Regulations 1999. The starting point therefore is that a suitable and sufficient risk assessment of all the risks to which employees and non-employees may be exposed must be carried out. An employer must then identify and implement...