Forgotten to clean up that spillage? Perhaps two years at Her Majesty’s pleasure will jog your memory next time. David Foster warns employers about the serious implications of the Health and Safety (Offences) Act 2008 that came into force last month.

During the year 2007/8, 229 people were killed at work. Construction and agriculture had the highest fatality rates (72 and 39 respectively). During the same year, nearly 300,000 injuries also occurred that were reportable under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995.

The most common injuries were those resulting from slips and trips and poor handling, many of which could arguably have been avoided. That year also saw 2.1 million people suffering from illnesses that they believed were caused or exacerbated by current or past work – 563,000 of these were new cases.

What this means for employers, apart from a multitude of personal injury lawsuits, is a loss of 34 million working days and the corresponding decrease in productivity. The bill for payouts and costs equates to £7.8bn and the total cost to the country’s economy is £31.8bn. All these statistics are from the Health & Safety Executive.

With new legislation, costs for businesses are set to increase with the added threat of a prison sentence for the individuals responsible.

The new Act

Parliament’s most recent solution to injuries at work is the Health and Safety (Offences) Act 2008 (the Act) which came into force on 16 January. The Act amends the Health & Safety at Work etc. Act 1974 and substitutes a schedule of maximum sentences that one might face if prosecuted.

Under sections 2-7 of the 1974 Act, various duties are stipulated, including, amongst others:

• Duties of employers to their employees and other persons affected by the business not to expose them to risks to their health and safety




• Duties of employees to take reasonable care for the health and safety of themselves and anyone affected by their acts or omissions

To breach one of the widely-drafted duties under the 1974 Act is an offence. Technically, a person need not even cause an injury to face prosecution, although that would be evidence to support that a duty has been breached.

Previously, these offences only received financial penalties. Now the courts have been granted stronger and wider punitive powers, the threat of which should really make an impact with employers and employees.

Breach of the law: £20,000 and/or two years in prison

Magistrates are now able to hand down prison sentences of up to 12 months or fines of up to £20,000 for breaches of the duties mentioned above. Their counterparts in the Crown courts can give prison sentences of up to two years.

These new sentences should really hit home with employers and employees. It’s now time to start taking proper responsibility for acts and omissions. Parliament clearly believes that fines were not enough of a deterrent – perhaps jail will provide the appropriate and necessary disincentive.

As far as the sentences go, however, giving a jail term for a breach of health and safety could be thought of as disproportionate, especially when classic crimes such as theft are often comparatively ‘rewarded’ with fixed penalty notices. But this is the situation we must now deal with. It is more likely that the harsher sentences will be handed down in cases where fatality is caused.

Avoiding prosecution

Health and safety may be a side issue or even an afterthought in small commercial enterprises, but everyone has a right to be safe.

Don’t leave yourself open to prosecution – comply with the basics, for example:

• Make sure that plant and machinery are safely secluded and only operated by qualified persons




• Ensure the right safety equipment is given to employees to undertake their tasks, especially personal protective equipment, e.g. noise protection and earmuffs/earplugs




• Make sure that employees keep entrances and exits clear of obstacles, and clear up spillages immediately




• Ensure that employees are properly trained in carrying, handling and sitting with the correct posture




• Provide proper training and supervision in health and safety management to all employees




• Use signs to get the messages across to employees and warn the public of any risks




• Abide by the Control of Asbestos Regulations 2006 to avoid any incidence of mesothelioma or other diseases

With small businesses struggling in the current economic climate, they need to be careful when trying to cut costs. Health and safety management costs are a significant annual hit to SMEs but should not be relegated. Training on the issues and regulations is as important as ever – this will cover employers’ backs. Employees need to stick to the rules they have been taught and not cut corners, otherwise they will face the consequences.

David Foster is a partner and head of dispute resolution at Barlow Robbins LLP.