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New sentencing guidelines will come into effect on the 1st November 2018. These will increase the potential jail term from two years to up to 18 years for ”gross negligence manslaughter at work”.

The Background

31st July 2018 saw the publication of a revision of the 2016 guidance that judges must follow in determining sentences for gross negligence manslaughter in the workplace – the most serious offence that can be committed by an individual for a health and safety breach in the workplace. The new rules come into force for all sentences imposed from the 1st November 2018 onwards. The original 2016 sentencing guidelines led to a significant rise in fines for companies and reduced the threshold for individuals (normally directors) to be sent to jail for health and safety offences. This threshold will soon be lowered again making it easier for inspectors to prosecute individuals but soon the maximum jail term will not be two years!

So what is “Gross negligence manslaughter”?

It is committed by an individual whose gross breach of a duty of care causes or significantly contributes to a death.

How are the new sentences calculated?

There are four levels of culpability (or blame) each with a different starting point for a jail term:

  • “Very high” culpability starts at a 12 year jail term(with a 10 to 18 year range).
  • “High” culpability starts at an 8 year jail term (with a 6 to 12 years range).
  • “Medium” culpability starts at a 4 year jail term (with a 3 to 7 years range).
  • “Lower” culpability starts at a 2 year jail term.

The judge can either increase or decrease the jail term depending on some factors.

Factors that decrease the jail term:

  • Early guilty plea;
  • Good and early cooperation with the H&S inspectors.

Factors that increase the jail term:

  • More than one person was put at risk;
  • Cost saving was a big factor in the accident;
  • Previous warnings were ignored;
  • There was a blatant disregard for a very high risk of death.

So what is ‘Very high’ culpability?

This category is where the judge feels there is a combination of you saving costs and you blatantly disregarding a very high risk of death. It leads to a start point of 12 years in jail though the judge can reduce or increase the sentence depending on the circumstances.

Example 1: The boss of a construction company, having been warned that a worker had fallen from a roof on a project, continues with the project to avoid the delay and cost of introducing safeguards, and then a worker falls to his death.

Example 2: A restaurant owner saves money by buying ground peanuts instead of ground almonds, but is aware of a previous severe incident of a peanut allergic reaction. He continues to describe dishes falsely as ‘free of peanuts’ and a customer dies from an allergic reaction.

The ‘high’ culpability category may be chosen where cost saving was a motivation for the breach of H&S; or there was ‘blatant disregard for a very high risk of death’. In the absence of these 2 factors, a typical workplace court case would be in the ‘medium’ culpability category.

What will these changes really mean?

I believe that, in the case of a fatal workplace accident where the inspector decides to prosecute, the typical jail term will increase significantly – it won’t be just 2 years. Four year jail sentences may soon become the norm, but serious cases will see 8 to 12 years jail sentences.

Message for owners and directors

Be aware of the behaviours that can get you into the worst trouble and proactively lead an agenda of compliance. Make sure staff can see and hear you on workplace safety.

What does this mean in practice?

  • Understand your duties and responsibilities as an owner, director or senior executive and appoint a ’competent person’ to assist with your workplace health and safety. This can be an internal (trained) staff member or an external consultant but, external consultants cannot know your business as well as you so do ask them questions!
  • Review ALL H&S related documents at least annually and keep collecting evidence of implementing workplace health and safety on a regular basis such as:
    • ANY evidence of H&S training;
    • Induction Forms;
    • signed risk assessments/method statements;
    • completed H&S checklists;
    • internal H&S Audits/Inspection etc.

Please contact our experts on 0203 950 0604 or, if you have any questions. We would be happy to draft a Health & Safety policy for you or conduct Health & Safety Assessments.