Understanding how fines for breaches of health and safety legislation is structured - Part 3

If you are new to this blog, please read part 1 and 2 first. Part 1 looks at the factors to be considered when there is a potential for an unlimited fine to be imposed and gives a brief overview of harm cause, risk, culpability and financial means. Part two looks at the considerations when determining the level of fine to be imposed.

In part three, we are going to look at the factors for consideration that would determine the offence category stating with culpability and then looking at harm. Culpability can be determined as either very high, high, medium or low with harm classified as level A, B or C.

Culpability

Where there are factors in the case that fall into different categories of culpability, it is the duty of the court should balance these factors to reach a fair assessment of the offender’s culpability.

Very High

• Deliberate breach of or flagrant disregard for the law

High - Offender fell far short of the appropriate standard, such as:

• Failing to implement recognised industry standards

• Ignoring concerns raised by employees or others

• Failing to make appropriate changes following prior incidents exposing risks to health and safety

• Allowing breaches to persist over an extended period

• Serious and/or systemic failure within the organisation to address risks to health and safety

Medium

• Offender fell short of the appropriate standard in a manner that falls between descriptions in the ‘high’ and ‘low’ culpability categories

• Systems were in place but were not sufficiently adhered to or implemented

Low

• Offender did not fall far short of the appropriate standard, such as:

• Not failing to implement recognised industry standards

• Significant efforts were made to address the risk, although they were inadequate on this occasion.

• There was no warning or circumstance indicating a risk to health and safety.

• Failings were minor and occurred as an isolated incident.

Should a case proceed to a trial, determining the level of culpability will often be subject to robust debate between the defence and prosecution with the prosecution generally arguing for the highest level of culpability with the defence putting forward a case for reducing the level of culpability. Each looking to either secure the maximum or minimum level of fine imposed respectively.

Harm – A,B or C?

The seriousness of harm is categorised by determining the following levels:

Level A

• Death

• Physical or mental impairment resulting in lifelong dependency on third party care for basic needs

• Significantly reduced life expectancy

Level B

• Physical or mental impairment, not amounting to Level A, which has a substantial and long-term effect on the sufferer’s ability to carry out normal day-to-day activities or on their ability to return to work

• A progressive, permanent or irreversible condition

Level C

• All other cases not falling within Level A or Level B

The guidelines suggest courts should consider the risk of an offence, but the actual harm suffered determines the overall harm category. The court then determines the starting point fine and category range based on the last 3 years’ turnover which must be submitted to the court for consideration.

Fines range from £50 to £10m for health and safety offences and up to £20m for corporate manslaughter, with higher options for very large organisations.

The table below shows, the size of a company significantly impacts the starting point fine for harm category one cases.

Harm category one: Starting point fine

Organisation turnover	Very high culpability	High culpability	Medium culpability	Low culpability
Large turnover (Over £50m)	£4,000,000	£2,400,000	£1,300,000	£300,000
Medium turnover (£10-50m)	£1,600,000	£950,000	£540,000	£130,000
Small turnover (£2-10m)	£450,000	£250,000	£160,000	£45,000
Micro turnover (Under £2m)	£250,000	£160,000	£100,000	£30,000

Additional considerations

The sentencing process considers mitigation, aggravating factors, assistance to the prosecution, a guilty plea reduction (a fine can be reduced by a third if a guilty plea is made at the first hearing), compensation, and the overall fine if the court is sentencing for multiple offences. Strong and valid evidence detailing the mitigation can persuade the judge to make reasonable adjustments at all stages.

Summary

• Culpability Levels: Very High, High, Medium, and Low.

• High Culpability Examples: Deliberate breach of law, ignoring concerns, failing to address prior incidents, allowing persistent breaches, and systemic failure.

• Harm Levels: Level A (death, lifelong dependency, significantly reduced life expectancy) and Level B.

• Harm Categories: Courts consider the risk of an offence and actual harm suffered to determine the harm category, influencing the starting point fine and range.

• Fine Ranges: Fines range from £50 to £10 million for health and safety offences and up to £20 million for corporate manslaughter, with higher options for large organisations.

• Sentencing Considerations: Mitigation, aggravating factors, assistance to prosecution, guilty plea reduction, compensation, and overall fine for multiple offences are considered.

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If you require further assistance with any of the topics raised in this post or assistance with current or future projects, please get in touch.

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