The Health and Safety Offences Act received royal assent late last week. The Government has said that the new punishments reflect the seriousness of some breaches, but experts have warned that they could lead to very severe punishments of executives who have made honest mistakes.
The changes will increase the number of situations in which people can be imprisoned for health and safety breaches. Any employee who fails to take reasonable care for the health and safety of others or themselves could face jail.
Directors and senior managers whose company commits a breach could also face imprisonment where the breach happened with their consent or connivance or due to their neglect.
The new law also increases the maximum fine available to lower courts from £5,000 to £20,000. Higher courts retain their power to levy unlimited fines.
The Government said that the new powers would help punishments to match very severe cases. "It is generally accepted that the level of fines for some health and safety offences is too low," said Lord McKenzie, minister at the Department for Work and Pensions (DWP). "These changes will ensure that sentences can now be more easily set at a level to deter businesses that do not take their health and safety management responsibilities seriously and further encourage employers and others to comply with the law."
"Jail sentences for particularly blameworthy health and safety offences committed by individuals, can now be imposed reflecting the severity of such crimes, whereas there were more limited options in the past," he said.
Health and Safety Executive chair Judith Hackitt said that most executives should not fear the severe punishments.
"The new Act sends out an important message to those who flout the law. However, good employers and good managers have nothing to fear," she said. "Our enforcement policy targets those who cut corners, gain commercial advantage over competitors by failing to comply with health and safety law and who put workers and the public at risk."
Health and safety law expert Dr Simon Joyston-Bechal disagreed with the HSE view, though.
"The possibility of individuals being imprisoned for health and safety offences is a significant and worrying development, particularly for company directors and managers," said Dr Joyston-Bechal, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM. "We don't share the HSE's complacent view that good managers have nothing to fear. It is our experience that good managers can make mistakes which, when prosecuted with the benefit of hindsight, can now lead to loss of liberty as well as a criminal fine."
The Act amends Section 33 of the Health and Safety at Work etc Act 1974, and will come into force in January 2009, the Government said. As well as increasing the fines available in lower courts and the number of offences for which imprisonment is an option, but also makes more offences triable in higher courts. The Government said that the prosecution of individuals should not be "undertaken lightly".
Dr Joyston-Bechal said that the new rules made it even more important that companies put in place proper health and safety policies.
"Getting health and safety right is now more important than ever and there are some important precautionary measures which we advise our clients to take to reduce their exposure to these increased penalties," he said. "By adopting the right incident response procedure, clients will not necessarily need to disclose damaging incident investigation reports to the HSE that admit their failings. Similarly, specialist help is needed for employees through the interview process with the HSE, particularly if imprisonment is now a concern."
