Health and Safety Offences Act becomes law and possibility of imprisonment increases

After being presented and rejected four times in the House of Commons, the Health and Safety (Offences) Act 2008 (the “2008 Act”) successfully passed through Parliament on 16 October, and will come into force in January 2009.
The 2008 Act amends section 33 of the Health and Safety at Work Act 1974 (HSWA) and raises the maximum penalties available to the courts in respect of certain health and safety offences. It also makes imprisonment an option for more offences, and makes certain offences that are currently only triable in lower courts, triable in either the lower or higher courts. The changes were introduced in light of the Hampton and Macrory Reports (discussed in earlier editions of this newsletter), commissioned as part of the Government’s ongoing programme of regulatory reform.

At present, imprisonment is only an option in certain cases, such as where an improvement or prohibition notice has been breached. The 2008 Act will, however, make imprisonment more widely available for a number of breaches of the HSWA. Of particular note are the sections of HSWA relating to individual liability; employees can be prosecuted under section 7 of HSWA if they have not taken reasonable care for the health and safety of themselves or other persons affected by their acts or omissions, or where they have not co-operated with their employers in health and safety matters. Likewise, section 37 of HSWA allows action to be taken against individual directors, managers and officers where a failure can be attributed to their neglect, consent or connivance. Currently, individuals found to be in breach of sections 7 or 37 can face a fine not exceeding £5,000 on summary trial, or an unlimited fine on indictment. The 2008 Act, however, raises the maximum summary fine to £20,000 and introduces a term of 12 months imprisonment on summary trial, whilst a term of 2 years imprisonment and/or an unlimited fine will be available on indictment.

The 2008 Act also makes imprisonment available following a breach of the general health and safety duties imposed on employers under sections 2, 3, 4 and 6 of the HSWA. The extent of this change will, however, be limited, as a company has “no soul to damn and no body to kick”, and cannot therefore be imprisoned. It will be limited to situations where an individual is the employer, and this will only be in very rare cases, such as where an employer is a sole trader.

To view the Health and Safety (Offences) Act 2008 please click here