Managers who ignore the management of their at-work drivers are reminded that they could face two years in jail or a fine of up to £20,000 following the introduction of the Health and Safety (Offences) Act 2008 in January.

The Act builds on the foundations of the Corporate Manslaughter Act, which will come into play if a road collision involving an at-work driver causes a fatality.

Mark Deere of Advanced Driving Techniques said: "Businesses must be able to demonstrate how they manage road risk and that someone is responsible for managing that risk however large or small the business is.

"The law applies to all employees whether they are driving to take a parcel to the Post Office or many miles to a meeting.

"The new legislation could be used to prosecute an employee - including fleet operators - whose management failings resulted in a car crash that was caused by, for example, illegal or unsafe tyres, a poorly maintained vehicle or an employee being forced to work long hours without sufficient breaks."

Solicitor David Faithful explains the new Health & Safety Offences Act 2008

The Act received Royal assent on the 16th October 2008 and follows on the heels of the Corporate Manslaughter and Corporate Homicide Act. From the 16th January 2009 it increases the penalties available to the Court for breaches of the Health and Safety at Work Act 1974 (HSWA).

 

The effect of the Act is threefold
 

  1. To raise the maximum fine available to the Magistrates Court to £20,000
  2. To make imprisonment an option in both the Magistrates and not just the Crown Court
  3. To make certain offences triable in either the Magistrates or Crown Court

Traditionally, breaches by an employer of the HSWA resulted in the imposing of a fine, these offences were often tried in the Magistrates Court whose powers were limited, both to the extent of the fine that they were able to impose and the inability to imprison offenders.

In more serious incidents such as those involving a serious injury or death, the case was referred to the Crown Court, where the matter could not only be considered by a jury, but where, upon conviction the sentencing powers were greater.

The list of offences which are covered by the new Act, are lengthy however, the most common offence committed by an employer is a failure to discharge their health and safety obligations under The HSWA

The HSWA lays down obligation to employers both to their own employees and others affected by their activity by virtue of section 2, 3 and 4.

Most commonly the employer fails either to identify the risk or having identified the risk, fails to implement appropriate measures to reduce the risk.

There is a need to follow the HSWA 5 steps to risk assessment which includes, identifying the danger, carrying out a risk assessment, implementing measures to reduce the risk, train where appropriate and audit trail the entire process.

It is often the case that an employer will carry out a risk assessment, either itself or by an outside agency, but then fail to properly implement the recommendations and create an audit trail so that if investigated the employer can satisfy the investigating body that health and safety is being properly managed.

Jeremy Hay of Essential Risk Consultancy reinforces this statement of employer’s obligations ” So few companies have an adequate risk assessment.

"They quite often have some solutions in place but no legally identifiable risk assessment. So they have actually failed to identify the actual risk to their employees.

"ERC have produced simple online tools for companies, but many still do not understand the basic requirements.”

The current legislation would permit the imposing of unlimited fines for a breach of the Health and safety at Work Act, this would only occur if the case was referred to the Crown Court due to the limited sentencing powers of the Magistrates Court, the new Act now permits Magistrates to impose a fine of up to £20,000.00 or 12 months imprisonment or both.

The more serious cases of injury, death or flagrant or persistent breach of health and safety obligations, will result in referral to the Crown Court, where a judge upon conviction, is able to impose an unlimited fine or two years' imprisonment or both.

It is currently the case, that a first offence or technical breach, would result in a fine of manageable proportions.

The new sentencing powers will however enable Magistrates to impose a sizeable fine up to £20,000 in routine cases.

It is often said that the fine fits the crime, so the greater the injury, the more flagrant the breach or if the employer has previous convictions for similar offences, the greater the risk that imprisonment of the directors will be seriously considered, particularly if it is felt that the employer needs to be taught a lesson or that a message needs to be sent to other employers.

This is particularly the case if the prosecution ends up in the Crown Court.

There is no doubt that along with the Corporate Manslaughter legislation, the greatest risk of an employer being investigated for a health and safety breach is as a result of a serious or fatal road traffic incident.

It was felt that the inability to imprison Directors for Corporate Manslaughter was a significant weakness in that legislation.

This new act remedies that deficiency, so much so that there must now be a significant risk that directors will be facing prison as a consequence of the actions of their drivers.