Health & Safety Update (February 2009)

Health and Safety (Offences) Act 2008 – Now in Force

The Health and Safety (Offences) Act 2008 received Royal Assent last year. It came into force on 16 January 2009. Whilst increasing penalties, the Act does not impose any new obligations by way of new offences. The principal duties of employers will remain as before under the Health and Safety at Work etc Act 1974.

The new Act makes three main changes. It:

• raises the maximum financial penalties available to the courts;
• making prison an option as punishment for a wider range of health and safety offences
• makes certain offences that would have been tried in a lower court, eligible for trial in a higher court (meaning that more offences will be open to larger or unlimited fines and imprisonment).

In the past courts have had less powers, they were able to:

• impose fines up to £20,000 for a limited number of breaches of the Health and Safety at Work Act 1974 (HSWA);
• impose fines no higher than £5,000 for a breach of Regulations.

Until now the courts only imposed prison sentences on limited cases, for example where an improvement or prohibition notice was breached.

The new Act will enable the courts to:

• increase the maximum fine for most summary cases to £20,000;
• Impose prison sentences in both higher and lower courts.

Individual liability and imprisonment is significant within these changes and it is important to note:

• section 7 of the HSWA – under which an individual can be prosecuted if they have not taken reasonable care for the health and safety of themselves or other persons affected by their acts or omissions;
• section 37 of the HSWA – under which direct action can be taken against directors, managers and officers if a failure is attributed to their 'neglect, consent or connivance';
• under the new Act punishment can take the form of imprisonment for up to two years.

Because of these changes, companies (in particular, directors) should carry out a document review to ensure compliance with health and safety legislation, in particular within their policies, procedures and practices.

You should make use of your RBS Mentor Services Management System which includes all of the policies and procedures you need relevant to your Company activities.