The biggest change to health and safety law for 40 years!

The new sentencing guidelines for health and safety, corporate manslaughter, food hygiene and food safety offences have now come into full force. Although there are no changes to substantive Acts or regulations, this undoubtedly represents the biggest change in the law since 1974.

In simple terms, it will introduce the prospect of million pound fines for larger organisations, and smaller businesses could see fines in excess of 10% of TURNOVER not Profit. It also lowers the threshold for potential imprisonment for individuals so that negligent actions which put people at risk, rather than just reckless or deliberate behaviour, could result in any employee or director facing the possibility of a stretch behind bars.

A large organisation (with a turnover greater than £50million) being sentenced for high culpability and harm (a workplace fatality for example) can expect a fine in the range of £1.5m to £6m with a starting point of £2.4m (to be adjusted on the facts of the case). If the culpability is very high the range is £2.6m to £10m with an entry point of £4m. Nor is £10m a ceiling. Large organisations with a turnover several times more than £50m potentially face considerably larger fines.

Is it all Bad news?

Although businesses which fail to take any steps to manage risks will be hit even harder in the pocket, those which have made an effort to get their house in order are more likely to have their achievement recognised and avoid harsh treatment. This is because the guidelines make it clear that the culpability of the organisation must be taken into account when sentences are determined.

So, for example, even if there’s an accident, if you can prove that you have completed risk assessments, followed industry guidance, trained your staff, etc., then your efforts must be considered.

Tip. The value of a robust paper trail will be greater than ever. Ask yourself, Are my risk assessments up to date? Have I given all my staff safe working practices? Do I review my policies annually? Are all my staff trained to cover all legal standards (Fork Lift Truck, Manual Handling, Fire Awareness etc)?

If you can answer to the affirmative, then it unlikely that you need to do anything fundamentally different simply because of the threat of much higher fines if they get anything wrong.


Effective H&S Management System and Safe Working Practice Highlighted after Incident at Agricultural Dealer.

In November last year the health and Safety Executive (HSE) released details of an investigation into an incident which occurred at a Company which sells and services agricultural machinery, resulting in a fine of £750,000 for the Company and a worker left permanently blind in one eye. The incident happened during the re-inflation of an agricultural vehicle tyre.

The HSE Principal Inspector commented after the hearing   “Employers undertaking this type of activity have a duty to ensure that staff are competent to inflate larger higher risk tyres, to use a system of work that is safe, and to implement effective management systems to supervise and monitor such activities……..while all tyre technicians require suitable training, those inflating the large, higher- pressure tyres fitted to many agricultural, commercial and construction vehicles need to implement key additional precautions”.

This highlights the need to have your employees follow a suitable Safe Working Practice (SWP) for this kind of service activity. A sample SWP or this activity can be downloaded free here and this is just one of over 70 SWP’s that we provide as part of the package for BAGMA members.  If you would like more information, please contact us on 08000 806801.

Further guidelines regarding tyre inflation can be found at


Is this the most dramatic change in Health & Safety Enforcement since 1974?

In November 2015, new sentencing guidelines for Health & Safety offences were published, these will have a dramatic effect on punishments handed out to business owners. Fines will be greatly increased across the board and more custodial sentences will be handed out as a lower threshold for imprisonment is implemented.

Important Change –Risk Based not Outcome Based

Included in these changes is a new aspect to the basis for sentencing. Until now breaches in Health & Safety law that have caused serious injuries have been the ones that have attracted the higher fines and custodial sentences, but from 1st February 2016, the courts will impose punishments that fit more closely to ‘the level of exposure to risk’ regardless of whether serious injuries have occurred or not.

As the law requires all business owners to identify the risk, it therefore becomes much more important for them to know where their ‘high risk’ Health & Safety issues lie and to take appropriate action to be compliant.  This becomes a ‘deliberate breach’ if it has been identified and not remedied.

It remains to be seen how the level of punishments for Health & Safety breaches will actually turn out, but these changes will come in on 1st February 2016 , and the new guidelines are retrospective, so will apply to offences that have already been committed which come up for sentencing after that date.

If you would like any further information and advice please contact Safety Aide Ltd.  

During the months of December and January, Safety Aide is offering heavily discounted prices for its statutory H&S online training.  Please call us on 08000 806 801 for more details.


Are you up to speed with licence checks?

In June 2015 counterpart driving licences were abolished and the information became available online instead. What are the practicalities of using this system and is there anything you should watch out for?

New system

As we reported in May 2015, employers may be held liable for the actions of their employees if they allow them to drive on company business without a valid licence. The DVLA’s new arrangement provides access to real-time information on endorsements and licence categories, thus reducing the opportunity for fraud.


To check a licence the first step is to ask the employee (or prospective employee) to go to the DVLA micro-site on GOV.UK and click the instruction “view or share your licence information”. Tell them that they’ll need their driving licence number, National Insurance number and postcode in order to receive the “check code”.

Note. When the driver accesses the system they receive a PDF report which contains the endorsements etc. and check code. Many vehicle hire companies are simply using this PDF report. However it doesn’t have any legal status and could be counterfeit. To be certain that the information is valid, use the code to access the information online.

How to use the code

The code is valid for one-time use for 21 days after its generated.

Tip. To use the code online you’ll require the last eight digits of the driving licence number as well as the check code.

Be careful

It may be tempting to use information you hold on an employee’s file, i.e. their National Insurance number, driving licence, etc. in order to directly access the information, but don’t do it. This is in breach of the data protection requirements of the DVLA.

How often can you check?

We recommend at least an annual check but since penalty points can accumulate rapidly you may wish to do this more often. Some organisations apply a scale so that, for example, those drivers who are three points away from losing their licence have frequent checks whereas those with no or few points stay on annual checks.

Tip 1. Each time you want to check up on an employee’s licence you’ll need them to generate a new check code. They’ll also need to do this if the code has expired, i.e. more than 21 days has elapsed since it was generated.

Tip 2. Set up a spreadsheet to log the details retrieved and make sure it triggers re-checks at the frequency you’ve determined.

Note. Having such a robust system may be vital when defending yourself against a prosecution. Imagine, for example, the level of scrutiny which is now being applied to Glasgow City Council’s licence checking procedures following the bin lorry crash in December 2014 which killed six pedestrians.


Why give special consideration to young people in the workplace?

 Because of their age, immaturity, and inexperience, young people could be at greater risk in the workplace.

When they are new to the workplace, they will encounter unfamiliar risks from the work they carry out, and from the working environment.

Employers must ensure that they assess the risks to young persons and make sure they put in place controls to reduce the risks.



Definitions of young people and children by age:

  • A young person is anyone under 18 and
  • A child is anyone who has not yet reached the official minimum school leaving age (MSLA). Pupils will reach the MSLA in the school year in which they turn 16. 

The Law - Management of Health and Safety at Work Regulations 1999  

Under the Management of Health and Safety at Work Regulations 1999, an employer has a responsibility to ensure that young people employed by them are not exposed to risk due to:

  • lack of experience
  • being unaware of existing or potential risks and/or
  • lack of maturity

An employer must consider:

  • the layout of the workplace
  • the physical, biological & chemical agents they will be exposed to
  • how they will handle work equipment
  • how the work and processes are organised
  • the extent of health and safety training needed
  • risks from particular agents, processes and work

These considerations should be straightforward in a low-risk workplace, for example an office environment.

In higher- risk workplaces the risks are likely to be greater and will need more attention to ensure they’re properly controlled.

Employers need to consider whether the work the young person will do:

Is beyond their physical or psychological capacity

This doesn’t have to be complicated, it could be as simple as checking a young person is capable of safely lifting weights and of remembering and following instructions.

Involves harmful exposure to substances that are toxic, can cause cancer, can damage or harm an unborn child, or can chronically affect human health in any other way

Be aware of substances a young person might come into contact with in their work, consider exposure levels and ensure legal limits are met.

Involves risk of accidents that cannot reasonably be recognised or avoided by young people due to their insufficient attention to safety or lack of experience or training

A young person might be unfamiliar with ‘obvious’ risks. An employer should consider the need for tailored training/closer supervision.

Has a risk to health from extreme cold, heat, noise or vibration

In most cases, young people will not be at any greater risk than adults and for workplaces that include these hazards it is likely there will already be control measures in place.

Dispelling the Myth - Young Persons need a separate risk assessment!

This is incorrect but is a commonly held view.  The HSE have recently issued new guidance (INDG364 (rev1)) which makes it clear what is required and explains how to take a proportionate approach.  There is no requirement for an employer to complete a separate risk assessment specifically for a young person.  Employers are required to manage risks in their workplaces and should not be adding unnecessary bureaucracy.  

To obtain this new guidance, please go to the HSE website or find a copy here.

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