THEN AND NOW – health and safety sentencing trends
Health and Safety / 21 May 2020
In April 2016 the Health and Safety at Work Act 2015 (HSWA) came into force. The new legislation gained significant attention due to the significantly increased maximum fines. Four years on, we now have a picture of how the Courts are applying the new legislation. Safeguard has recently published an analysis of health and safety sentencing figures. As predicted, there has been a six-fold increase in respect of fines and reparation figures. .
Four Step Approach
There is a four-step approach to health and safety sentencing:
- Assess the amount of reparation to be paid to any victim.
- Fix the fine including any adjustments for mitigating or aggravating factors.
- Determine whether any further orders are applicable under the legislation.
- Make an overall assessment of proportionality and appropriateness as to all of the above, which can include the businesses financial position.
Fines
Fixing the fine requires the Judge to determine the culpability of the business. Culpability takes into consideration all the circumstances including the nature of the risk, deviation from industry standards, disregard for health and safety practices.
The 2018 Stumpmaster case is now regularly applied with the following banding approach used when fixing a fine.
| Previous Bands | New (current) Bands | |
| Low culpability | Up to $50,000 | Up to $250,000 |
| Medium culpability | $50,000 – $100,000 | $250,000 – $600,000 |
| High culpability | $100,000 – $175,000 | $600,000 – $1million |
| Very high culpability | $175,000 plus | $1million – $1.5million |
In setting the fine, discounts or increases are apportioned for mitigating or aggravating factors. These factors relate to early guilty pleas, remorse, cooperation, remedial steps taken.
Sentencing Trends
Safeguard’s recent analysis of reparation and fines dating back to 2010 shows a significant jump as follows:
| 2010 – 2017 | 2018 – 2020 | |
| Fines | $34,300 | $216,300 |
| Reparation | $80,850 | $273,800 |
Messages for businesses
Should an incident occur in your workplace, seeking legal advice early and cooperating with investigations is critical. If you or your business need advice on health and safety risks, our team is here to help.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.