Aug 17, 2017 Last Updated 11:36 AM, Aug 14, 2017

New sentencing guidelines to have significant impact on industry safety

Published in Talking Point
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Construction insurance specialist Focus expects that new sentencing guidelines for England and Wales that came into force in February will have a significant impact on the industry’s safety record, workforce, employers and insurers.

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The new guidelines from the Sentencing Council are designed to reinforce efforts to improve health and safety standards across a wide spectrum of businesses, but construction will be more affected than most because it is so hazardous in nature.

Widely expected to maintain the trend towards tougher penalties for employers’ health and safety failings, whether or not actual injuries result, the guidelines are intended to reflect the degree of employer culpability and the extent of the risk of serious harm.

Penalties are geared to have enough financial impact to impress upon management and shareholders the need to operate within the law. This implies ‘the larger the company the bigger the fine’ with a £20m fine possible for a serious offence by a major entity.

Where the most serious offences are shown to involve corporate manslaughter, both the financial penalty and the personal consequences are too great for anyone to ignore. A closely implicated director could face charges that carry a possible two-year jail term.

“In an ideal world, such a severe regime shouldn’t be necessary,” says John Finch, Focus’ Commercial Director. “You’d surely imagine that the prospect of seeing a worker with multiple injuries after a fall from height would be enough to encourage site safety.

“Yet such incidents occur weekly in the industry and many cases are taken to court by the Health and Safety Executive. Almost invariably the HSE representative will explain how a fall, impact from a heavy load or vehicle, or other incident was wholly avoidable.

“That being so, it must be right for workers, employers and insurers to support the new guidelines and try to achieve the desired reduction, not ignoring the many near misses and minor injuries that form the base of a notional triangle with fatalities at its apex.

“Health and safety breaches can take many forms: inadequate training and supervision, unsafe working practices, absence of personal protective equipment and outright illegal work such as unlicensed asbestos removal. These are often down to poor planning.”

The involvement of principal contractors, sub-contractors and self-employed workers in the construction industry makes site safety a shared aim, but clear responsibility for safety issues must be agreed in order to ensure that none of them gets overlooked.

This need for a joined-up approach to health and safety was behind the Construction (Design and Management) Regulations 2015 that now have effect. These highlight the importance of project planning, risk management and engagement with the workforce.

All these issues also have implications for insurers. Like construction industry employers and workers, insurers have a clear interest in achieving a reduced level of incidents. All claims contribute to the costs of employers’ or public liability insurance that firms need.

So, it is not unreasonable for insurers to expect employers to exercise a proper level of care over the safety of their own workers and of others at or near a site. If an employer is prosecuted for health and safety failings, their insurability might be called into question.

In some construction site incidents, employee inexperience or incompetence may be a factor contributing to an incident. That does not absolve contractors or sub-contractors from blame; the HSE may still hold them responsible for not ensuring proper training.

“The first step to ensure compliance, avoid site accidents and keep insurance premiums down is a risk assessment,” John Finch adds. “Our online self-assessment tool can aid this process, whether or not an upgrade to a full risk management service is envisaged.

“Any site can be vulnerable, as a swift look through cases prosecuted by the HSE in recent months shows. The sheer variety of incidents highlights how crucial a coordinated view of all site activity is to making sure no angle gets overlooked when assessing risks.

“Late last year a specialist piling company was fined £16,000 for operating a piling rig with an unguarded auger, though no injuries were involved. This shows that the HSE are now being more proactive in rooting out dangerous site practices before people get hurt.

“Soon after that case, a contractor faced penalties of £174,000 over a worker being fatally injured by a falling fascia during shop-fitting work. Weeks later, three firms were fined a total of £360,000 because a lorry driver was killed by an insecure concrete panel.

“Though it is not possible to say what fines would have been imposed under the new sentencing guidelines, the likelihood is that they would have been substantially higher. In any event, I am sure the employers involved were deeply shocked by the accidents.

“That leads us to the question of whether harsher sentences will help cut construction injuries and deaths. Combined with a higher likelihood of being found out and prosecuted, tougher penalties may help that cause, if sadly too late for some victims.

“Tip-offs from the public help the HSE target unsafe sites. The police may also have a role. Just two months ago a builder was fined £13,000 after officers saw site workers throwing rubble bags from a height; the HSE were called in and found other breaches.

“I see the new sentencing guidelines as a move in the right direction. The possible gains for workers and for insurers are clear. For employers, the effort and expense of safety compliance must be worth it, even if no size of fine should motivate more than a fatality.”

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