On 1 February, new standardised sentencing guidelines came into force for offences related to health and safety, food and hygiene and corporate manslaughter. The guidelines distinguish three factors in arriving at an appropriate sentence:
- size of the organisation, calculated on turnover;
- culpability, which will look at whether the organisation has been reckless, or has the relevant policies but failed to put them into practice on a single occasion; and
- the level of harm caused by the breach.
The general view amongst lawyers is that the result of standardisation will be a significant rise in the level of fines imposed, and so schools would be well advised to review their health and safety processes.
What does the change mean in practice? To be blunt – a risk of much higher penalties. In a case where the harm is significant, and culpability high, for a medium sized 11-16 school of about 800 pupils, the fine is likely to be in the region of £450,000. However, the potential range for an offence of that seriousness reaches £1.6m. Medium culpability and low harm starts at £12,000.
Schools may feel that this legal tidying up is all very remote from them and that 'it will never happen to us’; but it is becoming increasingly common for schools to be prosecuted for health and safety breaches, and we are seeing an increase in these cases. In one recent case, a school found itself fined a total of £26,000 under the old system of sentencing for a breach of the health and safety at work act 1974 when a technician lost parts of three fingers and ruptured his bowel in an explosion.
The victim had been preparing an explosive substance for a 'fireworks' demonstration. The new guidelines would raise that figure spectacularly because the court heard that this had been going on for some years and that explosive substances were regularly held in the chemistry storeroom.
It is worth noting that the health and safety executive (HSE) did not say that this activity should never have been going on. On the contrary, in line with its consistent policy, it made it clear that this was a perfectly valid activity. Where the school was at fault was in failing to implement clear management arrangements to control and review the risks posed by the chemicals used in teaching activities.
The damage that such failures cause to a school in financial terms is likely to rise steeply with the introduction of the new sentencing guidelines, but that of course does not take into account reputational damage or the damage to confidence in staff relationships.
So it is perhaps rather surprising that schools do not use the guidance for school put out by the HSE, which is available here.