Are you complying with Health and Safety law?
The recent case of Cambridge Live, which appeared for sentence before Peterborough Magistrates Court on 6th September, brought home the fact that charities are not immune to prosecution for health and safety offences and also that having charitable objectives will not of itself be sufficient to avoid large financial penalties in terms of fines and costs.
The circumstances of the case were that the charity organised a bonfire night celebration which included fairground rides on the 4th November 2015. A cyclist was involved in a collision with a lorry carrying dodgems and as a consequence lost a leg and had to undergo a series of operations. The impact did not end there and understandably she also suffered psychological damage as a result.
The charity had been set up by Cambridge City Council to run events in Cambridge. The fact that it was a charity did not prevent the imposition of a large fine.
The charity admitted the breach of health and safety law at an early stage which mitigated the penalty they faced. The charity also reviewed its procedures and ensured that in future there was a process for closing footpaths in the area when events were being set-up and taken down. On the 4th November there were no barriers to separate the public from large vehicles which may have been a significant contributory factor to the incident. In health and safety management terms it appeared that any risk assessment that had been undertaken was insufficient.
The charity was prosecuted under s3 Health and Safety at Work etc. Act 1974 for failing in its duty to ensure the health and safety of people affected by their work, and failing to undertake a suitable and sufficient risk assessment contrary to regulation 3 Management of Health and Safety at Work Regulations 1992. Notwithstanding the mitigating features Peterborough Magistrates Court imposed a fine of £30,000 and costs of £6654.37, a substantial amount for any charity to bear but a figure which it is likely was considerably less than the sentencing guidelines. The guidelines, introduced in February 2016 and applicable to all cases sentenced after that time, raised the bar considerably in relation to the level of penalties imposed. The penalties are calculated according to three criteria – culpability, harm and turnover. For an organisation with a turnover of less than £2 million, in circumstances where the culpability is high (which will be the case in most prosecutions) and harm significant a fine of up to £110,000 is within the range of sentencing. The court can take account of the profitability of an organisation and the effect of any penalty on service users and may make a proportionate adjustment as a consequence, but as can be seen in this case that will mitigate a large fine but will not eliminate it.
In this case there was no prosecution of Trustees or Senior Managers but that is always an option where an offence has been committed as a consequence of the consent or connivance of such a person or attributable to neglect on their part. Of course, the sentencing of individuals is in many respects greater than that on corporate entities as it can include the imposition of a prison sentence, although very often in health and safety prosecutions that sentence will be suspended.
In addition, unlike in the case of civil claims for damages it is not possible to insure against any financial penalty so the penalties will come directly from the charity or individual, whichever the case may be. There is also the attendant bad publicity to contend with too, which for some charities can have the most significant impact depending on the circumstances and also the nature of the charity’s objectives.
It is essential that charities have a health and safety policy and a suite of documents from that point downwards to risk assessments and, if appropriate, safe systems of work to ensure compliance. In addition, staff must be given appropriate training and it is also important to remember that any health and safety document is a live document which needs regular review and evaluation. There is no point having documents and systems “in place” that are then ignored.