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‘Impact of the Health and Safety Sentencing Guidelines’ with Kizzy Augustin

Safeti Podcast Episode 5

Impact of the Health and Safety Sentencing Guidelines – with Kizzy Augustin

Richard: Hi guys, welcome back to another episode of the Safeti podcast. Today we are having an exciting guest on the show. The legal expert partner at Russell Cooke solicitors Kizzy Augustin. Kizzy has built a reputation in defending companies, senior directors and employees in corporate manslaughter and serious fire and health and safety prosecutions. You may in fact already recognize Kizzy’s name from the regular appearances she makes as a panel member and the keynote speaker at some very high-profile events across the health and safety industry in London and across the UK. We have Kizzy on the show today to help give you a breakdown of the ins and outs of the health and sea at the sentencing guidelines that came into force in England and Wales in early 2016. So I think regardless of where you are in the world, what your role is within health, safety or environment, I think you’ll find this insight both interesting and valuable.

Intro: Welcome to the safeti podcast with your host all the way from a small green island in the wild Atlantic Ocean, Richard Collins.

Richard: Once again welcome back to the safety podcast. We’re trucking along rightly night at Episode five. You might notice that there has been a bit of a break since the last episode and unfortunately I wasn’t away selling myself on a beach somewhere. Although saying that we had one of the best heat waves the UK & Ireland has seen for a number of decades. So yeah it wasn’t too bad. But I was actually off on paternity leave for anybody who’s connected with me on LinkedIn you might have seen that for the birth of my second child. Thankfully it all went pretty well and we were able to spend a couple of lovely weeks together getting to know one another. Which obviously is invaluable. But as all good things must come to an end and back to work and back at the safeti podcast bringing you value and interviews with some of the most prominent people in the industry. So we’re going to kick off the day as I’ve already said with Kizzy Augustin. Let’s waste no more time and get on the call.

Kizzy thank you so much for coming on to the safety podcast today to discuss with us the impact of the Health and Safety Sentencing Guidelines updates that have occurred in the UK in the last few years and obviously you’re a bit of an expert on this topic. So welcome to the show and thanks for coming on.

Kizzy: Thank you for having me.

Richard: As I said before you might have seen it that I put a little bit of a blog post on my own website on this issue and we see lots of examples of businesses being prosecuted and then the vigils as well and the increasing severity of those. Obviously not everybody will be aware of the changes that have actually happened. So hopefully you know with your expertise, you can give them a bit of a run down as to what these changes are and how it may impact any businesses or people they will be involved with. Come back to the start then can you give us a bit of an overview as to what the changes have been and how you see them.

Kizzy: We talk about them being recent and they still feel a bit recent to us. But these guidelines actually came into play in 2016. So we’re two years in and feeling the impacts and hopefully a bit later I can give you a demonstration or an illustration of how that has impacted companies and individuals. but where we’ve been at is in recent years in Health and Safety, in terms of the penalties that were dished out to companies and even individuals, we were looking in tens of thousands. I mean we were looking at one time or another a 20,000 pound maximum fine for many organizations who were prosecuted health and safety matters. now I think posts these guidelines come in and the reason why these guidelines were introduced, it came from the environmental sphere where some time ago a couple of years ago there were some issues relating to a large organization that were committing environmental breaches and it was said in those cases that as a large organization with a lot of resource, you should really be sentenced accordingly. It shouldn’t be the whole twenty thousand pound fine each time. so for the first time a large organization was actually sentenced in accordance with a matrix that was again looked at by the Sentencing Guidelines Council and they set up these specific environmental guidelines that each judge should look at when they’re looking to sentence for breaches of environmental law. now a very similar matrix was then adopted by the Sentencing Guidelines Council and put out the consultation for health and safety offenses, which was then accepted and brought into force in February 2016 and these are the guidelines that we have now and essentially it a carried a retrospective effect and it was a guideline for all judges to look at in relation to all Health and Safety offenses both fatal and non-fatal. Corporate and individual offenders, corporate manslaughter and food safety and hygiene. so we do now have definitive guidelines for all of those offenses and I think the reason for that was there was a bit of disparity between the way in which health and safety matters were being sentenced and it was felt that if these guidelines were enforced, then judges had something to look at to. At least give a bit more consistency and certainly more transparency in relation to the Sentencing of these type of offences.

Richard: I do remember that actually myself when I was working in construction and the environmental sentencing came through and after large extent I was quite as an environmentalist myself and with my background in environmental engineering I was quite happy actually to be honest. Because you know a lot of the offenses that were being committed were being punished very very low levels you know and they weren’t having any impact on behavior.

Kizzy: That’s what I was saying.  You know we have other regimes in the regulatory field like fraud. That you know fraud, big fraud cases being sentenced for millions of pounds. You know bribery and corruption same sort of thing. Why are we not seeing the same in other parts of the regulatory regime like health and safety, like Environmental Law? So it was done to I suppose bring us up to speed with the way in which these type of offences should be sentenced.

Richard: With that said and you’ve touched on the fact that a lot of the focus was on large organizations. Can you tell us from what you’ve seen why this may or may not impact in the same way the smaller businesses and the small to medium sized businesses?

Kizzy: Well the guidelines apply to all levels of organisation. So from the large and very large all the way down to medium to small or micro. So when we’re talking about large organizations we mean organizations that have a turnover of 50 million or above with 50 million pounds or above and very large organizations are those organizations that have a turnover that greatly exceeds 50 million. But we don’t have any guidance as to what that looks like. so that could be 500 million, it could be 20 billion we don’t know and we have had cases where companies who have a turnover that certainly us in the legal profession would say greatly exceeds 50 million, they don’t get sentenced those very large organizations. They’ve been sentenced as large.  The significance of having a very large organization category is that if you’re in that bracket, the judges don’t have to stick to the matrix. That the guideline set out in fact, they could go off the scale. So that the fines could be well in excess of the ten million cap that the matrix gives.  Nobody wants to be in the categories. Now when you’re talking about the smaller organization’s so medium organizations and below, we think are feeling the impact of these guidelines more and they’ve got less money to put towards a fine. But the fines are still particularly high. So what we’re seeing with the medium organizations which are, they have a turnover of 10 to 50 million. For example their fines are anything from I would say 240,000 all the way up to let’s say 4 million. That’s still a huge fine or a medium-sized company who although their turnover might be between 10 and 50 million, their pre-tax profit may be a lot lower than that. So certainly the impact is felt I think by the smaller companies.

Richard: I could just think of an example there of a company that I know who have a large turnover and a very small profit margin relatively and how that would impact them. It would be severe and just on that point I mentioned in my own blog post and I’m sure you mentioned about it in some of the stuff that you have written on this subject. The perception that insurance will cover this, can you give us any insight into that?

Kizzy: So I mean you can be insured for a variety of things as an organization. Certainly for civil claims if there is a claim against the company for negligence for example, that is likely to be covered as long as you’ve got the right insurance. if you’ve got legal expenses insurance and you’ve got the right type of cover and the one you want is to cover an organization in relation to investigations or prosecutions for health and safety corporate manslaughter, you name it. Then that will cover you for instructing lawyers to assist you during an investigation/ prosecution. You would also want something corresponding to that that would cover your directors and officers. So the employees of the organization, the senior management of the organization just in case they are pursued in their personal capacity. So all of that will be covered as long as you have the right insurance. What insurance will not cover is fines. So that the financial aspects of a penalty will have to be covered by the organization itself and when you’re talking about a million pounds plus for one offense, that can very easily toss up to quite a few if there are a number of offenses. But even at 1 million, it’s a lot of money. It’s a lot of money to come out of an organization’s pocket.

Richard: In terms of just the intention of the changes you may or may not want to give us your view on this. But obviously the aim was to reduce the amount of fatality severe injuries and illnesses caused by serious breaches in health and safety law and as you discussed earlier it came from the environmental side of things. which is also covered by stringent guidelines. Do you think these changes are going to have a positive desired effect or do you think just from what you can see I suppose on the ground with businesses and working in close proximity to the profession, you know is there a chance that this is going to further diminish the perception of health and safety with the heavier punishment. Because I have seen and I have heard people calling these measures draconian. Which may or may not be a fair interpretation.

Kizzy: So look at that I think you need to have an understanding of I think what the guidelines are about in terms of what they’re proposed to look at and yes I’ve heard them called draconian. I mean the Law itself is draconian. But I think that the general consensus is these guidelines have been brought in so that organizations and/or individuals will think a bit more carefully about proactive health and safety management. So therefore they won’t just wait until an incident happens. They’ll actually do something to avoid being in that position in the first place. but kind of before we talk about whether or not the impact has been the correct one, I think if you just look at the first few steps of these guidelines in the way in which the courts are asked to look at sentencing of confessions and individuals, I think will get the point that actually they’re looking at a lot more than just the end

result. They are looking at what does an organization, what does an individual do in respect of health and safety more generally. So for example the first step of the guidelines is to look at the culpability of an organization or individual and the level of culpability is extremely important in deciding on the sentencing aspect, when dealing with a potential failing. So that goes from very high which talks about deliberate breaches or flagrant disregard of the law down to high culpability. Which is falling far short of the appropriate standard. Into medium, which is falling far short of a standard. that is somewhere between high and low culpability, and low which means the organization or the individual did not fall far short of the appropriate standard. so just looking at the culpability levels, the majority of those organizations that find themselves being prosecuted and then convicted of a health and safety offence, when it comes to the sentencing section a lot of them will be placed in the high culpability bracket and to think of that the reason why I say that is when the Health and Safety Executive or any other enforcing Authority are bringing a prosecution, they very often say this organization has fallen far short of the appropriate standard and in saying that, it is almost the presumption that you will be in that category. Because that’s what it says. It’s all about falling far short to the appropriate standard. So that talks more about what the organization does generally. What have they done to get to this point? How have demonstrated they’ve fallen far short to the appropriate standard and again if an organization is proactive, health and safety and can demonstrate. This is not something that would routinely happen. Of course I haven’t fallen far shore to the appropriate standard. because if for example A, if those in industry would do exactly what they’ve done or B, you know they’ve got lots of measures in place that means this wasn’t something that fell far short or an appropriate standard. Then you know the culpability point is that is an important one. because if you’re sitting in the high category, it means the fine is going to be pretty high and you’ll see that if you have a look at the guidelines and things that are relevant, I think to culpability are issues like failings put in place measures that are recognized by industry or ignoring concerns by employees or not making changes after previous incidents or having long-standing breeches and all of that is about your health and safety management. So I think that’s why these guidelines are so wide-ranging and so huge. It’s not just meant to be punitive at the end. it’s actually meant to look at what does this organization do in terms of their health and safety management generally and that’s only just looking at one aspect of the guidelines. There are a number of them and I think the second part, second step of the guidelines is also very important. Because that’s a massive change. That’s all about categories of harm. So seriousness of harm risked and the likelihood of the harm occurring. Now some people will say it’s a bit unfair because what judges are looking at is, what is the seriousness of harm risked as a result of this incident. They’re not looking at did someone get hurt and that’s where we were several years ago. We were looking at, did someone get hurt. Did someone die, if they didn’t that’s a mitigating factor. Now it actually doesn’t matter. what matters is what was the risk and how serious was that that harm that was at risk and that divided into level A, level B, level C. Level A being the most serious meaning the seriousness of harm risk was death or physical and mental impairment. Level B is less than that. Just physical or mental impairment not as bad as A. Level C is not the above and most health and safety incidents or risks that are concerned with health and safety incidents will fall into that level A category. Because I will struggle to find a health and safety incident that couldn’t possibly result in death. So again it’s another thing I think for organizations to be worried about in terms of when we get investigated by the HSE or as I said another enforcing authority. We no longer looking at someone being hurt. It’s just whether or not there’s a possibility of them being harmed, what’s the risk of that? I mean it is caveated by the likelihood of that harm occurring. But it’s still something I think that organizations really need to think about.

Richard: I think that is a massive change certainly you know from an HSE professional’s point of view. That change from looking at the actual outcome toward looking at the potential outcome. But I’ll be interested to see how this actually develops and plays out in real terms. Do you think there’s a risk that this will just encourage businesses to be less open and honest when it comes to reporting potential injury or illness as a result of the greater impact that a prosecution may bring to the business?

Kizzy: To be honest it’s always been a possibility I don’t think that the guidelines have necessarily changed that. They have changed the outcome of what that might be. But I think there’s always been a risk that if you report an incident. Whether that’s on the rid or whether you are an enforcement notice or a feature intervention notice is impose and you accept that notice. I think there’s always been a risk but on the back of that the enforcing authority could then prosecute for that failing that’s been admitted. So using RIDDOR as a sort of perfect example. An organization completes a RIDDOR report and says incidents occurred and there’s also a section in there that says tell us tell us about the circumstances of the incident and any steps that you’ve taken to prevent a reoccurrence. which all seems very good and I think in the past and certainly in recent years organizations have simply fill that out and said this is the incident, this is what’s happened, these are the things that we’ve done to make sure this doesn’t happen again and it does sound very diligent as an organization to do that. The problem is that filling in a RIDDOR form has always been evidence and can be used as evidence by a prosecutor. So whatever’s on that form could then be used as a basis of a prosecution and that’s always been the case. It’s always been in a case. Which is why certainly I have advised clients in the past to be very careful about what they put in RIDDOR forms and I’m not suggesting that you don’t fill out the form accordingly. But what I’m saying is if you fill it in at the right times, very often you won’t know what steps will need to be taken in order to prevent recurrence. Because it’s so early on in the investigation or so soon after the incidents occurred. So you know there could be an ongoing investigation and again they’re things that you can do to protect the organization and its individuals, when you are reporting something like that. Which is you stick to the facts. You stick to the facts you state that’s on a RIDDOR form. If there are some very obvious things that have been done, such as shutting down a site or cordoning off areas for example. Then you put that in the RIDDOR form. Anything else long-term such as reviewing policies, I mean that’s not something that you would do as a spur-of-the-moment thing or a knee-jerk reaction. You would consider that and consider whether or not there are things to be reviewed. But that’s an ongoing process and that should form part of an investigation report as opposed to putting absolutely everything in the riddle form. Which is exposed and which is disclosable and can be seen by the other side. I think what organizations need to think about is how do we protect ourselves as a business while complying with the requirements to a report, an incident and one way of doing that is to make sure that your incident response protocols are in place and that your incident reports are protected by legal privilege if necessary and by that you would get lawyers involved to help you with that it just means that you manage the disclosure of the information. If you give it out to the enforcing authorities, you do that in a controlled and managed way.

Richard: I certainly think that under reporting is an issue in a lot of industries and sectors and it’s something that, it’s difficult to measure.

Kizzy: I do think under reporting is an issue and I think part of that is that organizations need to have a culture that it’s okay to report incident and that they won’t be personally penalized for things happening on their watch. I think what people need to be aware of is that in reporting an incident, it doesn’t necessarily mean that you or the organization will be prosecuted. Because incidents can happen while there are still good policies and practices/ Kane on so I think what’s more important is to ensure that your house is in order that you do have these policies and practices in place within an organization. But get to the root of why this has happened.

Richard: I think that’s very pertinent. With that in mind then one of the prosecution’s that came through initially, the judge had said that the intention was to bring it home to the directors and shareholders of the founding organizations. Specifically talking about obviously the senior people in the organization and you know the stakeholders and owners of companies. As HSE professionals is there a good or bad way that we can communicate these changes to senior leadership’s. You know in a way that that can balance the two things that I’ve just mentioned.

Kizzy: I suppose there are conflicting issues and there always will be. In terms of investigating an incident, I think a lot of Health and Safety professionals feel that they want to investigate why and incidents occurred, because I want to do the best for the organization. but in doing that, if they do rewards an or report or award some investigation they are exposing the company and potentially individuals it’s a potential liability and I think the way to do that is to protect the investigation, the report and any other correspondence and communication by legal privilege .because what you are doing is if something is shielded in in legal privilege. It means that whatever you generates by way of communication thereafter is not discloseble to a third party. It doesn’t mean you won’t disclose something at some point. but what it means is it just slows down the process and it means that you can as a health and safety professional go out and do your water and all report and you can discuss this information with senior individuals and you can talk about what might have happened and whether or not there’s something internal, it needs to be looked at. Something external in terms of selection contractors, experts etc. you can talk about everything safe in the knowledge that that does not have to be disclosed to a third party. Now if at a later date you decide to put all that information together and provide something that doesn’t jeopardize the organization or its individual’s position, then you can do that. But you are not forced to do that or on the back foot when an enforcing authority says can you show us your investigation report or can we see all your emails that discuss this incident. Because you can say no it is protected by legal privilege and there’s only a specific way that you can do that and that is by involving specialists lawyers unfortunately. Like myself who can help you manage that process.

Richard: Okay I think that’s useful information for the audience to know. you know those options that are available and hopefully a lot of people looking at these guidelines and anyone talking about the impact of them, a lot of HSE professionals from what I can see sort of revert to the point that we shouldn’t be focusing on the punitive end of things. But should be more focused on getting things right from the cultural aspect.

Kizzy: I think it has to go from top to bottom. I mean there’s a lot of talk about health and safety leadership and leading from the top and the Institute of Directors and the Health and Safety Executive talked a lot about board. Board representation and the understanding from a senior management perspective as to what’s going on in terms of Health and Safety within an organization and there is a perception that that should be the health and safety professionals’ job .well that’s our health and safety departments’ job, well it’s not. It’s the responsibility of all within the organization and I think that’s been a very slow cultural change. But we’re getting there and I think that will help the likes of the health and safety professional. If they are speaking about this is our responsibility, this is my responsibility. I’m telling you something that I’ve observed. But it’s now the responsibility of you and the organization to decide how you want to manage these health and safety risks that I’ve identified and I think that’s where the change has to come. It’s from both ends.

Richard: Yeah excellent and I agree with you it sort of follows on from some points that have been made in previous podcasts already and you know that cultural change is slowly happening as you say. But hopefully you know using the types of means sharing knowledge and getting the likes of yourself and with your expertise on to this podcast. You know it will help people have a confidence to tackle these issues to be honest with their bosses their leaders and so forth and ask the right questions to get the right information and to help them. Which is great. moving on then to the last part which I know you’re working on some stuff at the moment or an upcoming Expo for safety and health Kizzy and some of it is focusing on the new changes for gross negligence manslaughter and the impact on individuals and how they are viewed as part of these sentencing guidelines.

Kizzy:  So again very similarly to where we were in terms of sentencing organizations a couple of years ago, we see a similar change in terms of sentencing individual’s so pre guidelines I think prison sentences for health and safety breaches particular individuals are very rare. We have slight tariff, we had little precedent for prison, and the cap was a two-year imprisonment for those various serious breaches. But we would have very few prosecutions. I post Sentencing Guidelines, it’s more likely now for individuals to receive a custodial sentence and again if you look at the matrix that the guideline set out, there are very few options that don’t involve a custodial, sentence for a health and safety breach there’s still two-year maximum. But what’s more likely to happen now is the enforcing authorities are more likely to prosecute individuals. If you look at a lot of the recent case law, it’s more likely that enforcement authorities will prosecute both the individual and organizations and again like I said a lot of recent cases. Talk about that if you think, if you think about in particularly in corporate manslaughter. We’ve got the Martinisation case which was the social infant balcony where two employees where died underneath, they were hit by a falling sofa. in London and again the organization and Senior Managing Director was prosecuted so, that’s what we’re seeing very often now in terms of sentencing individuals so it’s the increase of prosecutions and also that the likelihood that it is going to be a custodial sentence. Now moving even further from that, we are now looking at gross negligence manslaughter. Which again within health and safety. It’s almost always been seen as they are not so serious crime. It’s not as bad as normal manslaughter or murder. It’s not you know it’s not the same and I think I’m guilty of it, I have said to clients in the past if you’re charged with gross negligence manslaughter from a health and safety workplace perspective you’re not a real criminal. There’s now a consultation which has now gone it’s been out and gone. But the consultation was all about looking at guidelines for gross negligence manslaughter conviction. But in the same way that they did for health and safety convictions and by gross negligence manslaughter we are talking about from a medical professional perspective. let’s say a medical practitioner falls below the appropriate standard for someone in their capacity when treating patients, to be looking at careers who fail to protect victims falling from beds for example or an employer who disregards the safety of employees or members of the public .so gross neg. manslaughter covers a wide range and at the moment I would say the average sentence for gross negligence manslaughter is about anything from two to four maybe five years. The suggestion is once these guidelines come in the starting point for gross negligence manslaughter will be eight years. So that’s a huge jump from where we’ve been in terms of a gross negligence manslaughter conviction. So again individuals need to look at how we avoid being in that situation in the first place. Because once you’re there, once you’ve been convicted of an offense like this, the starting point is looking like it will be eight years plus.

Richard: I think we can go into more detail on that in the future and look at what the impact of these changes are going to be in the same way we have with the recent health and safety guideline changes. Thank you so much for coming on and giving us a brief overview of the perception of how these changes have impacted the legal end of things and hopefully guys that are listening can get some value from what you’ve discussed for us and you know moving forward we’ll try and keep these type of discussions going. Because I think it is very valuable it’s something that we can sometimes turn a blind eye to. But it’s very much important for organizations and the individuals as we discussed.

Kizzy: Absolutely absolutely and again I think rule we’re all working towards the same goal, we’re just doing from different angles and I think the aim is proactivity is the key within organizations. Excellent I agree with you wholeheartedly there and so yeah thanks very much for coming on the show Kizzy and we’ll chat to you soon.

Kizzy: Thanks very much.

Richard: So guys that brings us to the end of the interview with Kizzy Augustine. As you can see there are some significant changes that have been made and this is threatening to have both huge financial impact in organizations and potentially also a personal impact on individuals as well. Looking around on social media, it seems like many people still feel that there is not anywhere near the level of awareness on these changes. Even though it’s been over two years as since were put into force. Other people feel that it wouldn’t actually change behaviors anyway and that we need much more than just a regulatory deterrent and there’s only really through the on-the-ground efforts of health and safety or environmental professionals that will actually change behaviors in such a way that will prevent things from happening. Otherwise it’s just going to really be a punitive measure what companies will then will suffer for and I’d love to know your thoughts on this. Whether you’re in the UK or not, do you think that this is the right direction to go in or is it just an easy route to punish people and businesses? That brings us to the end of the safeti podcast episode 5. We’re going to have lots of extra resources available to you including a transcript of this episode. So keep your eyes out for that and if you’d like to know when the next episode is available, you can subscribe on the podcast page and until next time as Kizzy said earlier keep being proactive and we’ll see you again soon. [Music]