23/10/2019
iosh Magazine
Gaps in the guideline
20 October 2019
By Michael Appleby and Dr Louise Smail
The sentencing guideline for health and safety offences observes that transgressions under the law centre on failure to manage risk. But neither the Health and Safety at Work Act 1974 nor the Management of Health and Safety at Work Regulations 1999 (MHSWR), which contain the requirement for risk assessment, define ‘risk’. The sentencing guideline is silent, too.
The prosecution process requires evaluation of the risk. The Health and Safety Executive’s (HSE) Enforcement Policy Statement (para 2.1) states enforcement action should be “proportionate to the health and safety risks”. At trial, when the defendant organisation is seeking to prove it took all reasonably practical steps to control the risk (s 40 of the HSWA), this entails consideration of the extent of that risk. If convicted, the sentencing guideline requires the court to assess culpability and harm, the latter involving an assessment of the seriousness of harm risked and its likelihood.
So, should the courts have guidance on assessing health and safety risks, or is it merely a matter of ‘common sense’?
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