A spate of six-figure fines after customer accidents should urge operators to look again at risk management, says Richard Salvini
Since the introduction of new sentencing guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences in February 2016, there has been a significant increase in the average levels of fine for health and safety breaches handed down by the courts.
This should be heeded by all industry sectors but especially those that are, by the nature of their business, inherently exposed to higher risk.
Businesses and venues that operate in the leisure industry must consider and implement health and safety law in the workplace like all employers. For those venues that are licenced and attract a relatively high proportion of young people, this creates higher risks of incidents, accidents, injuries and therefore scrutiny from the relevant government bodies including licencing authorities and prosecutors.
These businesses are required to consider and implement a broad range of compliance relevant to licencing conditions pursuant to the Licencing Act 2003 and a raft of health and safety legislation in England and Wales.
From a licencing perspective, potential penalties are unlimited fines and even custodial sentences for individual defendants up to a maximum of six months.
For those venues that are licenced and attract a relatively high proportion of young people, this creates higher risks of incidents, accidents and injuries
For health and safety breaches, formal investigations by the regulatory authorities can also be undertaken against both corporate and individual defendants, pursuant to, for example, the Health and Safety at Work Act 1974.
The sentencing guidelines set out important factors that determine the levels of fine awarded by the courts. Two such factors considered by the courts are culpability – ie how far the defendant fell below the appropriate standard and risk of harm. These factors routinely involve an analysis and assessment of the defendant's risk management strategies and compliance with relevant industry guidance or standards of safety.
In recent years, there have been prosecutions within the leisure industry following fatal and serious injury accidents. These cases have involved a broad range of factual circumstances, ranging from issues relating to dangerous infrastructure, poor management of crowds or use of excessive force by door staff when attempting to control individuals or groups of people at events or venues.
Following the introduction of the sentencing guidelines in 2016, there have been several cases where the fines have exceeded £1m, and it is now not uncommon to see penalties set at substantial six-figure sums. Inevitably, fines at this level attract significant media interest.
From an employer and public liability perspective, business and venues must consider and implement health and safety law in the workplace to ensure as much as possible, the safety of staff, and visitors. This requires health and safety policies, procedures and systems that are designed to reduce risk to the lowest point practicable.
Every business and venue will carry a different set of risks, that reflects the nature of their business and size of the venue. Therefore, specific risk assessments for the business venue are essential and should cover areas such as: infrastructure and fabric of building (fixtures and fittings), fire risk, supervisory and staffing ratios for managing employees and visitors to venue and emergency procedures. Risk assessments should also be regularly reviewed, at least every 12 months and appropriate staff training provided.
Businesses have both a moral and legal duty to do everything they can to help ensure the safety of both staff and visitors to venue. A key response to these challenges is in the form of a structured approach to risk management. To assist businesses, there are a number of important sources of guidance provided by the authorities, including the HSE at: ww.hse.gov.uk/violence/toolkit/legislation.
Recent years has seen a marked increase in both individual and corporate accountability and an uncompromising approach to sentencing by the courts. A proactive and comprehensive approach to risk management makes business and venues safer but also helps achieve the appropriate standards for broader regulatory compliance, which is crucial to mitigate the substantial financial and reputational risk posed by regulatory intervention.
Richard Salvini is a partner at Plexus Law
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