The Health and Safety at Work Act
The Health and Safety at Work Act 1974 imposes a number of obligations on organisations and 'duty holders' (usually employers or owners of an organisation or those in control of premises). It also sets out the general duties owed to all employees and non-employees, including members of the public, volunteers and visitors.
Charities and the act
Charities are not exempt from the act's requirements.
Charities and other voluntary organisations should therefore understand the implications of being involved in a health and safety incident.
Under the Act, governing body members and people or organisations that provide funding or grants for a charity's activities could be considered duty holders due to the element of 'control' they assert over the charitable organisation.
The 2016 sentencing guidelines
The health and safety sentencing guidelines were introduced in February 2016 to provide some uniformity and guidance to judges when sentencing organisations and individuals who are convicted for health and safety offences. The guidelines effectively increased the (potentially unlimited) fine to around £1 million where the offence is considered to have posed a serious risk of harm to relevant persons.
Is there any protection afforded by charitable status?
The guidelines indicate that there should normally be a reduction in the fine if the defendant is a public or charitable body. The reduction is at the discretion of the sentencing judge, but the fine should normally be substantially reduced if the organisation is able to demonstrate the proposed fine would have a significant impact on the provision of its services.
An organisation can be prosecuted even if no actual injury has been caused. Decisions to investigate or prosecute are based on the 'seriousness of harm risked', not the actual harm caused.
However, depending on the size of the organisation and the level of revenue (income) raised, fines could reach £1 million, even when there hasn't been a fatality. In the case of charities, even a reduction of 50% could result in fines in excess of £100,000, which for most charities would have a significant effect on their operations.
Whatever the level of fine, reputational damage can also be significant. There would also be a need to report detailing what had happened as a 'serious incident' to the Charity Commission, which could raise further regulatory issues. Even where charity trustees are not themselves individually prosecuted, they would themselves potentially be under the spotlight because of lack of compliance with statutory requirements and general good practice.
The Shrewsbury & Telford NHS Trust case
Mr Justice Haddon-Cave said during the sentencing hearing for Shrewsbury & Telford NHS Trust in November 2017 that "All organisations, public or private, are accountable under the criminal law…. public bodies are to be held equally accountable under the criminal law for acts and omissions in breach of Health and Safety legislation and punished accordingly." This may be an indication of how judges intend to sentence public and charitable bodies in the future.
The risk to those involved with charities
Directors and trustees, senior managers and employees or workers of organisations that have failed to fulfil their health and safety obligations as duty holders can face investigation and potential prosecution in their individual capacity if they are considered to be responsible for relevant failings in the general management of the organisation or of its activities. They may face unlimited fines, up to two years' imprisonment and for directors up to 15 years disqualification from being a director.
If there is a fatality, any individuals who are subsequently convicted of manslaughter by gross negligence may face unlimited fines and a maximum term of life imprisonment under the Corporate Manslaughter and Corporate Homicide Act 2007.
What charities should do as part of day to day management
Charitable organisations that adopt a preventative approach and regularly review their existing policies and practices will not only be demonstrating good practice but, if an incident does occur, are less likely to find themselves being prosecuted in the first place.
What charities should do if a problem arises
It is therefore important for charities to understand the sentencing framework for health and safety offences (including levels of culpability and seriousness of harm risked) and receive early strategic advice in the event of an incident in order to limit the level of fine that could be imposed following a conviction.