UK: New Health And Safety Sentencing Guideline Comes Into Force

Last Updated: 3 February 2016
Article by Sam Boileau, Eleanor Reeves and Jennifer Travers

The definitive guideline on Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences (the Guideline) was published on 3 November 2015 and comes into force for all matters sentenced on or after 1 February 2016.

For large organisations (those with a turnover of more than £50 million) committing serious breaches of health and safety legislation, a fine of £10 million could be imposed. Very large organisations could be awarded fines which far exceed this.

The Guideline is a welcome development. Prior to the Guideline there was no easy or consistent method for judges to calculate health and safety fines, with legislation frequently providing very wide discretion to impose an unlimited fine, and no clear starting point. The Guideline will introduce certainty in a significant number of cases: in 2014 680 sentences were handed down for offences which would now fall within the Guideline. The court is required to follow the Guideline, unless it would be contrary to the interests of justice to do so.

The Guideline, which will apply to all the main health and safety offences, will provide judges and magistrates with a system according to which the facts of a case can be fed in to a decision "matrix" to help them come up with a fine to suit the individual circumstances of the offence. The system is broadly similar to the system established in environmental sentencing guidelines already introduced on 1 July 2014.  Both lawyers and operators have found this type of system to be logical and helpful, and courts appear to have interpreted the guidelines sensibly and reasonably.

Some ambiguities have been clarified since the Guideline was consulted on, including an explanation of some of the culpability levels. Significantly, the word "voluntary" has been added in relation to remedial steps taken by an offender, meaning an organisation may not be able use a remedial step which formed part of an improvement notice as mitigation. This underlines the need for discussions with the regulator as soon as non-compliance is recorded, in an attempt to voluntarily agree measures which can then be used in mitigation.

Another important point is that the Guideline states that organisations are required to have remedied failings involved in the offence and a failure to do so by the date of sentencing means they will be "deprived of significant mitigation". This underlines the importance of opening a dialogue with the regulator as soon as possible and certainly in good time before any sentencing hearing. 

How does the Guideline work?

Under the Guideline, the court has a nine-step approach (reproduced at the end of this note) to follow in order to calculate a sentence. The stages include determining the category of the offence (for both culpability and harm risked), establishing the harm risked, ensuring the fine fulfils the objectives of sentencing and considering other factors.

The four categories of culpability are similar in some respects to – but not the same as – the environmental sentencing guideline categories of culpability (low, negligent, reckless, and deliberate).  The harm categories range from the highest at 1, which involves death or physical impairment with lifelong dependency on third parties for care of basic needs, to the lowest at 4.

For large organisations the sentencing matrix ranges from £3,000 for a harm category 4 offence with low culpability to £10 million for a harm category 1 offence and very high culpability.

As with the environmental guideline, once the court has come up with a figure, it will then take into account aggravating and mitigating features such as deliberate concealment of the activity, poor health and safety record, falsification of documents, as well as matters such as no previous convictions, evidence of steps taken to remedy the problem and effective health and safety measures in place.

The consequences

Perhaps the most important consequence of the Guideline will be a greater degree of predictability and certainty when it comes to forecasting the size of fines which are likely to be imposed on conviction. 

The Guideline will also probably have the effect of increasing the average size of fines, especially for large and very large companies. The Guideline makes clear that fines must be sufficiently substantial to have a "real economic impact which will bring home to both management and shareholders then need to comply with health and safety legislation".  This hard-hitting approach to sentencing has been given judicial backing in a number of important recent sentencing decisions under health and safety and environmental law. For example, in R v Thames Water1 in June 2015 a fine of £250,000 was issued after a guilty plea was entered for an offence arising from the discharge of untreated sewage into a brook flowing through a nature reserve. The Court of Appeal said not only should the fine be upheld, but it was lenient and the court would have been prepared to uphold a much higher fine.

It is also possible that the Guideline will increase the level of fines for non-fatal accidents. Whilst enforcement has traditionally been outcome focused, it is worth noting that one of the purposes of the Guideline is to punish employers and companies that expose employees or third parties to risk.  Accordingly, an organisation that has exposed someone to a very severe risk of death should receive almost the same fine as if a death had occurred. The very high culpability category requires "deliberate breach of or flagrant disregard for the law".

Another consequence – especially important for defendants within corporate groups – is that courts are likely to scrutinise company financial information more closely in reaching a decision on sentence.  Parent company accounts, for example, could be deemed relevant for sentencing purposes if the prosecution is of the view that resources of a parent company are available to the offending company and can properly be taken into account.

The risk that company accounts and other information relevant to the financial means of the employer company may be closely scrutinised in any sentencing hearing should encourage companies to review their corporate activities and ensure they are happy with the way their business is structured.  For example, one issue to check in large corporate groups is whether, in the event of a prosecution, exposure to health and safety fines would be "ring fenced" within the relevant business division or would potentially affect a wider business group. 

Finally, companies can use the Guideline to build contingency plans, e.g. strategies to ensure that, if the worst does happen, they can take quick and decisive steps that are consistent with the Guideline to mitigate exposure to fines. This can be an important exercise in liability mitigation since fines cannot be insured, so will always go to the bottom line.

Step-by-step sentencing

Step 1

Determining the offence category.

Step 2

Starting point and category range.

This requires the court to look at the matrices for the organisation and categorisation of the offence.

Step 3

Check whether the proposed fine based on turnover is proportionate to the overall means of the offender.

Step 4

Consider other factors that may warrant adjustment of the proposed fine.

This allows the court to consider any wider impacts of the fine within the organisation, such as impact on being able to make restitution to victims, or the employment of staff. 

Step 5

Consider any factors that indicate a reduction, such as assistance to the prosecution.

Step 6

Reduction for guilty pleas.

Step 7

Compensation and ancillary orders.

Step 8

Totality principle.

If sentencing for more than one offence, consider whether the total sentence is just and proportionate to the offending behaviour.

Step 9

Duty to give reasons for and explain the effect of the sentence.


1 R v Thames Water [2015] EWCA Crim 960

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
21 Sep 2017, Seminar, London, UK

Is there such a thing as "energy law"? What do "energy lawyers" do? And why should it be of interest to anyone else?

28 Sep 2017, Seminar, London, UK

On 26 July the FCA published its long-expected consultation paper on the extension of the SMCR to all FCA-authorised firms. The so-called "core regime" introduces the key concepts of regulator-approved senior managers, firm-approved certification staff and conduct rules applicable to virtually all staff.

3 Oct 2017, Conference, Zurich, Switzerland

As the founding Partner of the Europe-Iran Forum, Dentons Europe will once again support this year’s event. This compelling event which explores all Iran-related topics will take place in Zürich on 3rd and 4th October.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.