The revised sentencing guidelines for health and safety offences, introduced in February 2016, has meant greatly increased fines for offences across all sectors, including agriculture. Helen Devery, head of health & safety and partner at law firm BLM, explores the impact the guidelines continue to have on organisations and individuals within farming.

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The new guidelines mean that organisational safety has been put into sharp focus and hefty fines are promised for those companies failing to protect employees against known and preventable safety risks. Since then, fine values have rocketed – in farming, this has seen some fines reach £400,000.

The guidelines require courts to consider culpability, the seriousness and likelihood of harm caused or posed together with turnover. A business with a turnover in excess of £50 million could face fines of up to £10 million for the most serious offences, whilst corporate manslaughter charges could incur fines reaching £20 million. In the three years since the guidelines were introduced, fines have seismically increased. The ten most significant fines handed down total £30.4 million.

One size does not fit all

Whilst large organisations have grabbed the headlines for the huge fines, the majority of prosecutions are brought against much smaller businesses; these may lack the manpower or financial resources to adequately fund well-structured safety management, and often do not have the same access to health and safety information, resources or support. The fines are commensurate with turnover and whilst smaller businesses rarely face seven figure fines, they can be subject to significant fines running into the hundreds of thousands – potentially catastrophic for their organisation. No court sets out to destroy a business and its ability to remain viable following a fine is taken into consideration; however, this does not mean the fine will not be punitive and the impact must be felt across the business.

Culpability can scale the size of a fine considerably, sometimes from seven figures to a lower six figure sum. If an organisation admits guilt in the event of a breach, but is able to demonstrate and evidence a progressive approach to health & safety (e.g. regular risk assessments, minutes for meetings discussing existing risks and how to solve them), this can count in reducing the level of culpability, and therefore the size of the fine.

In addition, last summer the Sentencing Council announced increased sentences for individuals convicted of gross negligence manslaughter (GNM). GNM was initially excluded from the 2016 guidelines, and this new guidance adopts a more punitive approach to sentences; with the most serious cases seeing individuals face up to 18 years in prison – current sentences for these cases rarely breach the ten year period. Significantly, the sentences are retrospective, so will apply to all cases heard before the courts after November 2018, irrespective of the date of offence.

Farming fines escalate

Fines for agricultural health and safety breaches have totalled over £1 million since 2016. Whilst the largest fines in farming have been less than in construction or manufacturing, the incidents have nonetheless been serious.

Fatalities and life-changing injuries are a common feature of agricultural health & safety fines; the largest fine handed down in agriculture to date was to G W Topham & Sons, an agri-business which was ordered to pay £400,000 following the death of an employee in a tractor incident.

Gibsons Joiners and Builders was fined £2,000 in 2017 after a member of the public was injured by a falling branch. It is essential that agricultural companies ensure that as well as keeping employees safe, their operation does not also expose the general public to risk of harm.

Similarly, J Kelly and Sons was fined £10,000 when a child fell from a tractor on their parent’s farm, leading to a leg amputation. As covered by the Prevention of Accidents to Children in Agricultural Regulations 1998, the incident emphasises the importance of keeping all people protected from harm in farming, whether an employee or not.

The risks farmers face

Farming is a hazardous industry and the risk of harm is widespread across multiple operations.  The risk of harm is a feature of the guidelines so organisations that put employees or the public at risk can be prosecuted irrespective of whether there is an actual injury. 

So, in practice, a system of work which exposes employees to risk is vulnerable to a prosecution. The more employees exposed to the risk is taken into consideration, as is the length of time that risk has existed. It is therefore essential that thorough, pro-active risk assessments are undertaken and regularly reviewed.

As well as the use of heavy machinery, there are many and varied aspects of risk in agriculture, from hazardous substances to lone working policies. With many tasks undertaken alone, frequently in remote outbuildings or fields, workers are at risk of injury or even psychological harm from isolated working conditions. Traffic management around the farm with proper segregation of people and vehicles is a key risk, as is working at height; in 2017, Toft Partnership was fined £60,000 after a long-serving farm manager died after falling 14 feet whilst dismantling a roof.

Interaction with animals must be kept under close review, as there have been a number of deaths caused by crushing injuries from cattle; this was the case for farmer Brian Godwin, who was handed a 12-month sentence (suspended for two years) and a fine of £30,000 in 2016 after a member of the public was crushed by his cattle in 2013.

A sad statistic within agriculture is the number of those killed above the age of 65. An ageing workforce is at greater risk of harm, and adjustments to health & safety policies are necessary to protect vulnerable workers – yet another feature of health & safety risk management.

Looking forward

Stress in the workplace bubbles under the radar in many industries, including farming. The long hours, isolated working conditions and high-pressured nature and turnover of work makes agriculture a high-risk industry for stress-related conditions; ONS statistics from 2018 show the industry has one of the highest suicide rates amongst workers. The HSE recently developed a toolkit to help companies address and support employees experiencing stress-related conditions and though there is currently no formal regulation in place to address this (beyond the Health & Safety At Work Act 1974’s umbrella requirement of an employers’ ‘duty to protect’), this public declaration of interest suggests it may be a matter of time before measures are introduced.

In some companies, a culture of confusion, or even disinterest, can exist in response to health & safety regulation. It is therefore vital to tackle this culture from the top down, and manage regulations in a proactive manner which leads to real change for the safety of staff.

The last three years have sent a stark message across all sectors and farming remains a very high risk industry. Engagement with safety issues and education across the industry is key to ensuring that the safety statistics improve. Managing risk must be a priority in this already challenged sector. Focusing on managing risk with farming groups and their support networks may help reinforce the ongoing and critical messages around safety.