6. Individuals: Breach of duty of employer towards employees and non-employees/ Breach of duty of self-employed to others/ Breach of duty of employees at work/ Breach of Health and Safety regulations/ Secondary liability

Health and Safety at Work Act 1974 (section 33(1)(a) for breaches of sections 2, 3 and 7, Health and Safety at Work Act 1974 (section 33(1)(c)), Health and Safety at Work Act 1974 (sections 36 and 37(1) for breaches of sections 2 and 3 and section 33(1)(c)
Effective from: 01 February 2016

Step 6 – Compensation and ancillary orders

In all cases, the court must consider whether to make ancillary orders. These may include:

Disqualification of director

An offender may be disqualified from being a director of a company in accordance with section 2 of the Company Directors Disqualification Act 1986. The maximum period of disqualification is 15 years (Crown Court) or 5 years (magistrates’ court).

Remediation

Under section 42(1) of the Health and Safety at Work Act 1974, the court may impose a remedial order in addition to or instead of imposing any punishment on the offender.

An offender ought by the time of sentencing to have remedied any specific failings involved in the offence and if not, will be deprived of significant mitigation.

The cost of compliance with such an order should not ordinarily be taken into account in fixing the fine; the order requires only what should already have been done.

Forfeiture

Where the offence involves the acquisition or possession of an explosive article or substance, section 42(4) enables the court to order forfeiture of the explosive.

Compensation

Where the offence has resulted in loss or damage, the court must consider whether to make a compensation order. The assessment of compensation in cases involving death or serious injury will usually be complex and will ordinarily be covered by insurance. In the great majority of cases the court should conclude that compensation should be dealt with in the civil courts, and should say that no order is made for that reason.

If compensation is awarded, priority should be given to the payment of compensation over payment of any other financial penalty where the means of the offender are limited.

Where the offender does not have sufficient means to pay the total financial penalty considered appropriate by the court, compensation and fine take priority over prosecution costs.

Step 7 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour in accordance with the Offences Taken into Consideration and Totality guideline.

Step 8 – Reasons

Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 9 – Consideration for time spent on bail

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.