Proposed tougher penalties for breaches of health and safety legislation set to become law next year could see employees and business owners facing imprisonment. On 16 October 2008 the Health and Safety (Offences) Act 2008 received Royal Assent and the new law will be introduced in January next year.

Small companies are strongly encouraged to evaluate their health and safety provisions to make sure that they conform to the law and avoid the strict new penalities that are coming into action.

The new legislation introduces a power of imprisonment for a wider range of health and safety offences in both the lower and the higher courts. The legislation also imposes greater financial penalties, with the maximum fine available in the magistrates' courts increasing from £5,000 to £20,000 for most health and safety breaches.

It is therefore vital that small business owners are aware of what is legally required of them regarding health and safety for their staff and that all the correct measures and precautions are in place.

The new legislation is driven by a desire to make sentences for health and safety offences sufficient to deter those tempted to break the law
One of the most important impacts of the legislation is that a power of imprisonment will now be available for breaches of sections 7 and 37 of the Health and Safety at Work Act. Section 7 requires all employees to take reasonable care for themselves and others in the way they conduct their work, whilst section 37 addresses the actions of directors, managers, secretaries and other similar officers of corporate bodies.

The recent case involving Chargot Ltd highlights the risks faced by individuals. This case involved an employee who was fatally injured following an incident with a dumper truck. Charges were brought by the Health and Safety Executive against the two companies involved in the project and a director of the group. All three defendants were convicted and heavily fined, with the director, convicted under section 37, personally fined £75,000 and ordered to pay over £100,000 in costs. Whilst this matter has been appealed to the House of Lords, had this offence taken place under the new legislation, the director would have been at risk of imprisonment.

The new legislation is driven by a desire to make sentences for health and safety offences sufficient to deter those tempted to break the law. Despite some business organisations raising concerns about the Act's implications, the Government considers the changes both "reasonable and proportionate".

Whilst the new legislation does not change or add to the existing health and safety requirements, with the threat of tougher penalties, SMEs are encouraged to review their current health and safety procedures and systems. A good knowledge of health and safety legislation and guidance which applies to operations conducted by the organisation is essential, and systems should be in place to include the following:

* Procedures to identify risks and processes in place to manage them
* Reporting procedures on matters relating to health and safety
* Systems for ensuring recommendations from serious untoward incidents are implemented
* Systems for recruitment of competent staff, ongoing training and supervision

The new legislation follows hot on the heels of the Corporate Manslaughter and Corporate Homicide Act 2007. Whilst it remains to be seen how many breaches will result in custodial sentences, the extension of the power of imprisonment highlights the need for SMEs to treat health and safety as an important part of their business.

Andrew Hopkin is an associate at law firm Browne Jacobson and a specialist in health and safety law. For more information visit