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Published 23 January 2020
Scottish Courts must now impose a surcharge where a person is convicted of an offence and where that person is fined.
The Victim Surcharge (Scotland) Regulations 2019 came into force on 25/11/2019. These regulations make provision for the operation of the Victim Surcharge and the administration of a Victim Surcharge Fund that is intended to provide practical support to victims of crime and their families.
The Scottish Ministers will publish a guidance on the operation of the Surcharge by 25 May 2020 and payments from the Fund will commence from that date.
The level of the Surcharge is dependent on the amount of the fine imposed, as follows -
Amount of fine
Up to and including £200
Between £200.01 to £500 inclusive
Between £500.01 to £1,000 inclusive
Between £1,000.01 to £2,500 inclusive
Between £2,500.01 to £5,000 inclusive
Between £5,000.01 to £10,000
In excess of £10,000
7.5% of the fine
The reach of these Regulations is extensive as it applies to any offence (including Regulatory breaches) where a fine is imposed on conviction.
Client advice will therefore require to take into account this additional penalty which could have a significant financial impact on sole traders and smaller businesses convicted of health and safety offences. Fines in such cases will routinely see a 7.5% surcharge applied.
Given the majority of fines imposed by courts overall will be at the lower end of the scale – and the general historic difficulty in collecting them – it remains to be seen whether the money accrued to the fund meets the Scottish Government’s expectations. If not, an increase in the surcharges to be applied will impact upon health and safety cases most of all given the size of foreign Regulatory cases.
In July 2019, Colin Bissett, partner in our Regulatory team considered a call for devolution of health and safety law-making as the HSE published their (provisional) accident statistics for the previous year.
The provisional annual figures for work-related deaths in the year 2018-19 showed, to the alarm of workplace safety campaigners in Scotland, a steep increase to 29 recorded deaths – up from 17 in the previous year – which contributed to a rise in the UK-wide figure for deaths in the workplace, to 147.
In Scotland, the increase is mainly attributable to 13 fatalities in the Agriculture, Forestry and Fishing sector, with 10 more deaths than last year in a sector which is crucial to the Scottish economy. According to the HSE’s figures for the UK, this sector carries the highest risk of injury for workers, being some 18 times higher than the average when taken across all industry sectors. A sector which accounts for a small fraction of the UK workforce overall therefore accounts for more than one in five of the fatal accidents recorded last year.
While the figure for the whole of the UK has increased by five deaths from the previous year (described by the HSE as not presenting “any statistically significant change”) the marked increase in the Scottish figure has led Scottish Hazards, a workplace safety charity, to call for devolution of health and safety law to the Scottish parliament. They cite the lack of any prosecutions in Scotland for the offence of Corporate Homicide since its introduction in the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) and the proportionally lower number of prosecutions in Scotland for health and safety offences as justification. Certainly, the significance of the Agriculture, Forestry and Fishing sector to Scotland’s economy suggests addressing health and safety practices among the workforce is a particularly Scottish priority.
Ian Tasker of Scottish Hazards told the Herald newspaper, “The concern is that Scotland has a larger proportion of people working in forestry, fishing and farms, and the problem is these are areas that are hard to enforce. That's not an excuse for not doing it. We need to spend time trying to work round the problems in these sectors. If Scotland had powers over health and safety legislation, we see that working hand in hand with our existing criminal justice laws to ensure everyone who puts workers lives at risk, whether it is employers, individually or corporately, are accountable under law, whether it is health and safety laws or criminal laws.” ( The Herald, Thursday 5th July 2019)
Any fatality in the workplace is a tragedy and takes a dreadful toll on the casualty’s family, friends and co-workers. A significant increase in the fatality statistics justifies public alarm and entitles the question to be asked: “Should we be doing things differently?”
Analysis of the figures released by the HSE by sector suggests where they might focus further regulatory and enforcement action. Across the UK, employers in the Agriculture, Forestry and Fishing sector must address the significantly higher risk of reportable injuries for their employees.
Given that this elevated risk is true for the whole of the UK, those calling for Scottish regulation of health and safety law must explain why the effectiveness of enforcement measures in this sector is a particularly Scottish question. It’s not at all clear that having a devolved enforcement regime in Scotland would automatically result in more attention being given to the Agriculture, Forestry and Fishing sector.
Work–related stress is a major cause of sickness absence in the workplace. The HSE’s 2018/19 statistics (published in October 2019) show that 54% of working days lost are due to stress, depression or anxiety, costing over £5 billion a year in the UK. Furthermore the rate of self reported work-related stress, depression or anxiety has shown signs of increasing in recent years.
At the end of 2018 the HSE announced new First Aid guidance on mental health. This updated guidance signalled a fundamental shift in how mental health support would be assessed and provided for in the workplace. The HSE stated that it had enhanced its first aid guidance to help employers understand the existing need to consider mental health alongside physical health when undertaking their “needs assessment.”
Subsequently, in September 2019 the HSE issued new criteria for investigating cases of work – related stress. This states that it will consider investigating concerns where there is evidence that “a number of staff are experiencing work – related stress or stress - related ill health (i.e. that it is not an individual case)”
The guidance also refers employers to the HSE’s Management Standards which helps to identify and manage six areas of work which can affect stress levels – demands, control, support, relationships, role and change.
Although the above indicates that the HSE is serious about concentrating employers’ minds into properly managing stress and mental health in the workplace, it is for the employer to determine the level of intervention in their employees' mental health needs. This can often be a difficult balance given the complexity of mental health issues and that often, stress can be caused by a mixture of work and extraneous factors.
It will be interesting to see the level of enforcement action which the HSE takes in this developing area of compliance in the coming year.
In Scotland a Fatal Accident Inquiry (FAI) is held following a death in the workplace or in cases which give rise to reasonable suspicion. The purpose of an inquiry is to establish the circumstances of the death and to consider what steps, if any, might be taken to prevent other deaths in similar circumstances. Recommendations may be made if necessary. The Sheriff’s role is to establish the facts surrounding the death rather than apportion blame or make any findings of fault. Accordingly, an FAI is a fact finding procedure and its purpose is not to establish civil or criminal liability, which is similar to the Inquest process.
There have been serious concerns raised over the delay in holding FAIs. The most recent example would be the FAI following the Clutha helicopter crash which occurred in 2013 and in respect of which the Inquiry only commenced some 5 years later. The Sheriff in that case acknowledged the delay in holding the inquiry had “led to a protracted period of uncertainty for all parties and… compounded the distress suffered by bereaved relatives.”
Reasons for delays include limited resources within the Crown Office and Procurator Fiscal Service (COPFS – the prosecutorial body in Scotland), the complexity of cases particularly those with multi-agency involvement, the volume of productions to be considered and lack of court resources and facilities.
The Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 supplemented by the Act of Sederunt (Fatal Accident Inquiry Rules) 2017 came into force on 15/6/2017 and has made significant changes to the legal framework for FAIs. These include giving Sheriffs a more active role in the proceedings. It is hoped that these case management powers will be seen in practice in the coming year, leading to FAIs progressing more expeditiously and efficiently.
For more information or advice on the surcharge on Health and Safety fines, please contact one of our experts in our regulatory team.
+44 (0)141 223 8708
+44 (0) 141 223 7834
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