The new health and safety sentencing guidelines seem to be having more impact on companies, but the weighting is heaviest on SMEs

In March 2014, construction made national news for the worst possible reason, when worker Rene Tkáčik was killed working on Crossrail, one of the UK’s highest profile schemes. Last month, the accident was at the centre of public attention again, as the contractor consortium on the section of the project Tkáčik was working on – a joint venture comprising Bam, Ferrovial and Kier – was fined more than £1m for this and two other serious safety breaches.

On the face of it, a million pounds is a sizeable sum; one that, pulled out in a headline, sounds likely to spur the industry to address the safety problems that mean construction is, still, responsible for a third of UK workplace deaths.

The breakdown of the fine, however, might strike some as surprising. The bulk, £600,000, resulted from an accident in 2015 in which another worker, Terence Hughes, was crushed by a tipper truck, suffering severe leg injuries. In contrast, just £300,000 of the total was related to the death of Tkáčik.

It has been a long-standing complaint of unions that the fines for fatalities in the construction sector are not high enough to deter companies from dangerous practices in an industry which, because of the nature of the work involved, already carries potential risk. As Phil Whitehurst, the GMB’s national officer for construction, put it to Building this week: “The actual fines have to reflect the seriousness of what is being caused.”

There is evidence that under the new regime fines are hitting companies harder

New sentencing guidelines introduced in February 2016, billed as the most fundamental change to health and safety enforcement for more than 40 years, were meant to address this issue by tying the level of fines to companies’ revenue. As part of the same guidelines, courts are advised to give more weight to harm risked than caused, an approach which helps to explain why the comparative level of fines for different incidents may be unexpected.

There is evidence that under the new regime fines are hitting companies harder. Fines of more than £1m are becoming much more commonplace, while in construction, the total sum of fines in the year to 31 January was, at £13m, 83% higher than the previous year, according to analysis by law firm Clyde & Co.

Even so, there is another statistic to watch out for: the number of safety inspections on construction sites. According to figures obtained by the Unite union under a Freedom of Information request, there were 14% fewer unannounced inspections in 2016/17 compared with a year earlier, which has led to concerns that an increased level of fines could, in theory, disguise the fact that fewer individual breaches are being caught.

It is too early to say for sure whether the increase in fines is leading to a renewed focus on safety in the industry, but the signs are positive: the HSE recorded 30 fatal injuries in construction for 2016-17, which is down from 47 the previous year.

However, Clyde & Co’s analysis throws up a disconcerting trend between the level of fines for SMEs – typically being between 1.5% and 3.75% of turnover – and larger firms, which the law firm says were “yet to be fined anything like 0.1% of their turnover” during that first year.

 To change [its dangerous] image construction first needs to improve the reality of its safety record

This appears to go against the grain of the proportionality that sits at the heart of the new regime. And commentators predict courts are more likely to address this disparity by increasing fines for larger firms, than by reducing those levelled at SMEs.

Contractors of all sizes – operating as they often do on paper-thin margins – are likely to be concerned about such a move, particularly at a time when the sector’s growth forecasts have just been cut again amid continuing economic uncertainty.

But on top of the obvious moral argument for higher fines, such a move – if it proves a greater deterrent to safety breaches – should ultimately benefit the sector. The industry, facing a huge skills shortage and urgently needing to recruit more workers, is still dogged by the perception that it is a dangerous sector, and to change that image it first needs to improve the reality of its safety record.

Meanwhile, if large firms are concerned about the potential impact of bigger fines for safety breaches, it provides an added incentive to invest in technology to change the way riskier work is carried out. Why send a surveyor down the side of a tower in a harness to check on work done, if a drone could do it instead?

Sarah Richardson, editor