According to figures published by the Health and Safety Executive, the main prosecuting body for health and safety breaches, 229 people were killed at work in the UK during 2007-08, with the health and safety risk representing a considerable cost to the UK economy.

Until recently, the question commonly asked at the outset of a health and safety investigation ¨C ¡°can I go to prison?¡± ¨C was invariably met with a straightforward ¡°no¡±. However, since the introduction of new health and safety legislation, all employees at every level in an establishment associated with a health and safety offence may be exposed to the risk of imprisonment.

The New Act

The Health and Safety (Offences) Act 2008 came into force on 16 January 2009. The Act introduces additional penalties for both employers and employees who are found guilty of health and safety offences. Although the Health and Safety at Work (etc) Act 1974 remains the key statute for outlining the duties of employers and employees, the new Act allows greater sanctions to be imposed in both the magistrates¡¯ and the Crown Court.

The Act marks a new era in health and safety where any individual within an organisation, from those working in the staff canteen to the lecture theatre, can now be sent to prison for breaches of health and safety law. A custodial sentence will now be a possible sanction for many health and safety offences where previously only a fine could have been imposed. Even relatively minor offences tried in the magistrates¡¯ court could now result in a ?20,000 fine and up to 12 months¡¯ imprisonment. If the breach is deemed serious enough to be tried in the Crown Court, many offences will now carry an unlimited fine and individuals could face up to two years¡¯ imprisonment.

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Until now, the only individual imprisoned for an education-related health and safety incident was a schoolteacher convicted of manslaughter and imprisoned for 12 months after the death of a schoolboy during a school outing. As the law changes, this teacher is unlikely to be the only education professional to receive time in prison.

This significant shift on custodial sentences could have extremely serious repercussions. Individuals can now receive a custodial sentence not only for failing to ensure the health and safety of employees or others who may be affected, but also for more minor offences such as the contravention of an improvement notice or making a false entry in a relevant document.

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Importantly, any employee who fails to take reasonable care of the health and safety of himself or other persons can now be imprisoned.