Last reviewed 4 September 2019
Robert Spicer considers evidence on the impact of the sentencing guidelines for health and safety breaches issued by the Sentencing Council in February 2016.
The detailed Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences, Definitive Guideline was created to ensure that there were comprehensive sentencing guidelines covering the most commonly sentenced health and safety offences in England and Wales. The document sets out a step-by-step approach, detailing the factors to which court should have regard in deciding sentences in health and safety cases. For corporate manslaughter cases there is no limit on fines. The guidelines suggest £20 million for the most serious breaches.
The guidelines have been described as representing a “sea change” in health and safety prosecutions. Before the document came into force, only four companies had incurred fines of more than £1 million. The intention of the guidelines was to have a real economic impact and, in some cases, to put a convicted company out of business. Calculations are now based on turnover. Convicted companies are obliged to provide detailed financial information and if this is not provided, the court can infer that the company can pay any level of fine.
The application of these guidelines is illustrated by the recent decision of the Court of Appeal in the case of R v Electricity North West Ltd (2018).
The facts, in summary, were that ENW owned, operated and maintained the electricity distribution network in the northwest of England. It had a generic risk assessment which prescribed three methods of accessing wooden poles which supported overhead electrical wires. The methods were a mobile elevated work platform, a ladder, and climbing with climbing irons, a work positioning belt and a fall arrest lanyard. An employee of ENW carried out pole maintenance work. A mobile elevated work platform was not available. The worker used a ladder to climb a pole and secured himself with a belt. He accidentally cut through the belt, fell and suffered fatal injuries. The company was charged with the following offences:
failure to carry out a suitable and sufficient risk assessment
failure to ensure that work at height was properly planned
failure to ensure the health and safety of employees.
The jury acquitted on counts one and three and convicted of count two (work at height). The judge at first instance applied the sentencing guidelines on the basis that the need to plan for work at height was obvious and a systemic failure put the case in the category of high culpability. He started at a fine of £540,000, adjusted upwards to £900,000 to reflect the company’s turnover. The company appealed against conviction and sentence.
The appeal against conviction was dismissed and the appeal against sentence allowed. The Court of Appeal made the following points.
The fact that a risk was not reasonably foreseeable was not a defence to a breach of the work at height regulations by a failure of proper planning, which was a strict requirement due to the inherent danger of working at height.
The verdict had not been inconsistent. There had been a proper evidential foundation for the conviction on count two.
The offence was between low and medium culpability. There was a low likelihood of harm. The right sentence was a fine of £135,000 with no uplift to reflect turnover.
Sentencing large organisation
Sentencing principles in relation to very large organisations were considered by the Court of Appeal in the case of R v Whirlpool Appliances Ltd (2018). D, a self-employed fire alarm and telecoms contractor, was working at W Ltd’s Indesit factory. He was working on fire and heat detector systems from a mobile elevated working platform between hanging baskets on an overhead conveyor system. A basket struck the platform and D fell. He suffered multiple injuries and died 10 days later.
W Ltd was convicted of an offence under s.3 of the Health and Safety at Work, etc Act 1974 (HSWA). It had not required D to prepare a job-specific risk assessment and method statement for his work and had not prepared a detailed permit to work. W Ltd was fined £700,000. The company appealed to the Court of Appeal on the basis that the sentence had been manifestly excessive.
The fine was reduced to £300,000, applying the definitive guideline. The Court set out a detailed analysis of the guidelines. W Ltd was a “very large organisation” with a turnover of several multiples of £50 million. The starting point for the fine should be £500,000, reduced to £450,000 for mitigation. Taking into account the guilty plea, the appropriate fine was £300,000.
Recent examples of fines
Other recent examples of high levels of fines imposed since the introduction of the definitive guideline include the following.
In April 2016, Merlin Attractions, the owner of Alton Towers, was fined £5 million plus £70,000 costs for the June 2015 Smiler rollercoaster incident. Five people were seriously injured. The incident resulted from Merlin’s failure to assess risk. The company’s culpability was assessed as high, and it had a previous conviction for failing to carry out a proper risk assessment.
In December 2016, the Court of Appeal dismissed the appeal of ConocoPhillips (UK) Ltd against a fine of £3 million imposed by Lincoln Crown Court for breaches of offshore installations safety regulations. These related to three gas release incidents from an offshore gas installation. The Court of Appeal stated that the risk involved was foreseeable and significant and the company had fallen markedly short of a reasonably practicable standard for a safe system of work.
Tata Steel was fined £930,000 in August 2017 for the release of toxic substances. In June 2011 a large quantity of Benzole, a toxic and flammable substance, was released at Tata Steel’s site in Scunthorpe. The site is a top tier Control of Major Accidents Hazards site resulting from the large amounts of highly flammable and toxic chemicals stored on the site.
In March 2018, Southern Health NHS Foundation Trust was fined £2 million under s.3 of the HSWA following the death of two patients. The first, Connor Sparrowhawk, died from an epileptic seizure after being left alone in a bath. This had been an obvious risk. The second, Teresa Colvin, died in a hospital telephone kiosk after using the phone cord as a ligature. The Trust had failed to act on the findings of assessments which stated that it could better control the risks associated with the use of telephones with cords. Both incidents could have been avoided with better supervision and planning.
In May 2018 Faltec Europe Ltd, a car parts manufacturer, was fined £1.6 million under ss.2 and 3 of HSWA after a Legionnaires’ disease outbreak and a dust explosion occurred at the same plant in South Tyneside within a year. The company had failed to effectively manage its water cooling systems and legionella bacteria had grown to potentially lethal levels. Adequate measures had not been put in place to protect workers from explosion risks.
BUPA was fined £3 million under s.3 of HSWA in June 2018 following the death of a care home resident from Legionnaires’ disease. The company had failed to safely manage the care home’s hot and cold water system. The risk of contracting the disease was more acute in care home settings because residents were more susceptible because of their underlying health conditions.