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Impact of the new health and safety sentencing guidelines

July 2016

The guidelines for offences concerning health and safety, corporate manslaughter and food safety and hygiene came into force on 1 February 2016. They also apply to offences committed before that date. Regardless of whether any harm was actually caused, the courts are required to assess the overall seriousness of the offence based on the offender's culpability and the risk of serious harm.

In the article The Sentencing Council's new guidelines, the important features of the guidelines, as well as the risks of impending higher fines and penalties, were discussed.

The guidelines state ‘The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to operate within the law’.
Guidelines in action

In the 4 months since coming into force there have not yet been enough cases for practitioners to gauge the full effect of the new guidelines, but there have been some which show how the courts are implementing them.

The HSE have reported that ConocoPhillips (UK) Limited admitted serious safety failings following two uncontrolled gas releases and a further controlled but unexpected gas release which occurred on the Lincolnshire Offshore Gas Gathering System. Although the offences occurred between 30 November and 1 December 2012, they were subject to the new guidelines when it came to sentencing.

It was fortunate that there were no fatalities on the site but the Court found that the lives of 66 workers were in danger had an ignition occurred. The Company was found guilty of three breaches of the Offshore Installations (Prevention of Fire and Explosion, and Emergency Response) Regulation 1995. It was fined a very significant £3,000,000 - £1,000,000 for each offence.

In addition, the company was ordered to pay costs of £159,459. The HSE inspector found that there was a deviation from safety procedures. The underlying cause of the incident was the inadequate implementation, control and oversight of the permit to work system, and the common isolation procedure.

The new guidelines re-iterated that health and safety offences are concerned with failures to manage risks to health and safety and did not require proof that the offences caused any actual harm. The offence is made out in simply creating a risk of harm as occurred in this instance.

The fines imposed indicate that the Courts are now willing to levy much higher fines that, prior to the new guidelines, would have been issued for serious breaches resulting in multiple fatalities such as the case of Network Rail which was ordered to pay £3,500,000 in 2004 for their part in the Hatfield rail crash, in which 4 people died and 70 people were injured.

In another recent case, Travis Perkins was fined £2m and ordered to pay costs of £114,812.76 for two health and safety offences in relation to the death of a customer at its Milton Keynes store in 2012. The incident occurred when a customer had been loading materials onto the roof of his car and fell backwards in front of a company vehicle that crushed him. There had been inadequate safety assessments of vehicles operating in the yard and the judge said this “was an accident waiting to happen”.

Balfour Beatty Utilities Solutions Limited was fined £2.6m and ordered to pay costs of £54,000 following an accident six years ago when a subcontractor’s employee was killed when working in a trench that collapsed. The police investigated but once satisfied the alleged failings did not amount to corporate manslaughter passed the case to the HSE who took a very long time to bring proceedings. Despite the delay the new guidelines still applied.

McCains, the frozen food company was fined £800,000 for safety failings after an engineer sustained a very serious arm injury when he was examining a factory machine belt in August 2014. It was not disputed that the machine did not have the correct guard fitted.

Last month ScottishPower was fined £1.75m for a breach of section 2 of the Health and Safety at Work etc. Act 1974. The case involved a worker who was seriously scalded by an escape of high temperature steam at a power station in Scotland in 2013. HSE said that ScottishPower was aware of a defective valve but failed to repair or replace it and the plant controller was injured when he opened the valve.

The most noteworthy of the pending cases for sentencing concerns Merlin Attractions, the owner of Alton Towers. The company recently admitted charges of health and safety breaches following the well publicised incident last year concerning the Smiler rollercoaster crash that left five people seriously injured. At the hearing in the magistrates’ court the company was told that it “may be ordered to pay a very large fine”.
Action to take

Whilst insurers will not cover the fines imposed for such offences, they will often have to pay the costs of legal representation and damages for death or injuries. Accordingly they would be well advised to remind businesses policyholders to carefully review their existing risk management and assessment systems to ensure regulatory compliance and minimise risks of breach and of consequential claims.

Further, businesses should be reminded to ensure that the systems and supporting documentation can be easily evidenced if required at short notice following a notifiable incident.

In addition, businesses should be reminded that a Director should be specifically appointed to have responsibility for health and safety within the business. Where the reviews identify concerns, detailed assessments and actions to remedy the concerns including training will need to be undertaken promptly to ensure the risk (and consequences) of breaches of health and safety law are avoided or at least reduced as far as possible.

For detailed advice on the issues and how businesses and their insurers can minimise risk and respond to a notifiable incident, please contact Alan Davies.

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