Chewie I have got a bad feeling about this . . .
From the Captain of the Millennium Falcon to disaster at Alton Towers . . . one year on from the introduction of the Health & Safety Definitive Guidelines on Sentencing
1 February 2016 saw the introduction of the Health & Safety Definitive Guidelines on Sentencing. One year on it is clear that the Courts have embraced the changes in a 12 month period that has seen sentences soar.
The key point to take from cases sentenced this year is that the primary focus of the guidelines is risk. The guidelines implement a stepped approach considering what harm those being prosecuted exposed workers and the public to and the risk of exposure to that harm. Risk has for many years been a pivotal element of health and safety regulation. The guidelines ensure that it is at the forefront of the minds of those imposing sentences. Companies responsible for incidents where no injury has resulted have had sentences imposed that some would expect to be reserved for cases where multiple serious injuries had occurred.
High profile cases in the last 12 months have included the sentencing of the company producing Star Wars: The Force Awakens. The company was prosecuted after Harrison Ford suffered a broken leg and deep lacerations during rehearsals for filming on 12 June 2014. Mr Ford was knocked from his feet and pinned to the floor by the door of the Millennium Falcon.
The Health and Safety Executive ("HSE") reported that the door's steel frame was overlaid with sheets of metal and had a tapered edge. Its operation moved from ceiling to floor in a sharp downward motion. It did not have any automated safety mechanisms to cut out if a person was unexpectedly under the door.
During the case, the HSE's Divisional Director stated that the incident was "foreseeable and preventable and could have resulted in more serious injury or even death".
The sentencing Judge stated that "The greatest failing of all on behalf of the company is a lack of communication, a lack because, if you have a risk assessment and you do not communicate it, what is the point of having one? That is the most serious breach here".
The company pleaded guilty to breaches of the Health and Safety at Work etc. Act 1974, and on 12 October 2016 were fined
£1.6 million and ordered to pay costs of £20,861.22 at Aylesbury Crown Court.
No review of the last year would be complete without mentioning probably the most high profile case dealt with by the courts, the prosecution of Merlin Attractions Operation Ltd. The company pleaded guilty to health and safety failings at Alton Towers resort after 16 people were injured with two suffering leg amputations when the carriages of the resort's Smiler ride collided on 2 June 2015
On 27 September 2016 the company was fined £5 million with costs to pay of £69,955.40.
The Judge sentencing the case described the incident as a "catastrophic failure to assess risk and have a structured system of work" in place. Ultimately, the Judge determined that the practice that had resulted in the incident was not a "one off" and had been undertaken before. The fine reflected the fact that by allowing unsafe practices to happen at its attraction, the company placed many people at risk of very significant harm.
Of course, these companies are large organisations with high turnovers which is another factor that those implementing the Sentencing Guidelines must consider.
To put this in perspective, however, it is worth considering a less well known case sentenced in April 2016 shortly after implementation of the guidelines. Three employees of the medium sized engineering company were working on a fragile roof made of asbestos. They accessed the roof using ladders and crawling boards. There were no personal harnesses or scaffolding frames used and the roof was approximately 3.5 metres above a concrete factory floor. One of the employees put his foot through the roof. There were no injuries but the company was concerned about the disturbance of asbestos. They completed the necessary report and carried on with the roof work the following day using the same means of access.
The sentencing Judge identified that the company had placed the employees on the roof and those working below in the factory at a high risk of harm and, in particular, death. Despite the company having a clean health and safety record and pleading guilty straight away, for incident that did not result in any injuries, it was fined £160,000.00.
The outcomes of the incidents that have been dealt with by the Courts in the last year have been varied, but the message is clear, if an employer places its employees, workers or members of the public at risk of harm, they are now to expect a significant fine.
Health & Safety . . . A Service from the Rollits Regulatory Team
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.