Risk of harm, rather than simply harm itself, is increasingly the crucial factor on which the HSE and the courts are coming down hard.
Recent court decisions applying the Sentencing Council Definitive Guideline for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences have highlighted that H&S offences are concerned with failures to manage risks and do not require proof that the offence caused any actual harm.
Furthermore, these court decisions demonstrate that, even where there is no actual harm, offenders can be liable to significant fines.
In August 2016, Walltopia, a construction firm, was fined £500,000 for a breach of the Work at Height Regulations 2005 for failing to ensure work at height was properly planned, supervised and carried out safely, despite the absence of any incident causing injury. The Health and Safety Executive’s investigation, following a report from a member of the public, established that work was taking place on a section of roof 11 m off the ground without the use of any means to prevent two workers falling from open edges.
No actual harm
In another case, where there was no actual harm arising from the breach, G4S Cash Solutions (UK) was fined £1.8m for failing to protect its employees from the risk of Legionnaires’ disease.
Although an investigation by Harlow Council could not establish that the site in question had caused anyone to contract the disease, the company still received a significant fine because of its failure to protect employees from the risk of harm due to serious risks within the building’s hot and cold water distribution system.
“In cases where a H&S breach has caused significant actual harm, we have seen very high fines across a range of sectors, with several fines in excess of £1m”
In cases where a breach has caused significant actual harm, we have seen very high fines across a range of sectors, with several in excess of £1m. Although the majority of those organisations fined in excess of £1m to date have turnovers far in excess of £50m, the courts have not deemed it necessary to move outside the suggested range for ‘large’ companies.
This is despite the Sentencing Council guideline, which came into force on 1 February 2016, stating that it may be necessary to move outside the suggested fine range for those organisations with a turnover greatly in excess of £50m, in order to achieve a proportionate sentence.
In a recent judgement in the case of R v Merlin Attractions Operations Limited, arising from a serious incident involving a rollercoaster ride at Alton Towers in 2015, the court accepted that it was arguable that the company (with a turnover in the region of £400m) was one that would justify moving outside the suggested offence range.
However, in the court’s judgement, a proportionate sentence could be achieved within the category range despite the judge’s finding that there were “powerful aggravating factors in a case involving a serious breach of a high duty of care which put thousands at risk of death or serious injury over a long period of time”.
The £5m fine imposed in that case remains the high mark in respect of fines imposed to date for health and safety offences under the guideline.
In view of the court’s reluctance, so far, to move outside the suggested range for large companies, it may be some time before we see a court stepping outside the highest category range for a large company, which is £2.6m to £10m where an offender’s breach is assessed as very high culpability and in the highest harm category.
Those organisations involved in construction activity are particularly vulnerable to criminal investigations and prosecutions due to the hazardous nature of their activities – statistics released by the HSE reveal that last year, there were 43 fatalities to workers in the construction sector, almost half of which were falls from height.
Such organisations should never assume that the absence of an injury will deter the regulators from investigating the adequacy of their health and safety systems.
As the highlighted cases indicate, it is the risk of harm, and not the actual harm, that is a key factor and one which will continue to attract the unwanted attention of the HSE and the courts in the years to come.
Chris Baranowski is a partner in the national safety, health and environment team at DAC Beachcroft