New sentencing guidelines for health and safety, corporate manslaughter and food safety offences - from 1 February 2016

On 3 November 2015, the Sentencing Council (the Council) published the guidelines on Health and Safety, Corporate Manslaughter and Food Safety and Hygiene offences.
The long awaited Guidelines were published alongside the Response to Consultation and come into force on 1 February 2016.

The guidelines

The Guidelines apply to companies or individuals (aged 18 and older) who are sentenced on or after 1 February 2016, regardless of the date of the offence.
The Guidelines set out a number of steps that the sentencing court will need to go through to establish the appropriate fine. Firstly, the court will need to determine the category of offence. This is based on two stages, the level of culpability and the level of harm. Secondly, starting points (which apply to all offenders, whether they have pleaded guilty or been convicted after trial) define the position within a category range from which to start calculating the provisional sentence. The court is required to focus on the organisation's annual turnover or equivalent to reach a starting point for a fine. The court then consider further features of the offence or the offender that warrant adjustment of the sentence within the range, including aggravating and mitigating factors. Credit for a guilty plea is taken into consideration only after the appropriate sentence has been identified.

Consultation

Responses to the consultation included whether linking fines to turnover was 'too rigid and overly simplistic' and would lead to firms of varying sizes receiving grossly different fines for similar incidents. The Council has, however, adopted this approach and stated: 'We accept that using turnover to determine the size of a business is something of a blunt instrument but we believe the overall sentencing process in the proposed guideline gives sentencers the flexibility they need to ensure the interests of justice are served.'

Very large organisations

It was proposed that a proportionate multiplier be included in the Guidelines to clarify a suitable calculation when imposing fines for very large organisations (i.e. those with turnovers greater than £50 million). The Council decided not to include such a feature within the Guidelines as to do so could, due to the complexity of sentencing very large organisations, hinder sentencers and would conflict with the guidance to 'consider the financial circumstances of the organisation in the round.' This also maintains consistency with the approach in the environmental guidelines.
Instead, the Guidelines state: 'Where an offending organisation's turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence.'

How tough are the new proposed fines likely to be?

Under the Guidelines a large organisation that commits an offence with the greatest exposure to harm (for example, a fatal accident) and with high culpability will see a sentencing range of £4.8 million - £20 million with a starting point of £7.5 million. Large food operators that commit a food safety offence with a serious adverse effect on human health with high culpability will see a sentencing range of £500,000 - £3 million. Individuals that commit serious offences with high culpability can expect custodial sentences or serious fines where profit was a motivating factor in the commission of the offence.

Summary

Companies need to start taking this very seriously. The message in the Guidelines is that:
'the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation.'
If you want to understand the impact of the Guidelines on your business or require advice on how to comply with health and safety laws please contact CRS who will be happy to assist – advice@crsrisk.com

Siemens and RWE fined over £150K following windfarm fatality

Siemens Public Limited Company (plc) and RWE Innogy UK Limited (RWE) were fined after 27-year-old Colin Sinclair was killed when he came into contact with the unguarded rotating shaft of a gearbox within a turbine at Causeymire windfarm.
On Thursday 10 December 2015, Tain Sheriff Court heard how Colin Sinclair was one of two representatives of Siemens along with two engineers from RWE carrying out an end of warranty inspection at the windfarm. Mr Sinclair was appointed the senior technician for this inspection. On 16 September 2009, Colin Sinclair and another Siemens employee escorted the RWE staff up to turbine number 18, to the area at the top of the wind turbine where the rotor blades are mounted. Once at the top of the tower, an RWE engineer began the process to pitch the rotor blades into the off position before locking them off to enable the Siemens technicians to carry out an inspection. It was during this process that Colin Sinclair’s harness became entangled in the high-speed shaft coupling, causing him to be pulled in towards the shaft. The emergency stop cord was pulled and the emergency services called. Colin Sinclair was pronounced dead at the scene.
A Health and Safety Executive (HSE) investigation found that the gearbox had been inadequately guarded since January 2009, exposing the rotating shafts.
Siemens Public Limited Company pleaded guilty to breaching Section 2(1) of the Health and Safety at Work Etc. Act 1974, and was fined £107,000.
RWE Innogy UK Limited pleaded guilty to breaching Section 3(1) of the Health and Safety at Work Etc. Act 1974, and was fined £45,000.
CRS says “This death was easily preventable and involved a risk which is well known and appreciated throughout all industries. It is disappointing that this risk wasn’t addressed despite the lack of guarding being known to those involved. This incident should serve as a reminder to employers of all sizes that failing to take simple precautions can have catastrophic consequences.”

National Grid plc fined £2M following death of 11-year old boy in Burnley

One of the UK’s biggest gas distributers was sentenced today after admitting safety failings in relation to the death of a young boy. On 24 April 2014, 11-year-old Robbie Williamson and two friends were crossing the Leeds and Liverpool Canal using a pipeline running on the outside of Dugdale Bridge at Lowerhouse Lane, Burnley. As they were crossing, Robbie fell from the pipe and into the canal below. He was taken to Royal Blackburn Hospital but died later that day.  The cause of death was recorded as being caused by drowning and a head injury.
Preston Crown Court was told by the Health and Safety Executive (HSE) prosecuting that National Grid Gas plc failed to properly protect the exposed pipeline from the risk of injury from falls from the pipeline. The boys were able to climb on to the pipe from a ramp (footpath) running from the road to the canal tow path.
National Grid Gas plc operates the gas distribution network delivering gas to approximately half of the homes and businesses in the UK through its network of pipes. The court heard National Grid Gas plc have a procedure for inspecting this type of above ground pipe crossing, and requirements for providing measures to prevent access on to these structures. However their records incorrectly showed the pipe was buried within the bridge rather than exposed on the outside of the bridge, therefore this crossing had not been subject to any inspections and had no access prevention measures fitted. Maintenance work had been carried out on the pipe in the past but the records had not been updated.
It is typical for pipe crossings to have steel ‘fans’ or similar measures fitted to prevent access. The court was told such measures have been fitted to the pipe crossing following the incident after a HSE improvement notice was issued.
National Grid Gas plc, of The Strand, London, pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974 and was fined £2,000,000 with £36,102.90 costs.
HSE Inspector Ian Redshaw, said after the hearing: “This was a tragic accident which has had a devastating impact on Robbie’s family and friends. The company failed to assess the risks associated with this pipe to members of the public, and as a result they had not put in place any measures to prevent or deter access onto the pipe. This was a significant cause in Robbie’s death.”
CRS reminds organisations of all types of the value of independent audits which can be used to confirm and validate that ‘presumed’ controls are ‘actual’, effective controls.

Sonae Ltd and Valmet Ltd fined over £400K with over £200K in costs in "inspector's most horrific case"

Two North West companies have been fined following the death of two workers at a Merseyside woodchip factory. James Bibby, 25, and Thomas Elmer, 27, were both killed when carrying out maintenance work on a conveyor belt at the Sonae factory in Kirkby.

Liverpool Crown Court heard recently (7 December 2015) that on 4 December 2010 Mr Elmer, employed at the time by Metso Paper Ltd and Mr Bibby, a self-employed contractor for the same company, had been asked to replace part of conveyor belt at Sonae Industria (UK) Ltd’s Merseyside plant. While carrying out the work the conveyor suddenly and unexpectedly started to operate, dragging both men into the machinery causing catastrophic fatal injuries.

An investigation by the Health and Safety Executive (HSE) found multiple failings by both companies to properly assess the risks associated with the work James and Thomas were carrying out.

Sonae Industria (UK) Ltd’s many failings included not properly assessing the risks associated with the work on the conveyor or sharing these with contractors, not having in place a proper process for managing contractors or a procedure for isolating dangerous machinery, and failing to train or check the competence of workers.

Valmet Ltd took over Metso Ltd in 2013 and was prosecuted for failing to ensure the site its workers were visiting had sufficient risk assessments and processes in place. It also failed to ensure its workers and contractors had adequate training for the tasks to be carried out or provided with the necessary information on the work they were being asked to perform.

Sonae Industria (UK) Ltd was fined £220,000, with costs of £107,000, after pleading guilty to breaching Section 3 of the Health and Safety at Work etc Act 1974.

Valmet Ltd was fined £190,000, with costs of £107,000, after pleading guilty to breaching Sections 2 and 3 of the Health and Safety at Work etc Act 1974.

Following the case, HSE’s Principal Inspector Mike Sebastian said: “James Bibby and Thomas Elmer should not have died. This is perhaps the most horrific case I have ever had to deal with and has had a devastating effect on both families. Carrying out straightforward risk assessments is about protecting workers from serious harm, suffering life-changing injuries or, in this tragic case, death. If both companies had put in place the simple steps to protect their workers’ safety these two young men would still be with us today.”

Rosanna Hesketh, Thomas Elmer’s sister, said: “Thomas was the best big brother, he was the perfect mix of kind, loving, funny, with a little mischief, he would do anything for me. He protected me all my life, just knowing he was there made me feel safe. He was my confidante as well as my partner in crime and when he was killed, part of my heart died with him. The complete disregard for any health and safety protocol that Sonae and Metso should have followed has not only robbed me of my brother, my parents of their son but my children of their only maternal uncle.”

Bev Bibby, James Bibby’s mother, said: “The day James died it felt like someone had ripped inside my body and taken half my heart away. My younger son works in the same industry and faces everyday doing the same job, knowing his brother died because of someone else’s negligence. I worry every day history will repeat itself. I don’t think we, my son and I, will ever get over James’ death.”

And the nominations are......

CRS will shortly be announcing the winner of their annual prize draw  and the nominations are:

Peter Somerfield – Somerfield Maritime Ltd

Tracey Somerfield – NHS

Kerri Ashcroft – The Caswell Group

Thomas Appleby

Candice Irving

David Whiting – Interconnector UK Ltd

Kevin Smith – Arrowsmith Engineering

David Lindsay – Liberty Gas

Louise Fish – Kerry Foods

Peter McGinty – Perfect Home Stores

George Russell – Ministry of Defence

Lee Burden – Abellio Greater Anglia

Jason Charlton – Fisher German

All the above nominations were chosen as our ‘Delegate of the Month’ for 2015 and we wish them all Good Luck in our Prize Draw that will take place later today (Tuesday 15^th December)

The lucky winner will be notified and a £50 M&S voucher will be on its way to the lucky winner just in time for the Christmas.

Poundworld fined £63,000 for selling non-reflective hi-vis vests

Poundworld has been fined over £63,000 after it sold non reflective hi-vis jackets, with the logo ‘be safe, be seen’. Poundworld sold more than 95,000 of the vests for £1, but tests carried out by trading standards revealed that the reflective nature of the jackets was no more than 2.4 per cent of what it should have been.
Joe Tyler, Hertfordshire Trading Standards, bought the jacket from Poundworld on Watford High Street. He said: “Whilst the produce purported to be a high visibility safety vest, it was in fact no such thing. It was little more than an item of clothing. Neither the fluorescent yellow background material or the retro-reflective strips were of a standard anywhere near that which was necessary to ensure the visibility of the user.”
In response to Trading Standards’ questions, Poundworld said the vest that was tested was part of a batch of 7,200, but over a period beginning in January 2010 it had imported and sold 95,700. The company, which has its HQ in Normanton, West Yorkshire, appeared for sentence recently (27 November 2015), having pleaded guilty to two offences of engaging in misleading commercial practice at an earlier hearing.
Stan Reiz, defending, said the Chinese manufacturers had provided test certificates that were misleading to Poundworld . He said there had been no complaints or safety incidents reported. But he said: “The company admits it fell short of due diligence. It has now changed its policies and has increased its UK test centres.”
Judge John Plumstead fined Poundworld £15,000 and ordered it to pay £42,395.10 in an agreed confiscation order as well as £6,123.16 prosecution costs. He said: “People would have gone out of the shop believing they had improved the safety of their children or themselves when out after dark on foot or on a bicycle. The fine demonstrates the court’s disapproval of those who put on the market safety aids that are not safety aids at all.”
The jacket was withdrawn from sale on June 5 2014 and the national recall took place in January this year.
CRS says "We advise our readers to check their stocks and those issued to their workers if purchases might have been made from this vendor".

Sole-trader fined almost £20K after teenager loses fingers in unguarded machine

Richard John Pullinger, a sole trader that recycles cardboard in Polesworth, was fined after a 19-year-old employee suffered severe damage to his left hand when it was drawn into a roller press that had no guards on it.
Nuneaton Magistrates Court heard that the employee, Wade Moore, who had only been working for Mr Pullinger for three weeks, had his hand on top of cardboard as it was being drawn into the rollers. There was no emergency stop button on the machine but another operator realised what had happened and put the machine quickly into reverse mode.
Mr Wade lost a third of his fifth finger, part of his ring finger and thumb, had multiple fractures and lacerations of his hand and needed a five hour operation to limit the damage. He still requires physiotherapy treatment and has had a further operation on his thumb.
An investigation by the Health and Safety Executive (HSE) found that the machine was at least 26-years-old and was in a poor state of repair. A prohibition notice was immediately issued after the incident and a guard was fitted to the machine days later.
Richard John Pullinger trading at Unit 5A Pooley Hall Farm Pooley Lane, Polesworth, was fined £13,000 and was ordered to pay £6,143 in costs after he pleaded guilty to a Contravention of Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1998 as effective measures had not been taken to prevent access to the dangerous parts of the roller press.
The family expressed their concern and said “people do not realise the consequences this accident has had on this family – to put guards on a machine could have saved us a lot of heart ache. It was such an easy thing to do and the accident could have been easily avoided with just a piece of plastic to be put in place “
CRS says “This life changing incident could have been avoided if the owner of the business had fitted a simple inexpensive guard to stop a young man’s hand becoming trapped and passing through this roller press.”