Sentencing for near miss events.


M J Allen Holdings, a metalwork casting and machinery company, failed to provide suitable work at height equipment and did not offer to train its employees, an HSE investigation found (note: no harm arose – this was “only” a near miss).

Canterbury Crown Court heard that on 19 September 2014 (i.e. nearly 18 months before the new sentencing guidelines came into force – Feb 2016) three employees of the company’s maintenance team accessed the foundry roof using a mobile elevating working platform, to remove a broken ceiling fan.

The three men were working at a height of 10 metres, and were using crawling boards on the non-ferrous foundry building, when one of the employees slipped, his foot making a hole in the asbestos roof sheeting.

Ashford (Kent) based MJ Allen Holdings, who had ultimate responsibility for safety on site, notified the HSE.

In applying the new sentencing guidelines for health and safety offences, the judge established the company’s level of culpability as medium, with a harm category of 2 (potential for death or life-limiting injury). The company’s turnover (sales of £35m in 2015) also put it in the medium category, meaning that the starting point of the fine was £240,000, with a range of £100,000 to £600,000.

However, because the company entered an early guilty plea, they set the penalty at £160,000 and ordered to pay costs of £5,767, for breaching Regulation 6(3) of the Work at Height Regulations 2005, which requires employers to “take suitable and sufficient measures to prevent, so far as is reasonably practicable, any person falling a distance liable to cause personal injury.”

Simon-Joyston Bechal, Director at Turnstone Law, said:

“even a near-miss incident will now attract a fine based on the injury that was risked, whereas the previous approach to sentencing was more focused on the seriousness of any actual injury”.

If the company had been bigger, with a turnover above £50m, the same sentencing approach would have led to a £400,000 fine (i.e. £600,000 starting point less a third discount for the guilty plea).

Courtesy of SHP magazine.

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Enforcement notice ‘season’

The London Fire Brigade (LFB) have just issued 29 enforcement notices to care homes in London. Whilst vulnerable people in residential properties need to be protected in the case of fire, there are some things that, as professional fire risk assessors, we see a little differently.

The three core breaches of fire safety were cited as ‘fire escape plans, training for staff and signage on fire exits’, but no mention of the means of escape and structural fire protection was made – nor was the existence of an effective early warning system commented on.

The LFB were quoted as saying “We don’t issue enforcement notices lightly.” But our experience in the London and Home Counties areas is that enforcement notices are often issued when, on closer examination, some of the demands for improvement are not necessarily right for the premises under scrutiny.

Worse still, we’ve had more than one client in full panic mode on receipt of an ‘enforcement notice’ when, having finally seen the ‘notice’ ourselves, realised that it is not an enforcement notice at all – it just looks like one! Surely this is a case of bullying business owners into taking action that may not be necessary?

The very fact that so many care homes have been visited suggests that it’s open season on care homes. If one third of London’s care homes have had a visit, the LFB is definitely on the warpath.

We have a number of registered social landlords (e.g. housing associations) as clients and we’ve seen enforcement notices that actually require work to be done that is not necessary in relation to the particular building concerned. Sometimes this is simply because of the time the building was built in relation to subsequent legislation, not because the building is unsafe. Some legislation is not retrospective, although the local fire authorities seem to be trying to persuade businesses in their areas otherwise.

Are we saying landlords should not take steps to keep their residents safe? Certainly not – but we are suggesting that they need to get pragmatic expert advice to ensure they don’t do things that may not be necessary out of fear or panic.

Malcolm Tullett