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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Their lives or ours?

Over the past few years there have been a number of cases in the news where either fire-fighters have lost their lives whilst trying to rescue people or people have died when fire-fighters have held back from entering a building.

There is a case currently in progress where fire officers are being prosecuted for involuntary (gross negligence) manslaughter, after fire-fighters lost their lives during a fire.  If they are found guilty they could be jailed for as much as 15 years – and even a suspended sentence will mean they will lose their job and their pension.  Even if they are found not guilty, there’s a danger of stress related illness brought on by the prosecution.

Is this fair when they were only doing the job they signed up for and are paid to do?

The track record

Fire officers are responsible for making the decision about committing crews to an incident.   However, when is it right to send fire fighters in and when should they be held back?

  • Two fire-fighters died rescuing people from a tower block, in Stevenage, where no members of the public were hurt
  • Six members of the public died in their homes (Lakanhal House), but no fire-fighters were injured
  • In an incident in Portsmouth members of the public were rescued, but two fire-fighters died.

The current case is focused on the deaths of four fire fighters who died in a warehouse fire in Warwickshire – where no people had been reported missing.

What happens next?

The prosecution have talked about “what some people see as the irritating trivialities of health and safety red tape”, but fire-fighters are trained to go into situations that are unsafe for most people.  Isn’t that the whole point of having a fire brigade?  They’re there to rescue people when health and safety has come unravelled.  They’ve signed up to walk into danger – in much the same way the Army do.

Of course, nobody wants fire fighters to die – and there is a requirement for dynamic risk assessment, which they have already discussed during the trial.  However, whatever the outcome of this case, there will be a backlash on fire officers throughout the UK.

Every time they have to make a decision whether or not to commit crews – they are likely to hesitate.  Not only will this mean that more innocent people will die – but that the fire service will no longer be effective in doing the job for which they are in existence.

Care cutbacks can cost lives

The government’s latest economies are hitting people who need care to continue to live independently.  This seems to be in opposition to another core ‘value’ they announced, not all that long ago – to reduce fire deaths in people’s homes.

If people who need care have less care, they are more at risk in the event of a fire.  If they live in a building with a stay-put policy – meaning that they don’t leave their home unless the fire actually puts them at risk – and, without care, are unable to self-evacuate when needed, the result will be more deaths from fire, in the home.

Registered Social Landlords have a duty to house and also a duty to identify those who cannot self-evacuate and provide them with a Personal Evacuation Plan.  However, without the resources to provide the facilities to do so they are in a situation where they are unable to fulfil their duty.

Part of the assessment process may identify that people are living in the wrong premises, being on an upper floor where they are unable to get out without help.  This leaves the housing provider with difficult decisions – how do you move someone out of their home?

Even now there is little discussion between the housing providers and the care providers.  The very young, elderly, inform and disabled are already not getting the proper care – what will happen when the budgets are slashed even further?

Less care equals more risks in relation to fires.  That doesn’t equate to a reduction in fire deaths in the home.  Could someone please make their mind up – and consider human beings in the process of their decision making?

The first Safety Games!

We’re asked to do some unusual things from time to time and this article that was published in Safety Management (published with permission) demonstrates one of our unique consultancy projects.

Superyacht manufacturer holds shipshape Safety Olympics

On a sunny day in August, Pendennis Worldclass Superyachts one of Cornwall’s largest employers and a member of the British Safety Council, held a day of interactive safety games followed by the British Safety Council’s level 1 examination. Based in Falmouth Docks, Pendennis is one of the world’s leading builders of superyachts and provider of refit facilities.  The company employs around 350 staff who work in a variety of environments.  Those working on the yachts face a number of hazards, ranging from dangerous chemicals to working at height and manual handling. The 200 staff that took part in the day were divided into teams of five and send around a circuit, participating in games and activities to teach them about key health and safety issues that they face, but in a fun and engaging way. Each workstation was supervised by a manager and covered one of the main syllabus points of the level 1 course.  Against a backdrop of sailing vessels on the calm harbour water, staff tested the accuracy of their aim with fire extinguishers; others played snakes and ladders to highlight the legal aspect of health and safety, whilst some play darts to learn about the dangers of hazardous chemicals. After a busy morning the workers – who ranged from apprentice joiners to admin staff – sat their level 1 exam. The consultancy Risk and Safety Plus helped produce the original games plan and timetabling.  This was then taken by the supervisors who developed the content of the games.  “The expected outcome here was a culture change,” says Malcolm Tullett, director of Risk and Safety Plus.  “Pendennis Worldclass Superyachts has taken on board the fact that all its staff need to be involved.  We talked to all of the managers, nearly 60 of them, and they were the ones who put this together today.  They’ve done a really good job.”

Nigel Strawbridge, health and safety adviser at Pendennis says “Our people make Pendennis what it is – an award winning superyacht company.  Our commitment to their safety in the workplace is paramount to ensuring their wellbeing as well as a happy and well-trained organisation.  Health and safety is vital to this and working with organisations like the British Safety Council and Risk and Safety Plus on innovative projects like this demonstrates our consistent approach.”

If you’d like to know more about this kind of event please contact us on 0845 430 9461 for more information.

No win, lots of fees!

The compensation culture is about to be shot down.  Deregulation of marketing for the legal profession has resulted in shark-infested waters with everyone out to make as much money as possible from compensation claims, but things are about to change.

The Lord Young review started the ball rolling with the law changing so that the current feeding frenzy when someone cuts a finger in the workplace will no longer be the first option.

Currently the ‘no win, no fee’ offer offers injured people a means of getting compensation for theor injuries, but ‘no fee’ is not strictly accurate.  There are fees (even lawyers have to eat), but they are piled onto the ‘costs’ in court.  If your lawyer wins, the other side pay all the costs.  When you enter into one of these agreements, you’ll be asked to buy (yes, there are fees, just not for the case itself) an insurance policy to cover the costs should your lawyer lose the case.

The thin end of the wedge where the law will change affects road traffic accidents, but the same principle will apply to workplace accidents and personal injury claims.

Solicitors won’t be able to offer legal aid for their clients as the legal aid budgets are being cut too.  This means that whilst the number of claims will go down, legal fees overall are likely to rise – putting the option to make a claim beyond many people.

Our legal associates at Warner Goodman commented: “The government stopped legal aid and allowed No Win No Fee instead, but then the insurers were hit with success fees from the legal profession (given the risks we take) and the insurers passed on the costs to the punters.  Meanwhile the claimant’s insurers wanted a slice of the action so required referral fees, (then so do garages and dodgy geezers in shades!)  So the Government will now stop referral fees which lawyers never wanted in the first place!”

Fortunately, Risk and Safety Plus and Warner Goodman have put together a peace of mind package.  This takes care of the costs if your company is the subject of a prosecution – providing, of course, you’ve followed our advice!

Are you ready to be caught in the trap?

If the people who act as the enforcement authority then change hats and offer commercial consultancy – ostensibly to put right the issues they’ve identified, how comfortable would you feel?

I recently attendeda Westminster Briefing on Health and Safety after the Young Review – and was astounded to discover that’s exactly what is on the agenda. With all the big guns present, including the Rt Hon Lord Young of Graffham; Judith Hackett (Chair of the HSE) and representatives from the Royal Society for the Prevention of Accidents (RoSPA), the British Safety Council (BSC), the Better Regulation Office (BRO), The Association of British Insurers (ABI) and the Chartered Institute of Environmental Health (CIEH) you’d expect wisdom and ethical practice. I’m not convinced that’s what we’ll get.
It seems that, because the Government are cutting local government budgets the City Council (and other local authorities) is exploring new ways to generate revenue. They’ve decided to go into competition with commercial health and safety practitioners by offering consultancy and services to compete with the private sector.
It may not sound too radical – competition is healthy. However, when you take into account that local authorities are responsible for around 90% of the ‘policing’ of health and safety standards in business, it means that they’re going to be judge, jury, plaintiff and defendant all at once!

If a business is not meeting the health and safety compliance requirements the enforcement authorities (local government or HSE) can issue an improvement notice, a prohibition notice or prosecute – but then they propose to also step across the line and offer the consultancy and services to ensure businesses don’t transgress the legal requirements.
So what happens when a local authority ‘advisor’ gives poor advice? Who will take them to task? The obvious answer seems to be that the Health and Safety Executive should be there for that reason. However, it appears that they’re jumping on the same bandwagon.

If a company gets it wrong as a result of the advice given by a government advisor operating as a consultant and someone dies or is critically injured as a result – who will prosecute? HSE and local government are not going to prosecute themselves. The danger is that the number of prosecutions will drop and the number of enforcement notices will increase.

Despite the suggestion that the legal advice that both Westminster City Council and the HSE have been given that this is acceptable – I have yet to find anyone outside the government who sees it as anything but a very dodgy practice.

So where does this leave us? With government bodies finding ways to bend the rules to suit themselves; it’s a bit like the expenses claims debacle – it might be within the rules, but that doesn’t make it right, ethical or moral.