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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