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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Stealth and safety; Highway robbery

Last December the HSE announced that they were launching a consultancy ‘service’. This allows them to offer Health and Safety advice to organisations in much the same way as the Health and Safety practitioners that they police.

This makes them not only the enforcers, but also the support for those on the receiving end of enforcement notices. We thought that this was a conflict of interest and said so – and got positive support from the British Safety Council.

The latest chapter in this story has taken it to a whole new – and not very ethical – level.

The proposal that has just gone out for public consultation (very quietly) is that the law will be changed and new regulations established. What they are proposing is dressed up as ‘cost recovery’, but it isn’t.

An example of cost recovery is when, in order to provide a license for an organisation to operate in a particular area, such as nuclear sites or major hazard sites (e.g. petro-chem sites), research and information gathering are required. A charge is made to the licensee to cover this work. The HSE already have the ability to do this and that is perfectly above board and reasonable.

What the HSE is now proposing is that, if they visit a premises and feel that advice to the owner is necessary (not necessarily an enforcement order, it can simply be a letter of advice), a minimum charge of £750 will be made. This is NOT cost recovery. It’s extortion.

Far from being cost recovery, it’s revenue generation, pure and simple, and covers services that the tax payer already pays for.

This is akin to being stopped by the police for speeding, receiving a fixed penalty fine – and an invoice for the police officer’s time in carrying out the enforcement. If that happened a lot more people would be howling about ethics, morality and justice.

The TUC have recently been very vocal in attacking the HSEs proposed cost cutting exercise. The HSE claim to be aiming for 35% when every other government body is targeting 20% at the most. It’s no wonder that HSE can be that ambitious when they’ll be raking in revenue from the already hard hit small business owner.

On the other hand, they’re reducing enforcement in lower risk industries and with smaller employers. That doesn’t make any sense either, that’s where most accidents happen!

Part of the consultation document asks some ridiculous questions. For instance, asking local authorities if they would like to be able to act in a similar way. With the current cost cutting environment, they’d be crazy not to jump on the bandwagon; with the government’s backing. However, that doesn’t make it right. It will, however, ensure that there is plenty of support for this totally immoral proposal.

Whilst we know there are situations where enforcement is necessary to stop cowboys getting away with unsafe practices, but this will hit businesses that are doing their best in a difficult economic climate.

This whole strategy is extremely dodgy – and will put the credibility and integrity of the HSE in a very shaky position. It must be stopped or it will give the government a licence to rob businesses of their livelihood.