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Health and Safety – February 2019

Two Health & Safety Inspectors in hard hats overlooking some papers Print publication

01/03/2019

‘No deal’ Brexit guidance; new UK product safety mark; sentencing and ‘linked organisations’; and more.Walker Morris risk series stamp

‘No deal’ Brexit guidance and new UK product safety mark

  • On 2 February 2019, the government published the design for the new UK product safety marking (‘UKCA’) that will apply to certain products sold in the UK if the UK leaves the EU without a deal. See the press release which links through to guidance on how to use the new marking, and the current European CE marking, in the event of a no deal scenario.
  • On 5 February 2019, the government issued updated guidance on food and drink labelling in the event of a no deal Brexit. See the press release.
  • On 15 February 2019, the government published further guidance bringing together sector-specific information across the different areas of goods regulation with the aim of helping businesses to understand the impacts of Brexit for their products and supply chains.

The sentencing guideline and ‘linked organisations’ – fine reduced on appeal

A company has successfully appealed a health and safety fine of £370,000 for failures relating to the identity and safe removal of asbestos at a school. The decision is of particular interest because it considers the correct application of the sentencing guideline where there is a ‘linked organisation’ such as a parent company [1].

In this case, NPS London was a joint venture company, 80% owned by its parent company (the NPS Parent) and 20% owned by the London Borough of Waltham Forest. The NPS Parent was ultimately controlled by Norfolk County Council (the Council).

At step one of the sentencing guideline, the sentencing judge assessed the culpability of NPS London as high and the risk of harm created as falling within harm category 2. This was not challenged on appeal. At step two, when the court is required to focus on the organisation’s annual turnover or equivalent to reach the starting point for a fine, the judge did not treat the table for ‘small’ organisations as the relevant one (NPS London had a turnover of £5-6 million which would have placed it in that table), but instead considered that the relevant table was the one applicable to ‘large’ organisations. He reached that conclusion on the basis of the passage in the guideline which states that, exceptionally, it may be demonstrated to the court that the resources of a linked organisation are available and can properly be taken into account. The annual turnover of the NPS Parent was around £125 million. For a ‘small’ organisation, the starting point for a fine for an offence in the relevant category is £100,000. It is £1.1 million for a ‘large’ organisation.

The Court of Appeal disagreed. It found that the judge had been wrong to read the guideline as entitling him to treat NPS London as, or as if it were, a large organisation for the purpose of sentencing. It is the offending organisation’s turnover, not that of any linked organisation, which, at step two of the guideline, is to be used to identify the relevant table. This reflects the basic principle of company law that a corporation is to be treated as a separate legal person with separate assets from its shareholders. The mere fact that the offender is a wholly owned subsidiary of a larger corporation, or that a parent company or other ‘linked’ organisation is in practice likely to make funds available to enable the offender to pay a fine, is not a reason to depart from established principles of company law or to treat the turnover of the linked organisation as if it were the offending organisation’s turnover at step two of the guideline.

The Court of Appeal went on to say that, by contrast, whether the resources of a linked organisation are available to the offender is a factor which may more readily be taken into account at step three of the guideline when examining the financial circumstances of the offender in the round and assessing “the economic realities of the organisation”. This reading and application was consistent with the Court of Appeal’s decision in R v Tata Steel UK Ltd [2].

The most recent accounts for NPS London showed that it was loss-making and insolvent on a balance sheet basis. However, under the heading “going concern”, the directors’ report stated that any finance required was provided by the NPS Parent and that another company (which was the ultimate parent, controlled by the Council), had confirmed that it would continue to provide any financial support required for a period of at least 12 months. On that basis, the directors believed that it remained appropriate to prepare the financial statements on a going concern basis.

The fact that NPS London was an enterprise with low profitability and no resources of its own from which to pay a fine was not a reason to reduce the amount of the fine, because it was proper to regard the NPS Parent as a linked organisation which could be counted on to provide the required funds. Taking account of relevant mitigating factors and giving full credit for NPS London’s guilty plea reduced the fine to £50,000.

In a separate decision [3], the sub-contractor engaged to carry out demolition work at the school also had its fine reduced by the Court of Appeal, from £400,000 to £190,000. The Court found that there was no justification for assessing the likelihood of harm in the case as medium. The best estimate of the sub-contractor’s expert, whose evidence went unchallenged at trial, was that exposure to the asbestos would result in about 90 deaths out of 100,000 people. The sentencing judge had been wrong not to give any reason for disregarding or disagreeing with the expert evidence of risk and the only reasonable conclusion on the available evidence was that the likelihood of harm arising from the offence was low. The Court said that “the likelihood or otherwise that exposure to asbestos at a particular level for a particular period of time will ultimately cause a fatal disease is not something which is rationally capable of being assessed simply on the basis of supposition, impression or imagination. It is a scientific question which should be answered, if possible, with the assistance of scientific evidence”.

Other sentencing news

  • Two construction firms were fined a total of £860,000 (and one of them was ordered to pay costs of over £40,000) after a worker died when the temporary platform he was walking on collapsed and he fell from a height of approximately 14 metres. There was a failure to manage the risks associated with temporary works and work at height and the death was “entirely preventable”.
  • A furniture manufacturing company, had it not been in administration, would have been fined £800,000 for failing to prevent exposure to asbestos at its factory. See the HSE press release. The clear breach of the law by the company required the HSE to prosecute, even though the company was in administration. The fine was reduced to £1.
  • Two companies were fined a total of £700,000 after a worker was fatally crushed at a paper mill when he was struck by a shovel loader. The HSE investigation found that there was no safe system of work to segregate pedestrians and vehicles and drivers had limited visibility. The HSE inspector said: “This death would have been prevented had an effective system for managing workplace transport been in place. This is a reminder to all employers to properly assess and apply effective control measures to minimise the risks from moving vehicles in their workplaces”.
  • The principal contractor on a major construction project was fined £600,000 after a worker died when he was struck by a wheeled excavator slewing round after being refuelled. The company had failed to ensure that the safe system of work for refuelling of all plant and equipment was fully implemented at the site. The HSE inspector said: “This was a tragic and wholly avoidable incident, caused by the failure of the civil engineering company to implement safe systems of work, and to ensure that health and safety documentation was communicated and control measures followed”.
  • Another principal contractor was fined £600,000 after an agency labourer was run over and killed by a dumper truck being driven by an employee. The HSE investigation found that the company had failed to organise the site in such a way to ensure that pedestrians were not carrying out work on or near traffic routes whilst vehicles were in operation.
  • A steel cladding company was fined £600,000 (and ordered to pay costs of over £23,000) after a worker suffered life-changing crush injuries to his hand while using an electrically-powered folding machine. The HSE investigation found that the company had failed to ensure workers only used the machine when the guards were in place, to prevent them from reaching dangerous parts whilst it was in operation.

For a recent quote by one of the team in the Food Manufacture publication in relation to health and safety click here.

HSE issues welding fume safety alert

The HSE issued a safety alert following new scientific evidence from the International Agency for Research on Cancer that exposure to mild steel welding fume can cause lung cancer and possibly kidney cancer in humans. It says that, with immediate effect, there is a strengthening of HSE’s enforcement expectation for all welding fume, including mild steel welding, because general ventilation does not achieve the necessary control. The alert sets out the action required.

Legal ‘duty of care’ for social media companies to protect young people’s health

In its recently published report entitled ‘Impact of social media and screen-use on young people’s health’, the House of Commons Science and Technology Committee concludes that social media companies must be subject to a formal legal duty of care to help protect young people’s health and wellbeing when accessing their sites. See the press release with a link through to the report, conclusions and recommendations.

News from Europe

  • European Parliament and Council negotiators have reached provisional agreement on new rules which will entitle consumers buying online or over the counter in a local store to equal remedies if they purchase faulty products. Goods with digital elements, such as smart fridges and connected watches, will also be covered by the new rules. See the press release for more details.
  • On 15 February 2019, the Council of the EU announced that the EU is introducing new rules which will ensure that products placed on the single market are safe and compliant with EU legislation protecting public interests, such as health and safety in general, health and safety at the workplace, consumers, the environment and public security. See the press release.

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[1] R v NPS London Ltd, [2019] EWCA Crim 228
[2] [2017] EWCA Crim 704 – see the May/June 2017 edition of the Regulatory round-up.
[3] R v Squibb Group Ltd, [2019] EWCA Crim 227

 

 

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