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Health and Safety – September 2018

Health & Safety Inspector Print publication

04/10/2018

Part of the Walker Morris Risk Series Logo

£900,000 fine reduced on appeal; other sentencing news; government ban on combustible cladding; and more.

£900,000 fine reduced to £135,000 on appeal

A utilities company has had its £900,000 fine reduced to £135,000 on appeal [1]. Electricity North West Ltd was convicted of contravening regulation 4(1) of the Work at Height Regulations 2005, but acquitted on two other counts of breaching regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 and section 2(1) of the Health and Safety at Work Act 1974. The conviction followed an incident in which an employee died after falling from height while clearing ivy from a vertical wooden pole. The company argued that the size of the fine bore no relation to the seriousness of the offence, in terms of culpability and harm, and in light of the acquittals on the other two counts, and that it was manifestly excessive.

The sentencing judge found that there was “high” culpability, since there was a persistent failure properly to plan over a lengthy period of time. The need to plan for work at height was obvious and a systemic failure put the case in that category of culpability. In relation to harm, in light of the acquittals on the other two counts, he concluded that the likelihood of harm was low and the offending fell within harm category 3. These factors indicated a starting point for a fine of £540,000. The judge then went on to assess turnover. As the company was a “very large” organisation, it was necessary to make an upward adjustment to the starting point and move outside the range to achieve a proportionate sentence. £900,000 was the minimum that could be imposed in the circumstances.

In relation to culpability, the Court of Appeal disagreed with the judge’s finding that the failure to plan that a Mobile Elevated Work Platform was readily available on the day of the incident made the offence one of high culpability. It said that the failure was not comparable to the other factors indicating conduct or omission which falls ‘far short of the appropriate standards’ so as to justify a finding of high culpability, for example, failing to put in place measures which are standard in the industry or ignoring concerns raised by employees or others. In light of the jury’s verdicts, the company had been convicted of an offence which was properly characterised as falling between low and medium culpability. The sentencing range for large organisations for low culpability/harm category 3 is between £10,000 and £140,000, and for medium culpability/harm category 3 between £130,000 and £750,000. The Court of Appeal concluded that the correct sentence was a fine of £135,000. Notably, it did not consider that any further upward adjustment to reflect turnover should be made on the facts of the case.

Other sentencing news

  • A logistics company was fined £1.5 million, and ordered to pay costs of over £32,000, after a worker was fatally trapped while attempting to attach a trailer, which was parked on a slight slope, to his vehicle. The inspector from the Health and Safety Executive (HSE) said: “Had Tuffnells taken the slope into account, simple measures could have been taken that would have prevented this incident. Workplace transport remains a high risk environment, and this case serves as a reminder to industry that assessments of sites should be specific and identify the hazards unique to each yard. It is also a reminder that the slope a vehicle is parked on does not need to be steep for incidents to occur”.
  • International tyre manufacturer Pirelli was fined £512,000 after two workers were seriously injured by the same machine in two separate incidents. The HSE investigation found that the machine was not properly guarded, despite the first incident.
  • Tata Steel UK Ltd was fined £450,000 after a worker fell three to four metres into an open pit while carrying out a skip emptying operation. An earlier risk assessment had identified the need for a barrier around the pit during this type of operation. A barrier was not provided until after the incident.

HSE launches construction health inspection initiative for October 2018

The HSE announced that it will be visiting construction sites across the country during October 2018, focusing on the measures employers have in place to protect their workers from occupational lung disease caused by asbestos, silica, wood and other dusts. It says that it will be looking specifically for evidence of construction workers knowing the risk, planning their work and using the right controls.

Government announces ban on combustible cladding

As this edition of the Regulatory round-up was due to go to press, the government announced that it will ban the use of combustible materials on the external walls of all new high-rise buildings that contain flats, as well as hospitals, residential care premises and student accommodation above 18 metres in height. There will be changes to building regulations and products will be limited to those achieving a European classification of Class A1 (these are products described as having no contribution to fire at any stage) or A2 (products described as having no significant contribution to fire at any stage). The government consulted on a proposed ban during the summer, after the Hackitt final report on building regulations and fire safety stopped short of recommending an outright ban.

Some have said that the ban does not go far enough. The Fire Brigades Union says that the ban should apply to all buildings, whatever their height or use, and should permit only the highest standard of A1 materials. It is also concerned that the measures do not deal with existing cladding on buildings. The Royal Institute of British Architects (RIBA) is also concerned at permitting all A2 classified products (see the press release).

On 10 September 2018, the Ministry of Housing, Communities & Local Government issued a circular letter to draw attention to issues about assessments of external wall cladding systems and to issue guidance pending the outcome of various recent government consultations (including the proposed ban on combustible cladding) in the wake of the Hackitt Review.

In related news:

  • RIBA is consulting until 15 October 2018 on a new ‘Plan of Work for Fire Safety’.
  • The government responded to a Select Committee report setting out the Committee’s main conclusions and recommendations following a short inquiry post-publication of the Hackitt final report.
  • The Construction Industry Council published the first quarterly report of the steering group responsible for implementing the competence recommendations of the Hackitt Review.

Consultation on banning the sale of energy drinks to children

The government is consulting until 21 November 2018 on a proposal to end the sale of energy drinks to children. The ban would apply to all retailers in England, including both on-site and online sales. A summary of the proposals and the questions for consultation can be found on page 9 onwards.

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[1] R v Electricity North West Ltd, [2018] EWCA (Crim) 1944

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