05/07/2017
Much has been written about the fines handed down to private companies by the courts for breaches of health and safety legislation. But how have the Sentencing Guidelines for Health and Safety, Corporate Manslaughter and Food Safety and Hygiene Offences (the Guidelines) affected public bodies? It could be argued that steep fines have a deeper impact on the public sector, as their annual budgets are fixed. If large fines are handed down, it is often the general population that pays for it, either in the form of increased taxes or cuts to services.
Recent examples of health and safety fines handed down to public bodies
One of the first sentences to be handed down to a public body under the Guidelines was a £500,000 penalty to Havering Council in July 2016. A maintenance worker who was cutting trees sliced his leg to the bone with a cutting machine. The machine was found to have the wrong attachment, and the employee was not given adequate training.
The council appealed the fine in the Court of Appeal, which led to a decision in June 2017. The court upheld the steep fine, sending a clear message to the public sector that little sympathy would be given if health and safety breaches occurred. Key points of the judgment included:
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Fines are based on the risk of harm. The fact that the harm that occurred was much lower than that risked will not necessarily be a mitigating factor.
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The annual revenue of Havering Council was £120 million which "put the [body] in the "large" category, but much higher than the base point of £50m. The Guideline envisages the need to adjust the sentence range to reflect much larger organisations."
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Although a public body is entitled to a “substantial” reduction in sentencing under the Guidelines, the amount the fine is reduced by is entirely at the court’s discretion.
In April 2017, Nottinghamshire County Council admitted breaching health and safety laws and was subsequently fined £1 million and ordered to pay costs of £10,269.85.
It followed an incident involving a 71-year-old man who was struck by a vehicle collecting branches in Rufford Abbey. The disabled man suffered injuries to his head, arms, and legs.
Following the incident, the council made several changes including improving driver training and updating its risk assessment for vehicle use.
What do these two decisions tell us about how the courts will treat the public sector following health and safety breaches?
The two recent decisions involving Havering Council and Nottinghamshire County Council show that:
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the courts are now prepared to impose levels of fines on public bodies previously only given to the private sector.
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that the Court of Appeal will not interfere when a public body with a high annual revenue (over £100 million) is given a substantial fine which may exceed the range envisioned by the Guidelines
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appeal cases will be decided on their own merits and are not to be determined by reference to fines previously imposed, either pre-or post-Guidelines
What public bodies should take from these recent decisions
In both the Havering Council and Nottinghamshire County Council decisions, the courts have made it clear they are prepared to severely punish public bodies who breach health and safety regulations. Although the level of fines handed down may never match those given to the private sector, the impact on a public body can be more severe and far-reaching. Public bodies risk having to cut the services they deliver to pay the fine, leading to further hostility from a community that may already be angered that a breach of health and safety occurred in the first place.
Should an incident occur, it is imperative to engage an emergency response team immediately. An independent investigation conducted as soon as possible can uncover possible defences. In some cases, local bodies have accepted responsibility prematurely. Now, given the possibility of severe fines being imposed, it is crucial to have all health and safety incidents examined carefully. Even if fault does lie with the local body, evidence can be found and presented to mitigate the fine and the subsequent impact on the delivery of services.
Fisher Scoggins Waters is a London based law firm who are experts in construction, manufacturing and engineering law. If you would like more information or advice about the Sentencing Guidelines for Health and Safety, Corporate Manslaughter and Food Safety and Hygiene Offences, please phone us on 0207 993 6960.