Multi-billion organisations who may have been bracing themselves for fines in excess of £10m following the stricter sentencing guidelines can breathe somewhat a sigh of relief – reports have come in that courts are meting out very low level fines for big name brands.
Speaking at the Health and Safety Lawyers Association annual conference in London on Friday, Simon Antrobus, QC at the Crown Office Chambers spoke of recent cases like Whirlpool, which had its fine slashed to £300k last November and Tata Steel, which also won a reduction for two offences in June 2017. “[These cases] have put a break on the stratospheric fines for very large organisations. It is true that some very large organisations are being hammered but even then we are seeing a lot of very low level fines,” he said.
Antrobus then explored some recent cases. McDonalds, which reported earnings of US$5.2billlion last year was for example fined just £200k on 23 March for an incident in which a 17 year old employee fractured his kneecap after he was hit by a car in the Drive-Thru customer car park at West Thurrock, Lakeside Retail Park.
Despite the failings at this site, such as sustained breaches over time, the fact there had been previous incidents and that it was falling far short of standards, the judge was minded to look at it as an incident isolated to that branch rather than company-wide.
“McDonalds had superb policies and procedures to govern all their restaurants – we were able to argue it was specific to the site,” said Antrobus.
The next case he came to was facilities management company, Interserve. The firm was fined £93k last week after generators it had failed to maintain led to power loss at the Animal Health and Veterinary Laboratories Agency (now the Animal and Plant Health Agency) in Weybridge, which conducts research on bacterial, viral and parasitic diseases.
The incident happened on Sunday 21 September 2014. The mains power was lost at the site and four standby generators then failed to operate, one of which also caught fire. Interserve was prosecuted for failing to maintain the generators that were key emergency control measures.
“The key argument [of the prosecution] was that the potential risk of exposure was enormous - 800 people worked on site, [it was the] potential of it literally going viral if those pathogens were released," explained Antrobus.
The judge settled on medium culpability, harm category four to reach the £93k fine.
The judge ‘looked at [it] in the round’, just like in the McDonalds case, said Mr Antrobus. She said she would adjust within the range (not go up a harm category to reflect the size of the firm). “She accepted that Interserve had done enough to demonstrate it wasn’t necessary to give an uplift at all to give a proportionate sentence,” he summarised.
He stressed: “Importantly it was not causative, the generator failures that prompted the investigation couldn’t be shown by the prosecution to be maintenance related.”
A judge at the event later commented to Safety Management that he’s seeing the small and medium companies hit hardest by fines, hinting that proportionality was a big factor in this. “Would I hand down a big fine for two fingers being cut off? I wouldn’t. When the guidelines came out it was [with the thought] that large firms would be punished. But it’s not – it’s the smaller ones that are getting hammered,” he said.
Health and safety offences, the definitive guidelines were published in February 2016. They give allowance for a maximum fine of £10m for large firms (turnover £50m plus).
The guidelines give directions for organisations whose turnover or equivalent ‘very greatly exceeds the threshold for large organisations’ stating: “It may be necessary to move outside the suggested range to achieve a proportionate sentence.”
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