Health and Safety – Case Study- Positive outcome for Olliers’ client

Head of Olliers’ Regulatory Department, Gareth Martin, was recently instructed to provide advice and assistance to a national meat processing company facing  a prosecution brought by the Health and Safety Executive (“the HSE”) in respect of an alleged breach of section 2 (1) of the Health and Safety at Work Act 1974 (“HSWA”). 

Section 2 HSWA states that it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees. The duty of an employer includes, amongst other things: 

1. The provision of plant and systems of work that are safe; 
2. The provision of such information, instruction, training and supervision as is necessary to ensure the health and safety of employees. 

If convicted of an offence an organisation is liable to an unlimited financial penalty. The Sentencing Council has, however, produced Definitive Guidelines on the Sentencing of Health and Safety Offences (“the Guideline”) which the courts must follow. 

Amputation of finger 

In this case, the investigation followed an incident in which an employee amputated part of his index finger whilst using hydraulic cutters. The HSE identified a number of failings including a lack of risk assessments; inadequate training; a lack of refresher training; an absence of procedural systems of work; poor communication between management and employees, some of whom were migrant workers whose first language was not English and unsuitable work equipment.  

The company acknowledged the failings and immediately set about implementing a raft of changes to improve practices at the site. Along with Austin Welch of Lincoln House Chambers, Gareth collated an extensive mitigation bundle and submissions for a plea and sentencing hearing before the District Judge hearing the case. 

High Culpability 

The facts of the case were such that on the face of it, it was one involving high culpability on the part of the company.  

High culpability is described in the Guideline as involving the following conduct: 

1. Offender fell far short of the appropriate standard; for example, by: 
2. failing to put in place measures that are recognised standards in the industry; 
3. ignoring concerns raised by employees or others; 
4. failing to make appropriate changes following prior incident(s) exposing risks to health and safety; or 
5. allowing breaches to subsist over a long period of time.  
6. Serious and/or systemic failure within the organisation to address risks to health and safety. 

Medium Culpability 

The aim of the mitigation bundle and submissions was to seek to persuade the District Judge to treat the case as one of medium culpability. Medium culpability is defined in the Guideline as being as follows: 

1. Offender fell short of the appropriate standard in a manner that falls between descriptions in ‘high’ and ‘low’ culpability categories, or  
2. Systems were in place but these were not sufficiently adhered to or implemented. 

Similarly, we sought to persuade the court that the harm risked by the company’s breach was Level B which is described in the Guideline as being physical or mental impairment, not amounting to Level A, which has a substantial and long-term effect on the sufferer’s ability to carry out normal day-to-day activities or on their ability to return to work or a progressive, permanent or irreversible condition. 

Furthermore, we submitted that the likelihood of the harm was not high rather medium despite what the facts may have suggested on first glance. 

Having heard from prosecution counsel and Mr Welch on behalf of the company, the District Judge acknowledged the pragmatic approach taken by the defence and credited the company for its conduct.  

The Judge agreed with the submissions in terms of culpability and harm. The Judge was also persuaded not to apply any uplift which again, at the outset,  was a very distinct possibility.  

Financial Penalty 

In the circumstances the Judge took £300,000 as the starting point for the fine. This was reduced to £240,000 on the basis of the mitigation and further reduced to £210,000 because of the company finances. Having then applied credit for the prompt guilty plea, the fine was reduced again to £140,000. The company were also ordered to pay the standard victim surcharge of £190 and just over £5,500 in prosecution costs but given 6 months to pay the total sum. 

Positive Outcome 

This was a very positive outcome for the company which could quite easily have faced a fine in the high hundreds of thousands of pounds, if not more. The result was welcomed by the company who thanked Gareth and Austin for the “service and support throughout”. 

Why choose Olliers Solicitors? 

Olliers’ regulatory department are regularly instructed by organisations and individuals facing investigation and prosecution by the HSE. We work closely with our clients, offering bespoke and pragmatic advice to secure the best possible outcome in every case. If you or your company find yourself facing proceedings brought by the HSE, please do get in touch.

Contact us by telephone on 0161 8341515, email info@olliers.com or complete the form below and one of our lawyers will contact you.