Recently, supermarket chain Iceland was handed a fine of £2.5 million for health and safety failures.

The fine is the largest made against a retailer to date for pure health and safety offences. Enforcement action was taken by Rotherham Council following a fatal fall from height suffered by a contractor working to replace air conditioning units in one of its Rotherham stores.

The level of sentences for health and safety offences by retailers has significantly increased in the last 18 months. This is because of the revised version of the sentencing guidelines which have been in force since 1 February 2016. This most recent fine against Iceland further confirms that high fines are now the norm for large retailers.

In 2017 alone, there have already been several instances of fines being levied at £1 million and over.

  • Wilko was fined £2.2 million after a worker was paralysed in store;
  • DFS and Aldi were both fined £1 million for injuries sustained by workers on site; and
  • Tesco was fined £8 million in total for leaks occurring from one of its petrol stations. Although this prosecution was brought by the Environment Agency, it involved cross collaboration with the HSE as members of the public were hospitalised by fumes. £5 million of the fine was awarded as a result of health and safety failings.

What explains the differences in the amount of fines?

Although all of the retailers fined this year were found to be in breach of health and safety legislation, it is clear to see that there are substantial differences in the amount of fines that they received. This is a result of the approach set out in the guidelines themselves.

When sentencing, a judge is required to take into consideration the culpability of the organisation, the risk of harm to an individual and the turnover of the company. The general rule of thumb is that the greater the level of harm, culpability or turnover, the higher a fine will be. The fine levied against Iceland is a prime example of this.

Through the course of the investigation it became clear that the safety conditions in store were inadequate and that no risk assessments had been carried out by Iceland. The failure to do this will have increased the culpability of the company, while the level of harm, with a fatality, was the most serious it could have been. When these two points were combined with the Iceland's annual turnover of £2.7million, the level of fine heads towards the higher end of the sentencing range.

This can be contrasted with the £1million fine that Aldi received in July 2017. In this incident, a worker who had recently joined Aldi's workforce suffered a severe injury to their foot whilst operating an electric pallet truck. Although the worker received multiple fractures and was unable to work for half a year, fortunately there were no fatal injuries. In addition to this, the worker was operating under supervision, which brought the level of culpability down. Although Aldi's turnover is much higher at £7.7 billion, the nature and culpability of Aldi for the failings meant that the overall fine was lower.

How can retailers minimise their risk?

It is clear to see that large fines for health and safety offences are now the norm, and it is extremely unlikely that there will now be any decrease in the level of fines imposed.

With this in mind, retailers are now exposed to greater risks from health and safety failings than ever before. The best way to minimise this risks is to invest time and energy into improving health and safety procedures. By having robust processes in place, the likelihood of an incident occurring will decrease.

In addition to this, even in the unfortunate event of an accident occurring and a prosecution arising, by having the correct procedures and training in place, there is less risk of the company being found highly culpable for the incident. Having the correct safety equipment and training may well decrease the severity of harm, which will further lower any potential liability.

The sentencing guidelines also take into consideration mitigating factors. Full cooperation with the HSE is always advisable as a way for a retailer to further reduce its exposure to high fines.