1 February 2016 heralded the implementation of the “Health and safety offences, corporate manslaughter and food safety and hygiene offences: Definitive Guideline” in England and Wales. One year on, we consider its application to recent cases. But first, a reminder of the key principles of the Guideline and what organisations in the chemicals sector can do now.
Factors influencing the level of fine
The Guidelines work on the principle that safety offences can be rated by reference to two indicators: ‘harm’ and ‘culpability’. Once these have been ascertained, the turnover of the offender must be considered. These three factors together indicate a starting point and range to the sentencing Judge
The ‘culpability’ of the offence will depend on the extent to which the offender failed to meet the standards required of them, ranging from deliberate breaches of the law, down to minor or non-systemic failings. There are four levels of culpability, from very high to low.
Use the four bullet points within the high culpability range to test your own safety system before you have an incident:
- do you abide by industry standards?
- can employees raise concerns?
- is there an effective investigation and learning process following incidents?
- how are remedial actions and concerns monitored and followed up?
The ‘harm’ associated with the offence will initially be based on the ‘risk’ of harm created, rather than the ‘actual’ harm. Crucially the opportunity to prosecute is established if there was a risk of harm, even if nobody was directly injured. If there was an injury the offence may nonetheless be viewed more seriously and may push the offence higher up the harm spectrum.
- Organisations may want to use the harm categories when producing their own risk assessments. The standard ratings of one to five may be replaced with those provided in the guideline.
- Organisations should also consider their investigation process and whether it is sophisticated enough to consider issues such as causation and the potential exposure to harm. Both are relevant to the harm calculation.
There are four categories of turnover ranging from Large (£50 million or over) to Micro (under £2 million). For organisations with a turnover greatly exceeding £50 million, the Guideline states it may be necessary to move outside the range specified for large organisations.
Group companies should consider whether there is any evidence of true linkage between companies. For example, do group accounts make provision for the parent to meet all relevant liabilities? If so, there may be an argument that the larger turnover should be taken into account in assessing the fine.
Cristal Pigment UK Ltd, a company with a turnover of £197 million, was ordered to pay £3 million after one worker was killed and one worker was left with life changing injuries when they were overcome by a toxic vapour cloud. Had the wind been blowing in the opposite direction it could also have caused a local disaster. Sixteen months later there was another incident involving the same toxic chemical (Titanium Tetrachloride) where there was another uncontrolled release of a toxic vapour during the cleaning of a redundant vessel.
W E Roberts (Corrugated) Limited, a company with a significantly lower turnover of just over £13 million was fined £297,000 on 30 January 2017 for breaches of Regulation 11 of the Provision and Use of Work Equipment Regulations 1998 (PUWER); Regulation 4(2) of the Electricity at Work Regulations 1989, and Regulation 5(1) of the Management of Health and Safety at Work Regulations 1999. In sentencing this case, the Judge had regard to the fact that an external consultant had highlighted concerns to the business approximately eight months before the accident but at the time of the HSE visits (which followed a complaint received from an ex-employee) these had not been acted upon.
Following an incident in which an employee unintentionally opened a valve on a pressurised isotanker and released an highly toxic chemical, Syngenta Limited, a company with a turnover of £422 million, was fined £200,000. The HSE stated that this could have been avoided had Syngenta properly assessed the risk of the valve being opened.
Each of the above cases demonstrate an application of the Guideline in very different circumstances, and with very different results. Those in the chemical sector will need to have a good understanding of the application of the Guideline to ensure they are in the best possible position to prevent an incident.