Cardinus Health and Safety Director Peter Kinselley reviews recent case law and how judges are interpreting the sentencing guidelines.

On 22nd March 2017 SHP online reported that Whirlpool UK Appliances Limited has been fined after a self-employed contractor fell from a mobile elevated work platform (MEWP) and later died from his injuries.

A Health and Safety Executive (HSE) investigation found there was no effective control or supervision in place to prevent the conflicting work tasks from being undertaken at the same time.

Whirlpool UK Appliances Limited has pleaded guilty at Bristol Crown Court to breaching section 3 of the Health and Safety at Work Act 1974, been fined £700,000 and ordered to pay costs of £11,466.

• The fine imposed was set using the sentencing Guidelines introduced on 1st February 2016

Whirlpool appealed the sentencing and the case was reheard in the Appeal Court on 20th December 2017.

The Appeal Court reviewed the case and reduced the fine to £300,000. This was based on the following factors;

• The profitability of the business
• Whirlpool had an impeccable safety record
• They had done everything possible to make good the deficiencies exposed by the event
• They had made an early guilty plea

The judge passed comment that in the case of the large fines (£5m) being handed out were as a direct result of senior management being inadequately focused on day to day health and safety.

While this is a tragic case, it does show that, while failings will be punished, the courts will consider factors such as senior management involvement in the health and safety management of the business and the safety record of the business when passing judgement.

The Message to Safety Leaders is Clear

Having reviewed the findings from other cases such as R V Tata Steel UK Ltd and R V Merlin Attractions there are a couple of points organisations and safety leaders should consider.

The judgement in each case has included the term ‘criminality’ of the defendants in failing in their duties.

We should consider what impact this ‘criminality’ has on the organisation’s brand and reputation.

The cases also document the injuries to individuals. The cases do not include the impact to the defendants who find themselves faced with police interviews, investigations and attending court. Large complex cases take time to investigate and a guilty plea places the organisation and individuals at the mercy of the court. Whilst fines are handed out, custodial sentences can and are awarded and this has a devastating effect on the individual.

There is a clear message. Organisations need to consider their duty to their staff and others and ensure they execute their responsibilities with due regard to the law. Senior managers also need to think about the impact of decision making when considering risk and costs to control.

Within the current framework culpability and potential harm just needs to be established for a prosecution to take place. This is not new – the HSE have been enforcing this through Prohibition notices and Improvement Notices.

With this in mind managing health and safety in any workplace environment needs an investment of time and resources. Organisations need to consider this particularly when going through any change such as in the case of Whirlpool.

The Benefits of ISO 45001 Health and Safety Management System

A health and safety management system such as ISO 45001 is a good starting point for any organisation to look to build a suitable health and safety programme.

This framework will ensure:

• Senior Management are involved and own the Health and Safety agenda for the business; And,
• Hazards are identified
• Risk assessments are in place
• Training is structured to risk
• Contractors are managed
• Consultation with staff takes place
• A communication program is in place
• Regular inspection and audits for the health of the programme
• That health and safety policy and arrangements remain suitable

The key to the above is to have leaders recognise that good health and safety management make good business and it needs to be owned at board level in the same way as finance or a supply chain.

At Cardinus we are able to formulate programmes which focus on leadership, planning and communication. Our skill lies in being able to reduce complexity, helping you manage your risks in a better way and engaging your people and stakeholders effectively. Email [email protected] or call 020 7469 0200 for more information.