Tribunal sets out guidance on public benefit test for use of rooftops as telecoms sites
Out-Law Analysis | 26 Mar 2018 | 4:52 pm | 7 min. read
The figures, which highlight the impact of health and safety sentencing guidelines that came into force in 2016, should prompt manufacturers to become more proactive in the way they address health and safety risks.
The sentencing guidelines have been widely publicised and their impact has already been felt across sectors as they have spurred significant increased penalties for companies responsible for breaking health and safety laws – fines of over £1 million for large businesses have become increasingly common in the relatively short period of time since the new approach has taken effect.
The HSE data shows that manufacturers are particularly exposed to the risk of high financial penalties for health and safety failings.
In 2016-17 the average fine issued per conviction in the manufacturing sector was £108,630. This compared with the overall average fine for health and safety offences of £87,655 per conviction.
The significant impact that the new sentencing guidelines have had on the level of fines being served for health and safety breaches more generally is demonstrated by the fact that, in 2014-15, prior to the new guidelines taking effect, the average fine per offence in the manufacturing sector was £17,701 and the overall average fine issued in health and safety cases was £19,623.
Cases dealt with under the new sentencing guidelines highlight the type of liabilities that can arise for specific health and safety risk failings.
Machine guarding is an issue businesses across the manufacturing sector have to consider, and there have been examples where failings in health and safety practices in the operation of machinery, caused accidents, and resulted in injury to workers and penalties for companies.
In November 2017, a small food manufacturer, Marcontonio Foods, was fined £300,000 after a worker suffered significant injuries, including the loss of four of his fingers, after gloves he was wearing became caught in a metal working lathe. The worker had been using an emery cloth to clean steal shafts on the machinery.
An HSE investigation found that Marcontonio Foods failed to ensure the work to clean the metal shafts was carried out safely, and that there had been similar failings over a number of years. The company pled guilty to the charge of breaching health and safety laws and was fined by Westminster Magistrates’ Court.
In another case, a Lancashire baker was fined £6,000 and prosecuted for a breach of health and safety laws when a staff member was seriously injured when operating unguarded machinery.
In a November 2016 incident, a baker working for Alan Liddell, trading as Liddell's Bakery, got his wedding ring caught in a dough machine. His arm was pulled into the machinery and the worker suffered broken bones in his arm and required to have his ring finger amputated.
The HSE investigation found that Alan Liddell failed to guard the machinery properly. It meant that employees were able to "reach dangerous parts of the machine when it was in operation", the HSE said.
Unfortunately, crushing injuries can have even more serious consequences and there have been several such cases in recent times which have resulted in fatalities.
In an incident in 2015 an employee of a company manufacturing steel building components, Thomas Panels & Profiles, was crushed to death by a steel beam during the manufacturing process. The death was found to be caused by a lack of machine safeguarding and inadequate risk assessments.
Worcester Crown Court considering the case described the incident as "wholly avoidable" and fined the micro company £285,000. This case highlights that courts are not scared of imposing comparably large fines on micro and small companies.
Vehicles at work
Another tragically fatal case in the manufacturing sector has also highlighted one of the other common themes for health and safety incidents – accidents relating to vehicles at work.
In the case, the 19 year old worker was not wearing a seatbelt and was not adequately trained in using the vehicle.
The joint HSE and police investigation found that Vinyl Compound in Derbyshire had not informed their employees of the speed limit in place, had not put in any measures to control the speed of vehicles, and did not have adequate lighting or edge protection in place to avoid fork lift trucks from overturning.
The company was fined £450,000, and ordered to pay relatively high legal costs of more than £70,000.
In a similar case also ruled on last year, Lincolnshire-based business Vacu-Lug Traction Tyres was fined £300,000 after the death of a fork lift truck driver who was also not wearing a seatbelt. The incident occurred after the fork lift truck overturned when it was driven over a loose tyre in the road.
An HSE investigation found that there was no company policy in place instructing workers to wear seatbelts when operating fork lift trucks. It also found that secure storage of the tyres would have "prevented them rolling onto the roadway and would have reduced the risk of the fork lift truck overturning", the HSE said.
Falls from height
Falls from height represent another risk that manufacturers may need to address if they require workers to work at height in or around their plants.
Domestic appliance manufacturer Whirlpool UK was initially fined £700,000 at Bristol Crown Court in April 2017 for breaches of the Health and Safety at Work Act (HSWA) that were found to have led to the death of a self-employed contractor in a fatal fall.
Whirlpool was successful in reducing the level of fine it was liable for to £300,000 in an appeal before the Court of Appeal in London in early 2018. However, the case highlighted failings relating to working at height that manufacturers must note.
The failings alleged included failing to adequately address the risks of weekend maintenance work happening simultaneously on heat detectors and a conveyor belt. The maintenance operators not being able to see one another caused the conveyor maintenance workers to start the conveyor belt not realising the heat detector engineer was on a tall platform working nearby. Unfortunately the conveyor hit the heat detection engineer who died from his fall injuries.
In another case, food manufacturer Fishgate was fined £100,000 over a failure to adequately assess the risks of working from height after one of its employees fell six metres when painting gutters and drainpipes outside the company factory. The employee, who suffered a dislocated arm, cracked pelvis, broken foot and shattered leg, had been working in an unsecured tote box that had been raised by a fork lift truck driver.
Beyond fines – the risk of imprisonment
Since the health and safety sentencing guidelines have come into force there has been a significant increase in immediate prison sentences imposed on individuals in the manufacturing sector.
In 2015, prior to the guidelines taking effect, there were just two sentences of immediate imprisonment imposed in the sector. However, in 2017 this increased to seven.
A similar rise is seen for suspended prison sentences being imposed – those being prison sentences served in the community under conditions such as carrying out unpaid work –although the level of fines for individuals are not significantly increased on pre-new guidelines times. This is because the courts will still apply the same means test to any individual fine as they did prior to the guidelines being imposed.
Whilst the figures of individuals being sentenced for health and safety offences are fairly low in comparison to companies, it does not diminish the fact that some individuals are at risk of prosecution and facing sentencing for health and safety offences in the manufacturing sector.
Actions for manufacturers
There are a number of positive steps that manufactures can take to address risks to health and safety to keep the workforce healthy and their business operating efficiently, and that can help them avoid time and effort in responding to enforcement action or paying fines.
Positive action must be driven from the top of the organisation.
The Institute of Directors has issued excellent guidance on health and safety leadership. Not only does active health and safety leadership keep people safe and prevent incidents, it also helps manufacturers to respond effectively to regulatory investigations and defend themselves against potential prosecution.
If manufacturers are convicted of an offence, being able to demonstrate health and safety leadership can also help them to minimise their liability when the sentencing guidelines are applied.
Senior management at manufacturers must also take steps to educate and inform employees about the steps they are taking to address health and safety risks.
As well as helping to prompt best practice behaviours by workers, effective communication can help make allies of those employees should HSE investigators visit the premises. When the HSE comes knocking, they will not head straight for the director's office. Instead, it is more likely that they will observe working practices and often speak to staff to get their impression of how the company manages health and safety risks.
We have observed cases where employees have given a negative impression of their employer's approach health and safety to HSE officers and this is something that manufacturers should take account of by listening to any concerns their workers have and regularly communicating the actions they are taking to keep employees safe.
At large manufacturers where there are many pressures, competing activities and issues to address, there is the potential for health and safety risks to fall down the priority list. However, failing to act on a known risk will also result in higher penalties for manufacturers under the sentencing guidelines. This has been demonstrated in a number of cases, as judges have specifically referred to the failing. Manufacturers must be aware that, when a health and safety issue is known, the potential financial consequences of any future prosecution are significantly increased.
In its manufacturing sector plan published in 2017, the HSE said that it will work together with industry bodies to develop guidelines and best practice. Manufacturers should actively engaging in this process. Doing so will help them demonstrate their commitment to safety. In addition, following relevant industry guidelines is an indicator that they are meeting their legal obligations.
Laura Page is an expert on the application of health and safety law in the manufacturing sector at Pinsent Masons, the law firm behind Out-Law.com. Pinsent Masons will be attending the Health and Safety exhibition and conference hosted by the British Safety Council on 10-12 April 2018 in Birmingham, where partner Sean Elson will be chairing a panel discussion on the challenges in modern manufacturing.
Tribunal sets out guidance on public benefit test for use of rooftops as telecoms sites