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Health and safety sentencing 'still hit and miss', says expert, as Whirlpool fined £700,000

Out-Law News | 28 Apr 2017 | 9:54 am | 2 min. read

The substantial fine recently imposed by a court against domestic appliances manufacturer Whirlpool UK Appliances Ltd (Whirlpool) illustrates "how hit and miss" the sentencing of health and safety offences can still be, an expert has said.

However, there were also indications that the company was the first to have been considered by a judge as 'very large' for the purposes of sentencing, given that the final fine of £700,000 had been reduced from an initial £1.2 million due to mitigating factors and a guilty plea, according to health and safety law expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com.

A new sentencing guideline for use by the courts in health and safety, corporate manslaughter and food safety and hygiene cases, came into force on 1 February 2016. The guideline was intended to ensure a consistent approach in the sentencing of individuals and organisations convicted of these offences by courts in England and Wales.

As a result of the new guideline, fines in health and safety cases are now directly linked to the risk of harm as a result of the failings, rather than any actual harm caused as was usually the case previously. Courts must now first assess the seriousness of the offence based on the offender's culpability and the risk of  harm; while fines are taken from a range depending on the size of the organisation, based on turnover or the equivalent.

Whirlpool had been prosecuted by the Health and Safety Executive (HSE) in relation to an incident at the site of the former Indesit factory in Yate, near Bristol, in March 2015. A self-employed contractor, who had been installing revised fire detection equipment from a height of nearly five metres, fell from a mobile elevated work platform (MEWP) and later died from his injuries.

A HSE investigation found that Whirlpool had no effective control or supervision in place to prevent conflicting work tasks from being carried out at the same time. The contractor fell after Whirlpool maintenance workers started up an overhead conveyor, unaware that he was working nearby. The movement caused the MEWP to tip over and the contractor to fall onto the factory floor.

Whirlpool pled guilty to breaching section 3 of the 1974 Health and Safety at Work Act at Bristol Crown Court. Based on the judge's findings of low culpability and harm category three, the starting point fine for a 'large' company under the sentencing guideline is £35,000. The judge instead opted for a starting point fine of £1.2 million, nearly 35 times greater, according to Bridges.

"It isn't clear if the judge took aggravating features into account, moving to a higher offence category; or if he decided to move outside of the range applicable for large companies completely by regarding Whirlpool as being very large," he said. "If he has done so, it would make this the first case of its kind."

"Given the significant departure from the starting point for large companies, I am minded to think the judge must have considered this company to be very large thereby moving outside of the appropriate range for companies with a turnover of £50 million. Step nine of the sentencing process requires the judge to provide reasons, and in the absence of any clear explanation for why the fine was so significant, perhaps Whirlpool is considering its options and an appeal to the Court of Appeal," he said.