New sentencing guidelines mean heavy fines for health and safety breaches, even where no harm caused, says expert

Out-Law News | 12 Sep 2016 | 2:37 pm | 2 min. read

Security firm G4S Cash Solutions has been fined £1.8 million after one of its employees contracted legionellosis, despite the fact that environmental health officers were unable to definitively link the case with health and safety breaches discovered at the site.

The fine could have been closer to £3m had the company not pleaded guilty, as a result of new sentencing guidelines linking fines to the risk of harm as a result of the failings rather than any actual harm caused, as had previously been the case, according to health and safety law expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com.

Large and very large businesses can now expect to face fines upwards of £1m for breaches of this type, making pro-active investment in health and safety risk management measures essential, Bridges said.

“What makes this fine even more significant is that it relates to a non-fatal prosecution and one where causation of any injury was not conclusively established,” he said. “It emphasises one of the key features of the new guidelines: that fines are to be linked to the ‘risk’ of harm, rather than the ‘actual’ harm sustained. Had it not been for a guilty plea, the fine could easily have been closer to £3m.”

“If any incentive were needed to pro-actively invest in health and safety risk management such as proper training, competent supervision, new equipment, planned maintenance etc., these eye-watering fines should be all that is needed. The cost of sensible preventative measures is likely to be dwarfed by fines in the event of a prosecution and conviction, irrespective of whether the breach results in a death or near-miss,” he said.

G4S was fined at Chelmsford Crown Court earlier this month, after it pleaded guilty to two charges under the 1974 Health and Safety at Work Act back in June. The company will also have to pay an additional £34,000 to cover the costs of the prosecuting local authority.

Harlow Council’s environmental health officers inspected the G4S site in Harlow in October 2013, following reports that an employee had contracted legionellosis, a potentially fatal form of pneumonia caused by inhaling contaminated water droplets. Although it was never confirmed that the disease was contracted from the site, the officers uncovered serious failures in the way that the building’s water systems were operated and managed. These included inadequate policies, monitoring and testing, and inadequate training for staff.

The new sentencing guideline for use by courts in England and Wales in health and safety, corporate manslaughter and food safety and food hygiene cases came into force on 1 February 2016. The guideline was designed to lead to much higher fines for the largest companies convicted of the most serious regulatory breaches, based on the offender’s culpability and the risk of serious harm. It also includes a non-exhaustive list of mitigating and aggravating factors that the courts can take into account when setting the level of fine.

Around 200 people are believed to work at the G4S site in Harlow, with various contractors and drivers visiting the site throughout the day, according to the local authority. Although the company told the court that it has now substantially updated its health and safety procedures, Harlow Council said that it had taken G4S “almost three years” to comply with minimum standards from the date of a 2012 risk assessment.

“One of the alleged criticisms was that the company failed to act on advice from its own consultants,” said health and safety law expert Kevin Bridges. “Many organisations will have access to either in-house or external competent safety advisors. Failing to seek – and, more significantly, act appropriately on – that advice is likely to result in a higher fine.”

“For large and very large companies, fines for fatal and non-fatal prosecutions where the risk of serious harm is substantial are now typically north of £1m. This is likely to be the tip of the iceberg, with more multi-million pound fines expected for those operating enterprises with a turnover of more than £50m,” he said.