Scottish health and safety fines ‘rising to English levels’

Willie Park of Pinsent Masons said the rulings, issued within a day of each other, showed that the level of fines the Scottish courts will impose “is rising and seems likely to continue to rise and get closer to levels seen in England”. He added that the judgments, which both concerned successful appeals, re-affirmed the Scottish courts’ established view that the English sentencing guidelines should only be used as “a point of reference” for checking the level of fine is appropriate in all the circumstances of a particular case. 

“Because of this, it remains difficult to say with any degree of certainty what view a sheriff will take on culpability, harm, mitigation and aggravation and what range a fine might fall into. However, it is reasonable to think that two successful appeals coming so close to each may well encourage more appeals,” Park said.

His comments came after one employer was fined following the death of Matthew Mason, a 20-year-old electrician, in June 2018. Mason died after falling from a height while installing a public address system in Bearsden Railway Station in East Dunbartonshire. While Linbrooke Services Ltd had comprehensive safe working practice policies in place, Mason and the other employees working at Bearsden Station were expected to follow instructions in a separate ‘briefing sheet’ that did not include necessary safety measures for working at heights.

Furthermore, a site visit – conducted just one day before the incident – identified issues with the step ladder provided for the task. Despite safety guidelines advising against using step ladders for certain tasks at height, a taller ladder was supplied in response, without conducting a proper risk assessment.

At a hearing of Dumbarton Sheriff Court in March 2023, Linbrooke was ordered to pay £200,000 in compensation to Mason’s family. In line with English guidelines, the court also ordered the company to pay a fine of £550,000 – which was reduced to £400,000 on appeal due to a double-counting error.

Linbrooke had sought to reduce its fine further, claiming that it had been wrongly categorised as a ‘large’ company due to the consideration of a recent draft accounts document indicating that it had annual turnover of more than £50 million. Linbrooke argued that its turnover had been less than £50m at the time when the trial, which was delayed by a number of years, had originally been scheduled to take place.

It said the

sheriff should have categorised it as a ‘medium’ company – a classification which it said would have resulted in a lower fine being levied by the court. But the High Court held that the delays to the trial did not justify the exclusion of the most up-to-date material available in assessing the company's turnover.

Health and safety law expert Charlotte O'Kane of Pinsent Masons said: “In any event, as the appeal court noted, categorisation relevant to turnover was only one step in the process of determining the level of fine that the court imposed. That process also involved stepping back and considering the case as a whole, factoring in the purpose of fining too.”

In the second case Tigh-Na-Muirn Limited, the operator of a retirement home in Monifieth, was fined £60,000 after pleading guilty to a breach of the 1974 Health and Safety at Work Act. The company's failure to properly manage the storage of cleaning chemicals resulted in the death of a resident with Alzheimer's disease during the Covid-19 lockdown.

The breach occurred when staff stored the cleaning agent in David Fyfe’s room, overlooking potential hazards. While the sheriff recognised the company's genuine efforts to maintain safety during the pandemic, she held that the company's Covid-19 response plan lacked proper consideration of the risks associated with storing chemicals in residents' rooms.

The company was initially fined £20,000 – reduced by one-third due to the early guilty plea – but this was successfully appealed by prosecutors for being unduly lenient. The High Court held that the sheriff missed the essence of the offence, which was a breach of statutory duties over an extended period of time which exposed Fyfe and other residents to a high risk of harm. 

O'Kane said: “The court also found that the sheriff had not adequately recognised the degree of risk and the extent of danger residents were exposed to as. The significance of aggravating factors was also minimised whist mitigations were emphasised.”

Park said: “In both cases, the High Court scrutinised how the respective sheriffs reached their assessment of the level of fine to be imposed and highlighted deficiencies in the approaches taken. The court’s judgment in the Tigh-Na-Muirn case is particularly critical of the sheriff’s methodology. The 200% increase in the fine imposed reflects just how badly the High Court believes the sheriff failed to recognise the seriousness of the risk of harm to which residents were exposed – and how long they were exposed to that risk.”

O’Kane said: “Together, these cases should serve as a reminder to all businesses operating in Scotland that they cannot, and should not, expect to receive a significantly lower fine than that which would be issued in England & Wales for the same offence. The health and safety legal regime applies across Great Britain and businesses should expect the same or similar outcomes whether their case comes before the courts in Scotland or in England & Wales.”