Since February 2016 we have seen headlines with eye-popping fines for larger organisations. Before February 2016 fines over £100,000 were unusual in health and safety breaches where no one had died; since then, there have been many fines over £1 million, not just for incidents resulting in fatalities, but in incidents with lesser injuries, or in some cases no proven harm at all. Average fines for the year 2016/17 were more than triple that of the previous year – from £90,604 to £280,974.
If you’d like to know more about how the fines are calculated check out our infographic here.
What doesn’t make the headlines quite so easily are the results of the appeals in these cases. The chart below summarises three appeal cases where the original fine was £1.8 million – the purple area shows the savings on appeal, the orange the total fine paid. Looking at these cases in more detail, can we see how C.RO Ports and TATA steel had successful appeals – and why the G4S appeal failed?
C.RO Ports London
Although staff had previously raised concerns about a powered capstan - a device for winding heavy ropes at the port in Fleet, Essex – C.RO had not conducted a suitable and sufficient risk assessment, nor provided a safe system of work. There was a near miss, but things did not improve. Then an employee caught his arm between the capstan and the heaving line, suffering multiple fractures and damage to ligaments and nerves, although he was eventually able to return to work. C.RO pleaded guilty to a breach of the Health and Safety at Work Act, for failing to ensure his safety. However, when they heard their fine was to be £1.8 million, they decided to appeal – they were not appealing their overall guilt, just the degree of the guilt. Although the original judgement was just before the Sentencing Guidelines came into effect, the judge appeared to be applying them.
An assessment of the highest category of culpability, with a medium likelihood of the accident, and a risk of death for a large company produces a starting point of £2 million. This was adjusted to reach £1.8m. At appeal, C.RO could argue that their culpability was only high (not very high) as they had an otherwise good record of safety, and they did have a risk assessment for mooring. They also argued that there was no risk of death – the worst that could reasonably be foreseen would be the middle category of harm, an injury resulting in “a substantial and long-term effect on the sufferer’s ability to carry out normal day-to-day activities or on their ability to return to work.” The appeal court agreed, and with a reduction in both culpability and severity of harm the fine fell to £500,000 – still more than would have been expected before the Sentencing Guidelines, but a good day for the C.RO appeal lawyers.
The original TATA Steel case involved two offences. As the judge at the original hearing explained.“Both incidents involved amputations of fingers and were entirely avoidable. They both involved operatives placing their hands into parts of machinery which were patently hazardous and likely to cause serious injury.” There was little scope to argue about this. However, what was curious about the fines is illustrated in the table below:
Tata steel had not done enough following the first accident to prevent the second, so the decision to increase the level of culpability between the two cases can be considered reasonable. However, the decision to increase the judgement of likelihood from medium to high shows a lack of understanding of probability. If you roll a six on a dice, the likelihood of rolling a six again remains 1 in 6. The appeal court had a better understanding of probability, and by reducing the likelihood to medium, the resulting fine for the second offence was reduced to £1.35 million.
In 2009 G4S produced a safety policy, never signed, that identified the need for a legionella risk assessment for its offices in Harlow, Essex. In 2012 they commissioned the required risk assessment, which identified 17 high-risk issues requiring action; most were not resolved, and no water management system was put in place. When charged with breaches of failing to ensure the safety of workers, and of others, G4S pleaded guilty. They did not expect the £1.8 million fine, calculated as follows:
- Culpability – very high (the highest category allowed – for “Deliberate breach of, or flagrant disregard for the law”
- Likelihood – Low
- Harm risked – Class A (the highest harm risked – death)
Whilst G4S could not argue that Legionnaires’ disease can kill, and would not want to argue with the likelihood, their appeal focussed on trying to prove their culpability was not “very high” but only high – that is “Offender fell far short of the appropriate standard … systemic failure within the organisation to address risks to health and safety”.
Other than turnover, culpability makes the biggest contribution to the fine. In this case, the appeal judge could see no reason to reduce culpability. The risk was easily foreseeable, as they had a risk assessment, and the controls for legionella are well understood. Some of the measures that G4S could have taken were cost-free - such as alternating water pumps to avoid stagnation. They had plenty of time to put a management system in place to make sure actions were defined, communicated and taken to control the risk from their water systems, but they didn’t.
The appeal was refused.
Many organisations have separate risk assessments and training records, whether on paper or in spreadsheets or documents. This makes the process of checking that training in hazard controls has been provided and refreshed at a suitable interval both time-consuming and prone to error. Effective Software have expedited this window of error by keeping all your records in one place through our risk assessment software module and training management software module.