New sentencing guidelines introduced for corporate manslaughter, health and safety and food safety

New sentencing guidelines have been published aiming to ensure a consistent, fair and proportionate approach to sentencing organisations or individuals convicted of corporate manslaughter, health and safety and food safety and hygiene offences.

Offences that come under the guidelines are very varied and could include a building firm that causes the death of an employee by not providing the proper equipment for working at height, a restaurant that causes an outbreak of e. coli poisoning through unsafe food preparation, a manufacturer that causes injury to a new worker by not providing training for operating machinery or a gas fitter whose sub-standard work leads to the risk of an explosion in someone’s home.

The publication of the guidelines ensures that for the first time, there will be comprehensive sentencing guidelines covering the most commonly sentenced health and safety offences and food safety offences in England and Wales. Until now, there has been limited guidance for judges and magistrates in dealing with what can be complex and serious offences that do not come before the courts as frequently as some other criminal offences.

The introduction of the guidelines means that in some cases, offenders will receive higher penalties, particularly large organisations committing serious offences – such as when an organisation is convicted of deliberately breaking the law and creating a high risk of death or serious injury. It is not anticipated that there will be higher fines across the board, or that they will be significantly higher in the majority of cases to those currently imposed.

The increase in penalties for serious offending has been introduced because in the past, some offenders did not receive fines that properly reflected the crimes they committed. The Council wants fines for these offences to be fair and proportionate to the seriousness of the offence and the means of offenders.

In order to achieve this, the guidelines set out sentencing ranges that reflect the very different levels of risk of harm that can result from these offences.

Corporate manslaughter always involves at least one death, but health and safety offences can vary hugely; they may pose the risk of minor harm or lead to multiple fatalities.

Food offences are also wide-ranging. They could involve poor hygiene or preparation standards in a restaurant kitchen that put customers at risk of illness or that cause fatal food poisoning.

The sentencing ranges also take into account how culpable the offender was. This could range from minor failings in procedures to deliberately dangerous acts.
While prison sentences are available for individuals convicted of very serious offences, most offences are committed by organisations and therefore fines are the only sentence that can be given.

The guidelines use the turnover of the offender to identify the starting point of the fine. Turnover is used as this is a clear indicator that can be easily assessed.

However, turnover is never the only factor taken into account. The guidelines require the court to “step back”, review and adjust the initial fine if necessary. It must take into account any additional relevant financial information, such as the profit margin of the organisation, the potential impact on employees, or potential impact on the organisation’s ability to improve conditions or make restitution to victims. This means sentences will always be tailored to the offender’s specific circumstances. Fines may move up or down or outside the ranges entirely as a result of these additional mandatory steps.

Legislation requires that any fine imposed must reflect the seriousness of the offence and take into account the financial circumstances of the offender. All factors being equal, a similar level of fine given to a large, wealthy corporation on the one hand and a sole trader with a modest turnover on the other would be unfair, just as the same speeding fine given to a premiership footballer and someone on an average income would not achieve the same level of punishment or deterrence.

The UK’s record on worker fatalities is good, but where such offences are committed, the Council believes fines should be available which reflect the seriousness of the offence.

As well as causing fatalities, health and safety offences may risk or cause a wide spectrum of injury and illness, including a life-changing disability or health condition for victims.

While addressing remedial action with offenders is the responsibility of the Health and Safety Executive rather than the courts, the guideline does provide for remedial orders to be made by the court in addition to or instead of punishment in cases where they may be appropriate. The guideline also includes a range of mitigating factors which allow for voluntary positive action to remedy a failure on the part of offenders to be reflected in sentences.

Click the following link to view the guide

Following their publication today, the guidelines will come into force in courts on 1 February 2016.

The Smoke and Carbon Monoxide Alarm (England) Regulations 2015

Introduction
This guidance explains the requirements of The Smoke and Carbon Monoxide Alarm (England) Regulations 2015, which came into force in England on 1St October 2015. The legislation does not apply to Scotland, Wales or Northern Ireland.

Who does this legislation apply to?
The legislation applies to all private rented sector landlord’s in England, i.e. landlord’s involved in residential letting. This includes unlicensed HMO’s.

The following types of premises are excluded from the regulations:

  • A defined long lease (as per the Leasehold Reform, Housing and Urban Development Act 1993 or leases which grant a right of occupation for a term of seven years or more.
  • Accommodation shared with the landlord or landlord’s family.
  • Student halls of residence, hostels and refuges, care homes, hospitals and hospices and other healthcare related accommodation.

What is required?
From the 1st of October 2015, landlord’s are required to do the following in relation all new and existing residential tenancies, there is no transitional period:

  • Provide a smoke alarm on each storey of the premises on which there is a room wholly or partly used as living accommodation. This includes floors which only have bathrooms and toilets on them. A heat detector is not an acceptable alternative.
  • Provide a carbon monoxide alarm in any room of the premises which is used wholly or partly as living accommodation and contains a solid fuel combustion appliance. This includes open fires, wood burners, Rayburns, Parkrays etc. Gas and oil fired appliances are excluded as they are covered by separate legislation.
  • For each new tenancy, check that the required alarms are in proper working order on the first day of tenancy. The first day is deemed to be the date specified in the tenancy agreement, irrespective of when the tenant actually moves in.

For mixed use tenancies, the same requirements apply, however:

  • The maintenance should follow the terms of the tenancy agreement.
  • The tenant is responsible for providing smoke and CO detectors in any sub-let or underlet property.
  • The landlord should send the tenant an annual reminder to check the alarms.

What is the difference between an alarm and a detector?
A smoke alarm or CO alarm is a self contained unit, while a detector has a built in sensor and is part of a system.

Type and Installation of alarms
The type of alarm and location for installation are not specified. While there is no requirement for them to be hard wired, none of the requirements under this legislation supersede specific fire related requirements under The Housing Act 2004 or The Regulatory Reform (Fire Safety) Order 2005 or from the outcome of any fire risk assessment.

The following general guidance is given:

  • Install as per manufacturers requirements.
  • Smoke alarms should be ceiling mounted in a circulation space.
  • CO alarms should be positioned at head height, approximately 1 – 3 metres from the carbon monoxide source.

Testing and Maintenance
Once the required alarms have been installed, it is the tenant’s responsibility to test the alarms. It is recommended that this is completed on a monthly basis.

In the event that alarms are not working, the tenant should contact their landlord for replacement of batteries or the alarm as necessary.

What if tenants deny access to fit the alarms?
Where the tenant refuses to allow access to for fitting of the alarms, the landlord should formally write to the tenant explaining that this is a legal requirement to protect the tenant’s own safety.

Enforcement
Local authorities will enforce these regulations. They have powers to issue remedial notices requiring alarms to be fitted. They can also fine the landlord up to £5,000.

The Smoke and Carbon monoxide Regulations 2015
The Smoke and Carbon monoxide Regulations 2015

Life changing fall

Brian Honeyman fell six metres while helping to re-roof a house in Stenhousemuir and, as a result of his injuries, will likely reside in a care facility for the rest of his life. Adam Menzies, a self-employed roofer from Falkirk, was sentenced for safety failings that led to a father-of-three falling from the roof of a house, resulting in horrific head and spinal injuries.

Mr Honeyman, now 50, had been brought in by Adam Menzies to help with the job in South View in July 2012.

After an investigation by the Health and Safety Executive (HSE), the Crown Office for the Procurator Fiscal Service (COPFS) charged Menzies with health and safety offences.

It said Menzies failed to ensure the work was properly planned, appropriately supervised or carried out in a manner which was, so far as is reasonably practicable, safe. He also failed to arrange provision of scaffolding or other means to prevent a fall.

Menzies, 43, of Falkirk Road, Larbert, Falkirk, pleaded not guilty to these charges. He was found guilty after a trial and sentenced at Falkirk Sheriff Court. He was fined £8,000.

Speaking after the hearing, HSE principal inspector Isabelle Martin said:

“Adam Menzies failed to provide a suitable scaffold that would have protected against this fall from height.

This disregard for basic safety precautions has resulted in Brian Honeyman suffering horrific injuries from which he will never recover. Sadly, HSE inspectors find this kind of poor practice is all-too-common on domestic refurbishment projects. Working at height remains one of the biggest causes of workplace deaths and serious injuries. There must always be fall protection when carrying out roof work, no matter how big or small the job that’s being done.”

Care home failures cause resident severe burns

A national care home provider and one of its employees have been prosecuted after a young woman suffered full thickness burns to more than 40 percent of her body from a scalding bath.

Thirty two year old Nicola Jones required major surgery including amputation of all her toes following the incident on 13 August 2013 at 8-10 Gideon Street in Bathgate. She was also left without any flesh on her ankles.  Nicola who had been a resident at the Real Life Options registered care home for 14 years, now has to use a wheelchair and faces more corrective surgery.

Although the immersion heater’s thermostat failed causing the scalding water in the taps, it was the failure by Sharon Dunlop to check the temperature of the water that was the direct cause of Nicola’s injuries. Colleagues who immediately came to Dunlop’s assistance claimed they ‘could feel the heat coming from the bathroom’ and suggested it must have been obvious to Sharon Dunlop that the water was scalding.

The court heard on the 22nd October, that Sharon Dunlop, a care support worker with 11 years experience, failed to check the temperature of the water before Nicola got in the bath. Staff members were supposed to check the water temperature before the service user bathed and fill out a record of this check. However written instructions confirming this were not provided by Real Life Options.

The Health and Safety Executive (HSE) investigation found no risk assessment was in place for the risk of exposure to scalding water and the thermometers provided in the home were inadequate.

Sharon Dunlop of Drummond Place, Blackridge, West Lothian pleaded guilty to breaching section 7 of the Health and Safety at Work etc. Act, 1974 and was served with a community payback order to carry out 160 hours of unpaid work over the next 10 months.

Real Life Options of David Wandless House, Knottingley Road, West Yorkshire, pleaded guilty to breaching section 3(1) of the Health and Safety at Work etc. Act, 1974 and was fined £20,000.

Speaking after the hearing HSE Inspector Hazel Dobb said:

“The injuries sustained by Nicola Jones were easily preventable by the simple act of checking the water temperature before she entered. Employers should ensure that their staff are provided with a thermometer and training in the safety aspects of bathing or showering people for whom they provide personal care.

Thermostatic mixing valves that reduce the maximum temperature of the water at the tap, have reduced the number of accidents such as this and are a requirement in registered care homes. However, they are no replacement for a physical check of the water temperature. I would also urge anyone with an immersion heater to check that it has a secondary thermostatic cut-out to prevent the hot tank boiling if it fails”.

 

Risk assessments are vital to ensure businesses operate safely.  Please watch our “How to check water temperature” video and read more about our water safety services, to ensure your business remains compliant, but more importantly, safe.

Family and Daughter exposed to asbestos

A court was told that the tenants of a house in Lincolnshire, including a three year old girl, were exposed to dangerous levels of deadly asbestos dust.

Blankney Estates Ltd, the company which rented the property in Scopwick, were fined by the judge at Lincoln Crown Court, after the plead guilty to health and safety offences. The court heard it did not manage adequately what were clearly deteriorating asbestos materials, and did not ensure that work within the property to remove an asbestos-lagged tank was properly planned and carried out safely by competent contractors.

The same court also fined plumbing company Michael Grace Ltd and Adam and John Thurlby, who were directors of a family-owned demolition company ART Dismantling Co Ltd. These defendants were prosecuted by HSE for breaching the Control of Asbestos Regulations (CAR) 2006 when they worked on removing the tank from the house.

Farming company Blankney Estates Ltd, registered address of Pannell House, Charles Street, Leicester, but with its main operations in Lincolnshire, pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974. It was fined £50,000 and ordered to pay £20,000 in costs. HSE said it failed in its Section 3 duty to take reasonable steps to ensure the premises were safe and to ensure that the work to remove the tank was done safely.

Adam Robert Thurlby, of Sandhill Road, Farndon, Newark, Nottinghamshire, and John Thurlby, of Malt Kiln Lane, Eagle Moor, Lincoln, also pleaded guilty. They were each fined £12,500 and were each ordered to pay £7,500 costs for contravening five CAR Regulations while acting as directors of ART Dismantling.

Michael Grace Ltd, registered address of St John Street, London, but trading locally in Lincolnshire, pleaded guilty to three CAR offences and was fined £10,000 plus £5,000 in costs.

Asbestos can be found in any building built before the year 2000 and causes around 5,000 deaths every year.

Quantum Compliance’s expert team are highly competent at assessing commercial and residential sites in order to assist in the prevention of asbestos related offences.  View our Asbestos Services.

Work related injury and ill health costing Britain billions annually

According to new figures published, more than a million people are being made ill by their work and it’s costing UK society £14.3 billion.

Despite Britain remaining one of the safest places to work in Europe, injury and ill-health statistics released by the Health and Safety Executive show that an estimated 27.3 million working days were lost due to work related ill health or injury in 2014/15.  In the same year 142 workers were killed, and there were 611,000 injuries in the workplace.

Of the estimated 1.2 million people who suffered from a work related illness, 516,000 were new cases.

View the HSE-Full-Report-Fatal-Statistics-2014-2015.pdf and industry specific data.

The HSE’s Chair Judith Hackitt comments:

“It’s encouraging that there have been improvements in injuries and ill health caused by work related activities. But behind the statistics are people, their families, friends, work colleagues, directly affected by something that’s gone wrong, that is usually entirely preventable. Nobody should lose their life or become ill simply from doing their job. These figures show that despite the great strides and improvements made over the last 40 years since Britain’s health and safety regime was established, there is still more that can be done”.

Key figures for Great Britain (2014/15)

  • 1.2 million working people suffering from a work-related illness
  • 2,538 mesothelioma deaths due to past asbestos exposures (2013)
  • 142 workers killed at work
  • 76,000 other injuries to employees reported under RIDDOR
  • 611,000 injuries occurred at work according to the Labour Force Survey
  • 27.3 million working days lost due to work-related illness and workplace injury
  • £14.3 billion estimated cost of injuries and ill health from current working conditions (2013/14)